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Sep 18 2015, 9:26 am
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE ROGER
Ryan Duffin W. HOKE, PERSONAL
Lori A. Coates REPRESENTATIVE OF THE ESTATE
Duffin & Hash LLP OF BRIAN HOKE, DECEASED
Indianapolis, Indiana
R.T. Green
Blackburn & Green
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Founders Insurance Company, September 18, 2015
Appellant-Plaintiff, Court of Appeals Case No.
49A02-1501-PL-8
v.
Appeal from the Marion Superior
Mark May, Pamela Coomer, Court
The Honorable Thomas J. Carroll,
and Roger W. Hoke as the Judge
Personal Representative of the
Cause No. 49D06-1302-PL-7690
Estate of Brian Hoke, deceased,
Appellees-Defendants,
Robb, Judge.
Case Summary and Issue
[1] Pamela Coomer, driving a vehicle owned by Mark May and insured by
Founders Insurance Company (“Founders”), was involved in an accident that
Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 1 of 21
ultimately resulted in the death of Brian Hoke. Coomer did not have a valid
driver’s license nor May’s permission to drive the vehicle. Founders filed a
complaint seeking a declaratory judgment that it had no duty to defend or
provide coverage for the accident pursuant to the terms of the insurance
contract and sought summary judgment. The trial court granted summary
judgment to Founders as to May and Coomer, but denied summary judgment
as to Roger Hoke as the Personal Representative of the Estate of Brian Hoke,
Deceased (“Hoke’s Estate”). Founders now appeals, raising the sole issue of
whether the trial court erred in denying summary judgment as to Hoke’s Estate.
We conclude the exclusions in the insurance contract relevant to this situation
are clear and unambiguous and do not violate public policy; therefore, the
exclusions are enforceable. Founders is entitled to summary judgment as to all
parties, and the trial court’s order denying summary judgment as to Hoke’s
Estate is reversed.
Facts and Procedural History
[2] In 2012, May and Coomer were involved in “a serious relationship.” Appendix
of Appellee at 1. May owned a pickup truck which Coomer would drive
“[m]aybe once a month[,]” id. at 5, although her driver’s license was suspended,
id. at 6-7. May knew that Coomer sometimes drove the truck because usually
when she did so, she was acting as a designated driver for him. In general,
however, May “doesn’t really like anybody to drive his truck.” Id. at 7.
Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 2 of 21
[3] On November 10, 2012, Coomer took May’s truck to visit her children. May
was not with her, and she did not have his permission to drive the truck that
day. When returning home, she struck Hoke, who was riding a bicycle. Hoke
did not have an automobile and did not have automobile insurance. He died
on November 27, 2012, from injuries he sustained in the collision. May’s truck
was insured on November 10, 2012, by Founders under a policy that provided,
in relevant part:
Part A – Liability Coverage
Insuring Agreement
A. We will pay damages for “bodily injury” or “property damage” for
which any “insured” becomes legally responsible because of an auto
accident. . . . We will settle or defend, as we consider appropriate, any
claim or suit asking for these damages. . . . We have no duty to defend
any suit or settle any claim for “bodily injury” or “property damage”
not covered under this policy.
B. “Insured” as used in this Part means:
...
2. Any person using “your covered auto”.
***
Exclusions
A. We do not provide Liability Coverage for any “insured”:
...
8. Using a vehicle without a reasonable belief that that “insured” is
entitled to do so.
Appellant’s Appendix at 12-13. In addition, an Amendatory Endorsement
modifying Part F – General Provisions of the policy provided:
No coverage is afforded under any Part of this policy if, at the time of
the accident, “your covered auto” . . . is being operated by a person
who is not a licensed driver, or is without a valid driver’s license,
whose driver’s license is revoked or suspended, or whose driver’s
license has been expired for more than 30 days, or is not legally
entitled to drive under Indiana law.
Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 3 of 21
Id. at 27.
[4] Hoke’s Estate filed a wrongful death suit against May and Coomer in July
2013. Founders filed a complaint for declaratory judgment against May,
Coomer, and Hoke’s Estate, seeking a declaration that it had no obligation to
provide coverage benefits under the policy because Coomer did not have a valid
driver’s license at the time of the accident nor did she have a reasonable belief
that she was entitled to use the truck on that date. In May 2014, Founders filed
a motion for summary judgment “as the evidence in this matter establishes that
Founders owes no duty to provide a defense or indemnification” to May or
Coomer. Id. at 32. It does not appear that May or Coomer answered the
complaint or filed a response to the motion for summary judgment. Hoke’s
Estate, however, filed a response in opposition to summary judgment, asserting
that Founders should not be permitted to deny insurance coverage as to Hoke’s
Estate, “an innocent, injured party” who “will be without any source of
compensation for losses suffered in the November 10, 2012 incident . . . .” Id.
at 104.
[5] On November 3, 2014, the trial court entered a summary ruling on Founders’
motion for summary judgment as to May and Coomer, finding that there is no
genuine issue of fact and Founders is entitled to summary judgment against
May and Coomer. However, the trial court’s order also stated that “all issues
remain or survive as to the remaining Defendant, [Hoke’s Estate].” Id. at 107.
Founders then sought and was granted permission to pursue this interlocutory
appeal of the trial court’s order with regard to the ruling as to Hoke’s Estate.
Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 4 of 21
Discussion and Decision
I. Standard of Review
[6] When we review a trial court’s ruling on summary judgment, we apply the
same standard as the trial court. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind.
2013). Summary judgment is appropriate where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.
Ind. Trial Rule 56(C). The appellant has the burden of persuading us that the
summary judgment ruling was erroneous. Amaya v. Brater, 981 N.E.2d 1235,
1239 (Ind. Ct. App. 2013), trans. denied. Where the facts material to the
proceedings are not in dispute, this court determines whether the trial court
correctly applied the law to the facts. Johnson v. Hoosier Enters. III, Inc., 815
N.E.2d 542, 548 (Ind. Ct. App. 2004), trans. denied. A case such as this one,
involving the interpretation of an insurance contract, is particularly appropriate
for summary judgment because the interpretation of a contract is a question of
law. Burkett v. Am. Family Ins. Grp., 737 N.E.2d 447, 452 (Ind. Ct. App. 2000).
II. Denial of Summary Judgment as to Hoke’s Estate
[7] The particular facts of this case present an issue of first impression in Indiana:
Does an insurer which has no duty to provide coverage benefits to its insured
pursuant to the plain terms of the insurance contract nonetheless have to pay
damages to an injured third party who has no independent source of insurance?
Founders contends that it does not have to pay those damages because it
reasonably limited its liability by the terms of its insurance contract to exclude
Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 5 of 21
coverage in these circumstances. Hoke’s Estate argues that permitting
Founders to deny coverage in this instance would contravene the public policy
underlying Indiana’s Financial Responsibility Act to provide “persons who
suffer loss due to the tragedy of automobile accidents . . . a source and means of
recovery.” Brief of Appellee at 3. Hoke’s Estate contends that the result it
seeks is “consistent with the result reached by appellate courts in other
compulsory insurance law jurisdictions,” id. at 6, and is supported by the
reasoning of Indiana decisions on similar issues.
A. Overview of Statutes and Caselaw
[8] Historically, Indiana required proof of financial responsibility for automobile
owners only after the occurrence of an accident. Although the primary purpose
of the then-Safety-Responsibility and Driver Improvement Act was “to facilitate
loss recovery by auto accident victims,” the statute was not a compulsory
insurance statute because means of proving financial responsibility other than
insurance were allowed. See Allstate Ins. Co. v. Boles, 481 N.E.2d 1096, 1101
(Ind. 1985). When the statute was amended in 1983 to require proof of
financial responsibility when registering a car, Ind. Code § 9-18-2-11, the law
still permitted proof of responsibility through bond, deposit of funds or
securities, and self-insurance in addition to traditional insurance, Ind. Code ch.
9-25-4. Thus, Indiana remains a “compulsory financial responsibility state.”
Transamerica Ins. Co. v. Henry, 563 N.E.2d 1265, 1267-68 (Ind. 1990).
“Indiana’s current financial responsibility scheme, like the prior one,
demonstrates a policy to protect automobile owners . . . from damages which
Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 6 of 21
might be inflicted on them by other cars out on the road.” Id. at 1268. To this
end, insurers must offer uninsured and underinsured motorist coverage in every
insurance contract. See Ind. Code § 27-7-5-2. “The purpose of uninsured
motorists insurance is to place the insured in substantially the same position as if
the other party had complied with the minimum requirements of the insurance
statutes.” Smith v. Allstate Ins. Co., 681 N.E.2d 220, 222 (Ind. Ct. App. 1997)
(emphasis added). “The purpose of our financial responsibility statute is to
compel . . . other motorists to make provisions for our protection.”
Transamerica Ins. Co., 563 N.E.2d at 1268. But the statutes do not “constitute a
social policy to guarantee compensation to all victims of motor vehicle
accidents.” Id.
[9] The out-of-jurisdiction cases cited by Hoke’s Estate are not particularly
instructive to this case. Hoke’s Estate cites Woody v. Georgia Farm Bureau Mut.
Ins. Co., 551 S.E.2d 836 (Ga. Ct. App. 2001), and Adams v. Thomas, 729 So.2d
1041 (La. 1999), both of which addressed policy provisions excluding
unlicensed drivers from coverage. In Woody, a split Georgia Court of Appeals
held that the unlicensed driver exclusion, although unambiguous and generally
enforceable, was unenforceable in that particular case because the injured third
party did not have uninsured motorist protection of his own. If the exclusion
were enforced, the injured party would not have access to insurance funds.
Relying on Georgia Supreme Court precedent in Cotton States Mut. Ins. Co. v.
Neese, 329 S.E.2d 136 (Ga. 1985), the Woody court held such a result would be
in contravention of the public policy served by Georgia’s compulsory insurance
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law. 551 S.E.2d at 837. In Neese, the Georgia Supreme Court noted that the
state’s Motor Vehicle Accident Reparations Act (or “no fault act”)—which
provided insurance coverage in virtually all circumstances to an injured
victim—was enacted simultaneously with the law making motor vehicle
liability insurance compulsory. 329 S.E.2d at 138-39. The Neese court held
these laws “established the public policy that innocent persons who are injured
should have an adequate resource for the recovery of their damages[,]” and
required viewing the effect of an exclusion from the viewpoint of the victim. Id.
at 141 (quotation omitted). Because our supreme court has expressly stated our
financial responsibility statute is not a compulsory insurance statute and does
not represent a policy of providing compensation to all victims of motor vehicle
accidents, Woody and Neese are inapposite.
[10] In Adams, the Louisiana Supreme Court noted that the state legislature had
specifically stated the public policy behind its compulsory insurance law: “all
liability policies . . . are executed for the benefit of all injured persons and their
survivors or heirs to whom the insured is liable . . . .” 729 So.2d at 1043. The
court further noted that the determination of “what is an acceptable exclusion
in an insurance policy is up to the legislature . . . .” Id. at 1044. Therefore, the
court held that a policy that excludes an unlicensed driver from coverage
without an express legislative directive is “an impermissible restriction on the
intent and purpose of the legislature’s statutory scheme enacted to ensure that
all Louisiana motorists have available to them automobile liability insurance
coverage.” Id. at 1044-45. Thus, Adams is distinguishable in several respects:
Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 8 of 21
in Indiana, enforceable exclusions do not have to be legislated; we have no
specific statement of legislative intent as to the policy behind our statutes; and
as with Woody, we do not have a compulsory insurance statute but a
compulsory financial responsibility law which our courts have stated does not
represent a policy of compensating all accident victims.
[11] Likewise, the Indiana cases cited by Hoke’s Estate are not directly applicable.
Hoke’s Estate asserts that in Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664
(Ind. 1997), Federal Kemper Ins. Co. v. Brown, 674 N.E.2d 1030 (Ind. Ct. App.
1997), Motorists Mut. Ins. Co. v. Morris, 654 N.E.2d 861 (Ind. Ct. App. 1995), and
Am. Underwriters Grp. v. Williamson, 496 N.E.2d 807 (Ind. Ct. App. 1986), our
courts “have engaged in an analysis similar to that utilized in Woody and Adams
and reached similar results.” Br. of Appellee at 8. With respect to Williamson,
Morris, and Brown, we note that the insurance company at issue was attempting
to rescind its insurance contract altogether due to misrepresentations made by
the insured when applying for the insurance. See, e.g., Williamson, 496 N.E.2d
at 810-11 (stating, based on a survey of cases from New York, Michigan, and
Georgia, that “it appears to have been universally held that an insurer cannot
on the ground of fraud or misrepresentation retrospectively avoid coverage
under a compulsory or financial responsibility law so as to escape liability to a
third party[,]” and overruling Automobile Underwriters, Inc. v. Stover, 148 Ind.
App. 555, 268 N.E.2d 114 (1971), which had established the right to rescind in
Indiana prior to the Financial Responsibility Act), disapproved by Guzorek, 690
N.E.2d at 672 (“Williamson is disapproved to the extent it holds that the liability
Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 9 of 21
insurer can never rescind due to material misrepresentations.”). That is not the
situation we have here, where Founders seeks to enforce its insurance contract.
[12] As for our supreme court’s decision in Guzorek, we note that it, too, was decided
in the context of whether a contract for insurance could be rescinded due to a
misrepresentation. We also note that it cast doubt upon the continued viability
of Williamson, Morris, and Brown. 690 N.E.2d at 672. It further declined to pass
on the question presented here as one not presented by the facts of that case:
“We leave for another day whether a liability insurer can deny coverage when
the third party does not have protection against uninsured motorists. This issue
is not settled under current precedent but is neither presented under these facts
nor argued by the parties.” Id.
B. Insurance Law in Indiana
[13] Without any case law directly on point, we turn to the basic principles of
contract law. An insurance policy is a contract, and in reviewing the policy, we
construe it as we would any other contract—to give effect to the parties’
intentions at the time the contract was made. Puente v. Beneficial Mortg. Co. of
Indiana, 9 N.E.3d 208, 217 (Ind. Ct. App. 2014). The freedom to contract is “a
bedrock principle of Indiana law,” id. at 218, and “the freedom of the parties to
exclude risks from an insurance contract is well established,” United Farm
Bureau Mut. Ins. Co. v. Hanley, 172 Ind. App. 329, 338, 360 N.E.2d 247, 252
(1977). “Generally, insurers are free to limit liability in any manner not
inconsistent with public policy, and an unambiguous exclusionary clause is
Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 10 of 21
ordinarily entitled to enforcement.” Williams v. Safe Auto Ins. Co., 980 N.E.2d
326, 330 (Ind. Ct. App. 2012) (quoting Am. Family Life Assurance Co. v. Russell,
700 N.E.2d 1174, 1177 (Ind. Ct. App. 1998), trans. denied). “Whenever a court
considers invalidating a contract on public policy grounds, it must always
weigh in the balance the parties’ freedom to contract.” Boles, 481 N.E.2d at
1101. “Only in cases which are substantially free from doubt will we exercise
our power to declare a contract void as contravening public policy.” Lexington
Ins. Co. v. Am. Healthcare Providers, 621 N.E.2d 332, 338 (Ind. Ct. App. 1993),
trans. denied.
[14] In general, an attempt to dilute or diminish uninsured or underinsured motorist
protection is contrary to public policy. See Am. Family Mut. Ins. Co. v. Federated
Mut. Ins. Co., 775 N.E.2d 1198, 1207 (Ind. Ct. App. 2002) (“Any insurance
language that dilutes statutory protection is contrary to public policy.”).
However, the exclusions upon which Founders would deny coverage in this
case do not dilute or diminish the uninsured or underinsured coverage
contained therein. Indiana Code section 27-7-5-2(a) mandates that insurance
companies offer uninsured and underinsured motorist protection “for the
protection of persons insured under the policy . . . .” 1 The uninsured and
underinsured provisions in May’s policy were for his own protection if an insured
1
The statute requires an insurance company to offer uninsured and underinsured coverage, Ind. Code § 27-7-
5-2(a), but the named insured may reject in writing both or either uninsured and underinsured coverage, Ind.
Code § 27-7-5-2(b).
Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 11 of 21
under his policy were to be in an accident with an uninsured or underinsured
motorist. Hoke was not uninsured or underinsured in the sense used by
Indiana Code section 27-7-5-2 mandating such coverage in insurance contracts
because as a non-motorist, he was not subject to financial responsibility
requirements at all. The exclusions at issue do not dilute or diminish May’s
uninsured or underinsured motorist protection because May was not entitled to
recover under those provisions. Likewise, Hoke’s Estate is not entitled to
recover under those provisions because Hoke was not an insured under May’s
policy.
[15] Here, the insurance contract excluded liability coverage for someone using the
vehicle without a reasonable belief that he or she is entitled to do so.
Appellant’s App. at 13. The insurance contract further included the condition
that no coverage would be afforded under the contract if the vehicle is being
operated by a person who is an unlicensed driver for any reason. Id. at 30.
These are clear and unambiguous provisions of the insurance contract
reasonably limiting Founders’ risk to liability for the conduct of an insured who
should and legally could be driving the vehicle. Because of the difference
between a compulsory insurance statute and our compulsory financial
responsibility statute, if May did not want to be subject to the exclusions at issue, 2
2
These exclusions were plainly stated in the policy of insurance and were not buried in fine print or
otherwise hidden. May knew that Coomer occasionally drove his vehicle; he presumably knew she did not
have a valid license; and he had also expressed to her he did not want her to drive his vehicle when he was
not present. See App. of Appellee at 44-46.
Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 12 of 21
he did not have to purchase a policy of insurance. Instead, he could have
posted a bond in the same minimum coverage amount he had insured himself
for through Founders and he would have been subject to no such restrictions.
The dissent does not believe the distinction between compulsory insurance and
compulsory financial responsibility statutes is significant. Not only has our
supreme court clearly stated that there is a legal distinction, see Transamerica Ins.
Co., 563 N.E.2d at 1267-68, but in this case there is also a factual distinction. In
a compulsory insurance state, it would be theoretically possible for an insured
to comparison shop for a policy of insurance without some or all of these
exclusions, but it is more of an improbable possibility than a likelihood that the
insured could find one. In a financial responsibility state such as Indiana, it is a
very real possibility to demonstrate financial responsibility under one’s own
terms rather than under the terms imposed by an insurance company.
[16] There is nothing inherent in the exclusions in the Founders insurance contract
that make them against public policy, it is only the particular circumstances of
this case that make enforcing them seem unjust. However, it is neither logical
nor consistent with the law of contracts that the enforceability of a contract of
insurance depends upon the status of the person with whom the insured is
involved in a collision. To hold otherwise would mean the same conduct under
the same contract of insurance could have drastically different results. If
Coomer had hit a motorist with uninsured/underinsured motorist protection
and the injured party’s insurer would have covered the damages per its own
contract of insurance, Founders would have been able to rely upon the
Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 13 of 21
exclusions in its contract. See Guzorek, 690 N.E.2d at 672 (“There is no injustice
in placing the loss with the third party’s insurer . . ., who has presumably been
compensated through its premiums for accepting the risk of an uninsured
tortfeasor.”). If Coomer had hit a motorist without insurance or one who had
rejected uninsured and/or underinsured motorist protection, see Ind. Code § 27-
7-5-2(b), then the injured party had accepted the risk of not having that
coverage, and Founders should have been able to rely upon the exclusions of its
contract. However, because Coomer was involved in a collision with a non-
motorist who was not subject to financial responsibility requirements at all, the
trial court determined that Founders was not able to enforce the clear and
unambiguous exclusions in its contract.3
[17] As between an insurer who contracted to provide coverage only under certain
circumstances and an insured who has an alternative if he wishes coverage in
all circumstances, why should the insurer be liable in contravention of the
express terms of the insurance contract? May knew he did not have insurance
coverage if the driver of his truck was unlicensed or was operating it without a
3
The trial court’s determination raises several practical questions, such as, if Founders has no duty to defend
or indemnify May or Coomer, from where does a duty to Hoke’s Estate arise? How exactly would the action
proceed if Founders has no duty to defend May or Coomer? Does Founders appear in Hoke’s Estate’s
lawsuit against May and Coomer and defend itself? Does Hoke’s Estate institute a direct action against
Founders if it should succeed in its lawsuit against May and Coomer? Could Founders assert the terms of the
contract of insurance as a defense in any such action? What would be the limits of Founders’ liability to
Hoke’s Estate if the contract is unenforceable as to May or Coomer? If the exclusionary provisions of the
contract are unenforceable, are the limits provisions nonetheless enforceable, and would that be a matter of
judicially picking and choosing which provisions of the contract may be enforced and which may not?
Because of our resolution of this case, however, we need not answer these questions.
Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 14 of 21
reasonable belief in the right to do so. If Founders cannot rely on the clear and
unambiguous terms of its contract for insurance here, could it ever rely on any
provision of its contract? Determining an insurer’s liability only after an
accident occurs and the status of the victim is ascertained creates the possibility
of disparate treatment of similarly situated insurers. The uncertainty
occasioned by the inability of an insurer to rely on reasonable limits to its
liability would most likely be passed along to the insured in the form of higher
premiums to cover the unknown risk or the constriction of insurance coverage
in general.
[18] We have great sympathy for the Hokes and their loss. However, “a third
party’s right to recover through liability insurance is not absolute.” Guzorek,
690 N.E.2d at 672. The dissent would base its decision on the public policy
“that persons who suffer loss due to the tragedy of automobile accidents shall
have a source and means of recovery,” see slip op. at 19-20 (quoting Williamson,
496 N.E.2d at 810), and require Founders to be that source for Hoke’s Estate.
However, the source and means of recovery is grounded in the insurance
contract itself. The general policy of making insurance available to compensate
for losses arising from motor vehicle collisions does not trump the long-standing
precedent allowing an insurer to reasonably limit its liability, nor should the
recompense of one victim take precedence over the importance of providing
affordable insurance to all motorists. Founders limited its risk to permissive,
licensed drivers of this vehicle and fixed its premiums on that basis. There is no
public policy against such limitations, there is simply the unfortunate reality
Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 15 of 21
that this injured party has no access to insurance proceeds under these
circumstances.
Without minimizing the importance of the doctrine that contracts
should not be enforced if they contravene public policy, many courts
have cautioned against recklessness in condemning contracts as being
in violation of public policy. Public policy, some courts have said, is a
term of vague and uncertain meaning, which it pertains to the
lawmaking power to define, and courts are apt to encroach upon the
domain of that branch of the government if they characterize a
transaction as invalid because it is contrary to public policy, unless the
transaction contravenes some positive statute or some well-established
rule of law.
Schornick v. Butler, 205 Ind. 304, 185 N.E. 111, 113 (1933) (quoting Hogston v.
Bell, 185 Ind. 536, 544, 112 N.E. 883, 885 (1916)). We cannot say this is a case
in which we should refuse to enforce the insurance contract on public policy
grounds. Though recovery may be more difficult, Hoke is not without a
remedy as he may still seek damages from May and Coomer.
Conclusion
[19] Founders is entitled to judgment as a matter of law on its complaint for
declaratory judgment in all respects. The trial court’s summary judgment order
denying summary judgment as to Hoke’s Estate is therefore reversed.
[20] Reversed.
Mathias, J., concurs.
May, J., dissents with opinion.
Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 16 of 21
IN THE
COURT OF APPEALS OF INDIANA
Founders Insurance Company, Court of Appeals Case No.
49A02-1501-PL-8
Appellant-Plaintiff,
v.
Mark May, Pamela Coomer, and
Roger W. Hoke as the Personal
Representative of the Estate of
Brian Hoke, deceased,
Appellees-Defendants,
May, Judge, dissenting.
[21] Summary judgment as to Hoke was properly denied. I acknowledge the
majority’s concern that “[d]etermining an insurer’s liability only after an
accident occurs and the status of the victim is ascertained creates the possibility
of disparate treatment of similarly situated insurers.” (Slip op. at 14.) But the
result the majority reaches in its effort to avoid “disparate treatment of similarly
situated insurers” gives rise to a far greater concern – disparate treatment of
innocent persons who are accident victims. As the majority result has the effect
of depriving pedestrians, bicyclists, and other non-drivers of recovery that
would remain available to motorists involved in traffic accidents, I must
respectfully dissent.
Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 17 of 21
[22] I agree with the majority that the particular facts of this case present an issue of
first impression in Indiana. But the majority’s narrow characterization of
Indiana’s public policy is not required by our Indiana Supreme Court’s
precedent and would lead to harsh and unfair outcomes, because it would result
in protection for drivers injured in motor vehicle accidents but would leave no
remedy for pedestrians, bicyclists, or other persons who need not or cannot
prove financial responsibility.
[23] Specifically, I would decline to hold, as the majority appears to, that the well-
established and almost universally-recognized public policy to protect innocent
victims from financial loss by reason of the acts of irresponsible operators of
motor vehicles applies only in “compulsory insurance” states but not in
“compulsory financial responsibility” states like Indiana. 4 That surely is not a
4
I do not find the distinction between “compulsory financial responsibility” and “compulsory insurance” so
significant that it should serve to deprive innocent non-driver victims of motor vehicle accidents of a
mechanism for recovery that is available to drivers. Courts have often used the terms interchangeably, e.g.,
Dunn v. Safeco Ins. Co. of Am., 798 P.2d 955, 958 (Kan. Ct. App. 1990): “[r]egardless of the reasoning used, all
courts that have considered the question as it pertains to an innocent third party have held that an insurer
cannot, on the ground of fraud or misrepresentation, retrospectively avoid coverage under a compulsory
insurance or financial responsibility law so as to escape liability to an innocent third party.” (Emphasis added.)
The majority suggests “if May did not want to be subject to the exclusions at issue, he did not have to
purchase a policy of insurance. Instead, he could have posted a bond in the same minimum coverage
amount he had insured himself for through Founders and he would have been subject to no such
restrictions.” (Slip op. at 13) (footnote omitted). It is a long-standing public policy that persons who suffer
loss from automobile accidents should have a source and means of recovery. I would not place outside the
scope of that policy those Hoosiers affluent enough to satisfy financial responsibility requirements without
buying insurance. An innocent victim’s ability to recover should not depend on an automobile owner’s
income level.
Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 18 of 21
result our legislature intended would flow from the compulsory financial
responsibility statutes.
[24] I am fully cognizant of the importance of public policy generally favoring the
enforcement of contracts, and I acknowledge our Supreme Court’s statement on
which the majority relies as its articulation of our public policy that “Indiana’s
current financial responsibility scheme, like the prior one, demonstrates a policy
to protect automobile owners . . . from damages which [sic] might be inflicted on
them by other cars out on the road.” Transamerica Ins. Co. v. Henry, 563 N.E.2d
1265, 1268 (Ind. 1990) (emphasis added). That was an appropriate statement of
policy in Henry, where tortfeasor and victim were both drivers, and I do not
suggest automobile owners are undeserving of protection.
[25] But I would not attribute to our legislature a public policy that protects only
accident victims who happen to be automobile owners or drivers, and leaves to
fend for themselves pedestrians, bicyclists, and other non-drivers who need not
or cannot prove financial responsibility or who are otherwise not subject to the
financial responsibility laws. As the majority correctly notes, our Indiana
Supreme Court has not foreclosed a policy that would place non-drivers on an
equal footing: “[w]e leave for another day whether a liability insurer can deny
coverage when the third party does not have protection against uninsured
motorists.” Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 672 (Ind. 1997).
[26] I believe a more useful statement of our public policy in this case is that “it is
the policy of this state that persons who suffer loss due to the tragedy of
Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 19 of 21
automobile accidents shall have a source and means of recovery.” Am.
Underwriters Grp., Inc. v. Williamson, 496 N.E.2d 807, 810 (Ind. Ct. App. 1986),
(disapproved on other grounds by Guzorek). This policy typically guides courts in
other jurisdictions who face fact situations like ours, and I believe that analysis
strikes a better balance between protection of insured motorists and that of
accident victims who are not motorists.
[27] In McCarthy v. Motor Vehicle Acc. Indemnification Corp., 224 N.Y.S.2d 909, 921
(App. Div. 1962), aff'd, 188 N.E.2d 405 (N.Y. 1963), the Appellate Division
surveyed the law in this area:
Many states have recognized the need to protect innocent victims from
financial loss by reason of the acts of irresponsible operators of motor
vehicles. Recent legislation has been enacted in several jurisdictions to
remedy such situations and to fill the gaps which have existed.
Despite differences in the various statutes a common thread runs
through all of them -- that the perspective from which the problem
must be considered is the interests of the victim and not the actor.
Thus in Hartford Acc. & Indem. Co. v. Wolbarst, 95 N.H. 40, 43, 57 A.2d
151, 153, where the collision was deliberately or intentionally caused,
the court stated as follows: “The purpose of the New Hampshire
Financial Responsibility Act was fundamentally to provide
compensation for innocent persons who might be injured through
faulty operation of motor vehicles.” In re Opinion of the Justices, 81
N.H. 566, 129 A. 117, 39 A.L.R. 1023. “Financial responsibility
statutes have been passed in many states, and are in the process of
preparation in still others, to secure the solvency of operators upon the
highways of those states, and to guarantee their ability to discharge
judgments arising out of accidents in which they might be involved * *
*. The beneficiaries of such an act and of such a policy, when issued,
are the members of the general public who may be injured in
automobile accidents by such person; and the policies are generally
construed with great liberality to accomplish their purpose.” 7
Appleman, Insurance Law and Practice, § 4295 [62, 63].
Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 20 of 21
[28] It further noted liability insurance is coming to be regarded more as a device for
providing funds to meet the needs of injured persons and less as a device for the
protection of the insured. Id. at 922. Statutory recognition of this trend is
manifested in financial responsibility laws, the purpose of which is to indemnify
innocent third persons and to protect the general public from financially
irresponsible motorists. Id. Since the basic purpose of the financial
responsibility laws is not to afford financial protection to the insured, but rather
to compensate his innocent victim, there is no reason why the victim’s rights
should depend upon the motivation of the insured’s conduct. Id. Nor are the
victim’s rights against the insurer derived through the insured. Id.
[29] Today we address the question our Supreme Court explicitly left unresolved in
Guzorek: whether a liability insurer can deny coverage when the third party
does not have protection against uninsured motorists. I agree with the courts of
other states that the perspective from which the financial responsibility question
must be considered is the interest of the victim and not the actor, and that the
purpose of the financial responsibility laws is to indemnify innocent third
persons and to protect the general public from financially irresponsible motorists.
[30] I cannot join the majority opinion to the extent it would, in order to protect
insurance companies from perceived “disparate treatment,” deprive non-
motorist accident victims of recovery that is available to accident victims who
are motorists, and I must therefore respectfully dissent.
Court of Appeals of Indiana | Opinion 49A02-1501-PL-8 | September 18, 2015 Page 21 of 21
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[NOT FOR PUBLICATION-NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
____________________
No. 01-1938
UNITED STATES,
Appellee,
v.
RIGOBERTO VALDÉS, A/K/A "RIGO,"
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
____________________
Before
Torruella, Lynch and Lipez, Circuit Judges.
____________________
Elizabeth A. Howe on brief for appellant.
Thomas F. Klumper, Assistant United States Attorney, Guillermo
Gil, United States Attorney, and Jorge E. Vega-Pacheco, Assistant
United States Attorney, on brief for appellee.
____________________
June 19, 2002
____________________
Per curiam. In 1995, Rigoberto Valdés was convicted
after a guilty plea of a drug crime. By petition under 28 U.S.C.
§ 2255 (2000), brought on August 4, 1999, Valdés had his right to
appeal reinstated because the district court found that Valdés's
second trial counsel failed to file a timely appeal despite
Valdés's instructions to do so. Valdés now takes that appeal and
uses it to argue that his first trial counsel, who represented him
during the early stages of plea negotiations, provided
constitutionally defective legal representation. See Strickland v.
Washington, 466 U.S. 668 (1984).
Valdés claims that his first trial counsel was
ineffective because that counsel did not tell him of an earlier,
more beneficial offer of a shorter sentence that the government
allegedly made during the plea bargaining. Valdés says he became
aware of this earlier plea offer on the day he accepted the less
favorable plea, April 4, 1995. The first time he raised this as a
legal issue was almost six years later, at the March 2001
evidentiary hearing on his pro se § 2255 petition, when he made a
pro se motion to amend his § 2255 petition to add the ineffective
assistance claim based on his first counsel's performance. This
pro se motion to amend was brought nineteen months after the
initial petition. The magistrate judge outlined the factual
allegations of Valdés's new claim in his report and recommendation,
but said that "[t]he matter was not considered" in his report.
Instead, he recommended that Valdés be resentenced to reinstate his
right to direct appeal.
-2-
At resentencing, Valdés's counsel submitted a motion
presenting grounds for a lesser sentence, including the allegation
that Valdés's first counsel had not communicated the initial
government offer. At the hearing, counsel attempted to raise the
issue, but was cut short by the district judge, who stated "that
is an issue for appeal, if you think. I think the Magistrate
touched on it a little bit but that would be an issue on appeal."
Based on this colloquy and the magistrate judge's report, it is not
clear whether the district court ever denied Valdés's motion to
amend his § 2255 petition to include the ineffective assistance
claim, or whether it merely deferred disposition of the motion.
We typically require that an ineffective assistance claim
be presented first to the district court in a collateral
proceeding, not on direct appeal, so that the pertinent facts may
be developed and found by the district court. United States v.
Ramirez-Benitez, No. 00-1497, 2002 WL 1079361, *7 (1st Cir. June 4,
2002). Both parties urge that we nonetheless consider the
ineffective assistance claim because, in their view, the facts are
simple. The parties are wrong because, whether the facts are
simple or complex, they are disputed, and that dispute needs to be
resolved by the district court in a collateral proceeding, if at
all. The government, for its part, has quite improperly submitted
an affidavit, which was never presented to the trial court,
directly to this court. This court, as the government should know,
is not the initial trier of fact, particularly when the facts are
disputed. Benham v. Lenox Sav. Bank, No. 01-2101, 2002 WL 1080718,
-3-
*2 (1st Cir. June 4, 2002). Valdés has also asked us to remand the
direct appeal to the district court for further fact-finding, but
that is not the correct procedural mechanism for an ineffective
assistance claim that was not raised in his initial petition.
We dismiss the direct appeal as premature on the merits
of the ineffective assistance claim, subject to one limitation.
Based on the colloquy between the district judge and Valdés's
attorney at the sentencing hearing, we construe Valdés's appeal to
include an appeal of the district court's denial or deferral of his
motion to amend the § 2255 petition. Because the factual record is
insufficiently developed for us to consider the merits of the
ineffective assistance claim on direct appeal, we remand the case
for a determination on whether to allow Valdés's motion to amend
his § 2255 claim. Cf. Rodriguez v. United States, 286 F.3d 972,
980-81 (7th Cir. 2002) (motion to amend habeas petition is untimely
unless it is filed within one year statute of limitations, or
relates back to the original filing). If the district court allows
the motion to amend, it should determine the merits of Valdés's
ineffective assistance claim under § 2255. That merits order would
be subject to appeal, as would be an order denying the motion to
amend.
So ordered.
-4-
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Case: 11-41049 Document: 00511824378 Page: 1 Date Filed: 04/17/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 17, 2012
No. 11-41049
Conference Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROSALIO GONZALEZ-HERNANDEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:11-CR-711-1
Before JONES, Chief Judge, and JOLLY and SMITH, Circuit Judges.
PER CURIAM:*
The Federal Public Defender appointed to represent Rosalio Gonzalez-
Hernandez 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). Gonzalez-Hernandez has filed a response. The record
is insufficiently developed to allow consideration at this time of Gonzalez-
Hernandez’s claims of ineffective assistance of counsel; such claims generally
“cannot be resolved on direct appeal when the claim[s] [have] not been raised
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-41049 Document: 00511824378 Page: 2 Date Filed: 04/17/2012
No. 11-41049
before the district court since no opportunity existed to develop the record on the
merits of the allegations.” United States v. Cantwell, 470 F.3d 1087, 1091 (5th
Cir. 2006) (internal quotation marks and citation omitted). We have reviewed
counsel’s brief and the relevant portions of the record reflected therein, as well
as Gonzalez-Hernandez’s response. We concur with counsel’s assessment that
the appeal presents no nonfrivolous issue for appellate review. Accordingly, the
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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478 F.2d 1399
U. S. ex rel. Rakshysv.DeRamus
72-1978
UNITED STATES COURT OF APPEALS Third Circuit
5/15/73
M.D.Pa., 358 F.Supp. 333
AFFIRMED
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184 Cal.App.2d 262 (1960)
MARION T. KENNEALLY, Appellant,
v.
MERLE G. KNOX, Respondent.
Civ. No. 24636.
California Court of Appeals. Second Dist., Div. One.
Aug. 30, 1960.
Barry Sullivan for Appellant.
Adams & Ball for Respondent.
LILLIE, J.
On March 17, 1955, in Santa Clara County, defendant filed an action for divorce against plaintiff, who had taken up residence with a married man in Los Angeles. Two minor children, now 10 and 14, were then taken from plaintiff by a warrant issued by the Santa Clara Superior Court. Thereafter, a property settlement agreement was entered into and on August 30, 1955, defendant was granted an interlocutory decree of divorce in the Santa Clara County action. Pursuant to this decree, and the property settlement agreement upon which it was based, the permanent custody of the two children was awarded to defendant, subject to reasonable visitation by plaintiff including the right to have them with her for two weeks during each summer vacation. A month later, after having obtained a divorce in Mexico, plaintiff remarried continuing her residence in Los Angeles County. Defendant in August of 1956, moved to Wisconsin taking the children with him, where he remarried in 1957. The children have lived with defendant in Wisconsin since, although plaintiff had them with her for two weeks during the *263 summer vacation of 1956 and 1957. In 1958 a controversy arose between the parties and the children did not visit plaintiff in California. In August of 1959, under the decree of August 30, 1955, the children were sent by defendant in Wisconsin to plaintiff in California for a two-week visit, but thereafter, plaintiff failed and refused to return them to their home. To secure their custody, defendant on October 28, 1959, had the Superior Court of Santa Clara County issue against plaintiff an order to show cause in re contempt for failing to return the children, and an order to show cause re modification to deprive her of the right to have the children during future summer vacations. At the request of plaintiff, venue was changed to Los Angeles County, whereupon she served on defendant a complaint for custody of minor children and an order to show cause re modification--to vacate the portion of the interlocutory decree of divorce of August 30, 1955, awarding the minors to defendant and to secure their permanent custody.
All matters were heard together by the Superior Court of Los Angeles County. After discussing the situation in chambers with the parties, counsel and the children, and hearing the witnesses on oral proceedings in open court, the trial judge, on November 17, 1959, made the within order--denying the plaintiff's order to show cause re modification, directing plaintiff to surrender the children to defendant forthwith for removal to their home in Wisconsin, declaring "plaintiff is awarded the right of physical custody of the minor children for one month during the summer vacation period beginning July 1, 1960, and continuing for one month thereafter," and ordering plaintiff "to deposit a surety or cash bond in the sum of $2,500 with the County Clerk of Los Angeles County to insure the return of the minor children to Wisconsin at the end of the one- month period." By subsequent order dated November 19, 1959, the trial court declared the interlocutory judgment of August 30, 1955, to be valid, and directed the defendant's order to show cause re modification filed in Santa Clara, off calendar.
Plaintiff appeals solely from that portion of the order providing that "(p)laintiff is ordered to deposit a surety or cash bond in the sum of $2,500 with the County Clerk of Los Angeles County to insure the return of the minor children to Wisconsin at the end of the one-month period." (A.O.B., p. 1.)
Arguing that the mother of a minor has a natural right of visitation, denial of which is "not discretionary," and that *264 rights of reasonable visitation ensue from parenthood and cannot be limited by a provision of the kind contained in the court's order, appellant contends, without citation of authority on the point, that the trial court was without jurisdiction to require her to deposit bond to insure the return of the children to the defendant in another state; and moreover, in making such an order the trial court abused its discretion. In her reply brief, appellant claiming to be part Negro, introduces an additional argument going to jurisdiction, that under then section 60 of the Civil Code, her marriage to defendant was illegal and void and "Civil Code, Section 200, gives the custody of illegitimate children to the mother." (P. 2.)
Citing section 138, Civil Code, providing that the lower court may make any order for the custody of minors "as may seem necessary or proper" guided by what "appears to be for the best interests of the children," In re Pinnell, 52 Cal.App. 177 [198 P. 215], holding in a guardianship proceeding a court's order that "each of the parties should give a bond conditioned that the minor child should not be removed from the jurisdiction of the court" to be a proper and reasonable regulation authorized by section 214, Civil Code (similar to 138), and Barrett v. Barrett, 210 Cal. 559 [292 P. 622], and other cases, declaring that the trial court is invested with a large measure of power and discretion where minor children are concerned and that its conclusion will not be disturbed on appeal unless it clearly appears that its discretion has been abused--respondent claims that included in the broad power of the court to act in the best interests of the minors is the power to protect the interests of the children, even to requiring a guarantee that when removed from custody in this state they will be returned at the proper time to the parent whom the court has heretofore deemed to be best suited to have their permanent custody; and that in consideration of the plaintiff's conduct, finances and other circumstances disclosed by the evidence and affidavits on file, there was no abuse of the lower court's discretion in requiring the $2,500 bond.
Neither the plain language of the lower court's order of November 17, 1959, awarding physical custody of the children to the plaintiff for one month during the summer vacation beginning July 1, 1960, and requiring the posting of a $2,500 bond to insure their return at the end of "the one-month period," nor the circumstances surrounding the granting of the same (including the continuing existence and validity of the permanent custody and visitation order in the decree of *265 August 30, 1955, the subsequent conduct of the plaintiff, and the number of proceedings filed upon plaintiff's failure to return the children to their home in Wisconsin after exercising her visitation right in August, 1959) justify any other construction of the order than that its provisions are expressly limited to a one-month visitation in the summer of 1960, specifically from July 1 to August 1. Conceding this interpretation to be a proper one, appellant in her reply brief, after citing the order in question, declares: "Note the words: 'For One Month ... Summer Vacation ... July 1, 1960, and Continuing for One Month.' This says for one month in 1960, it does not state a month each summer, and for this one month in 1960, appellant is to deposit $2,500 cash or surety. ..." (P. 3.)
The lower court's order provides for physical custody of the children in the plaintiff for a period of one month during 1960, the month of July, and for nothing more. It is clear from the record before us that in subsequent years and that until further order of court, the parties will be guided by the terms of the permanent decree of August 30, 1955, declared by the trial judge to be valid and in full force and effect (order, November 19, 1959) providing for a two-week visitation every summer vacation. Inasmuch as the trial court denied relief on plaintiff's complaint for custody of minor children, declared the decree of August 30, 1955, to be valid, and denied plaintiff's order to show cause re modification praying for custody, it is obvious that except for the year 1960, the trial court did not intend its order of November 17, 1959, to supersede the permanent custody and visitation order of August 30, 1955, which contains no provision for the posting of bond in the future; but on the contrary, the lower court intended and so declared it to apply solely to a one-month visitation in July, 1960.
The situation being thus, the issue submitted on appeal has now, by lapse of time become moot; and we deem a decision thereon by this court to in no way affect the rights of the parties for the time already passed, nor their substantive rights in the future. In fact, no justiciable controversy now exists, for the time for the visit of the children under the order has long expired; nor is there any provision in the permanent custody order of August 30, 1955, for the posting of bond to guarantee the return of the children when plaintiff exercises her two-week visitation right in subsequent years. Thus the issue of jurisdiction raised on this appeal presents an abstract *266 question of law, the determination of which could at most be of only academic interest. As to the matter of the lower court's discretion in requiring the bond under the present circumstances, no citation of authority is needed for the declaration of the fundamental rule that all matters relating to the custody, visitation and welfare of children are by their very nature changeable and subject to judicial modification upon proper grounds. What constitutes a true state of affairs in that regard in 1960, the next year will not necessarily support; the attitudes, conduct, finances and abilities of the parties may change as well as that which best serves the interests of the children. The situation here presented for 1960 may never arise again between the parties, inasmuch as the children are growing older and the parties have had the benefit of a court hearing; and a determination of whether the trial court abused its discretion in making the within order under the special and individual circumstances here involved will be of no assistance to the parties in subsequent years if another controversy arises.
[1] The period in question, having automatically expired by lapse of time during the pendency of this appeal (Covina Union High School v. California Interscholastic Federation, 136 Cal.App. 588 [29 P.2d 323]; Hidden Harbor v. American Federation of Musicians, 134 Cal.App.2d 399 [285 P.2d 691]), we deem the issue before us now to be moot, of academic interest only and to constitute an abstract question of law--not subject to review or consideration by this court. (Keefer v. Keefer, 31 Cal.App.2d 335 [87 P.2d 856].) Inasmuch as this is the sole issue before us rendering the entire case moot, respondent's motion to dismiss the appeal is hereby granted. (Consolidated Vultee Aircraft Corp. v. United Auto. etc. Workers, 27 Cal.2d 859 [167 P.2d 725].)
For the foregoing reasons the appeal is dismissed.
Fourt, Acting P. J., and Scott (Robert H.), J. pro tem., [fn. *] concurred.
NOTES
[fn. *] *. Assigned by Chairman of Judicial Council.
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460 F.3d 1217
In re PHENYLPROPANOLAMINE (PPA) PRODUCTS LIABILITY LITIGATION,* Shantell Allen, on behalf of Allen, Vera, et al.,* Plaintiffs-Appellants,v.Bayer Corporation, et al., Defendants-Appellees.Leon Anderson, Jr., et al.,* Plaintiffs-Appellants,v.Bayer Corporation, et al., Defendants-Appellees.Leslie Ackel, et al.,* Plaintiffs-Appellants,v.Bayer Corporation, et al., Defendants-Appellees.Bridgett Arrington, et al.,* Plaintiffs-Appellants,v.Bayer Corporation, et al., Defendants-Appellees.Calvin McGriggs, et al.,* Plaintiffs-Appellants,v.Delaco Company, et al., Defendants-Appellees.Betty Clinton, et al.,* Plaintiffs-Appellants,v.Delaco Company, et al., Defendants-Appellees.Donna Sasseen, Plaintiff-Appellant,v.IDE Interstate Inc., et al., Defendants-Appellees.Elizabeth Page, Plaintiff-Appellant,v.Bayer Corporation, Defendant-Appellee.Marie Riley, Plaintiff-Appellant,v.Wyeth, obo itself and its unincorporated division, Wyeth Consumer Healthcare, fka Whitehall-Robins Healthcare formerly known as American Home Products Corporation, et al., Defendants-Appellees. andKeva K. Alford, on behalf of all wrongful death beneficiaries of Henry Dexter, et al.,* Plaintiffs-Appellants, andEddie Bullock, et al., Plaintiffs,v.Wyeth, obo itself and its unincorporated division, Wyeth Consumer Healthcare, fka Whitehall-Robins Healthcare formerly known as American Home Products Corporation, et al., Defendants-Appellees, andNovartis Pharmaceuticals Corporation, et al., Defendants.Bobby Holmes, et al., Plaintiffs-Appellants,v.Bayer Corporation, Defendant-Appellee.Melody McDaniel, Plaintiff-Appellant,v.Wal-Mart Stores, Inc., et al., Defendants-Appellees.Samantha Samuels, et al., Plaintiffs-Appellants,v.Bayer Corporation, Defendant-Appellee.
No. 04-35370.
No. 04-35562.
No. 04-35588.
No. 04-35611.
No. 04-35614.
No. 04-35621.
No. 04-35884.
No. 04-36137.
No. 05-35105.
No. 05-35121.
No. 05-35129.
No. 05-35147.
No. 05-35184.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted February 7 and 8, 2006.**
Filed August 29, 2006.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Damon A. Kirin, Murray Law Firm, New Orleans, LA, for plaintiffs-appellants Allen, Anderson, Clinton, Riley, Holmes and Samuels; Michael J. Miller, Miller & Associates, Alexandria, VA, for plaintiff-appellant Hill.
Stephen B. Murray, Sr., Murray Law Firm, New Orleans, LA, for plaintiffs-appellants Ackel, Arrington, and McGriggs.
David B. Vermont, Herman, Mathis, Casey, Kitchens & Gerel, LLP, Alexandria, VA, for plaintiff-appellant Page.
W. Thomas McCraney, III, McCraney & Montagnet, PLLC, Jackson, MS, for plaintiffs-appellants McDaniel and Alford.
Leila H. Watson, Cory Watson Crowder & DeGaris, P.C., Birmingham, AL, for plaintiff-appellant Sasseen.
Randolph S. Sherman (argued), Kaye Scholer, LLP, New York, NY, and D. Joseph Hurson (signed the briefs), Lane Powell Spears Lubersky LLP, Seattle, WA, for the defendants-appellees.
Terry O. Tottenham, Fulbright & Jaworski LLP, Austin, TX, and Douglas A. Hofmann, Williams, Kastner & Gibbs, PLLC, Seattle, WA, for the defendants-appellees.
D. Joseph Hurson, Lane Powell Spears Lubersky LLP, Seattle, WA, for the defendants-appellees.
Frank A. Wood, Jr., Watkins & Eager PLLC, Jackson, MS, for defendant-appellee Bayer Corporation.
Alan J. Lazarus, Drinker Biddle & Reath LLP, San Francisco, CA, for all defendants-appellees SmithKline Beecham Corporation (dba Glaxosmithkline) and GlaxoSmithKline Consumer Healthcare, L.P.
Brandi J. McKay and Wendy A. Tucker, Sedgwick, Detert, Moran & Arnold LLP, Los Angeles, CA, for defendants-appellees Bristol-Myers Squibb Company.
Appeals from the United States District Court for the Western District of Washington; Barbara Jacobs Rothstein, District Judge, Presiding. D.C. No. MD-01-01407-BJR*, D.C. No. MD-01-01407-BJR*, D.C. No. MD-01-01407-BJR*, D.C. No. MD-01-01407-BJR*, D.C. No. CV-03-03428-BJR*, D.C. No. MD-01-01407-BJR*, D.C. No. CV-03-03428-BJR*, D.C. No. MD-01-01407-BJR*, D.C. No. CV-03-03279-BJR, D.C. No. CV-03-01343-BJR, D.C. No. CV-03-02073-BJR, D.C. No. CV-04-00399-BJR*, D.C. No. CV-01-02061-BJR, D.C. No. CV-03-03226-BJR, D.C. No. CV-01-02059-BJR.
Before DOROTHY W. NELSON, PAMELA ANN RYMER and RAYMOND C. FISHER, Circuit Judges; and EDWARD LEAVY, PAMELA ANN RYMER and RAYMOND C. FISHER, Circuit Judges.1
RYMER, Circuit Judge.
1
These appeals are from judgments of dismissal entered in a multidistrict litigation (MDL) proceeding for failure to comply with case management orders. The orders were entered with the agreement of all sides that they were necessary to move hundreds of cases and thousands of plaintiffs toward resolution on the merits. The district court found that many plaintiffs inexcusably failed to do what was required, and dismissed their actions. Some appeal. We must decide whether these dismissals were a clear error of judgment.
2
The principles that guide a court's discretion to dismiss are well settled, but we have never addressed how they play out in the context of multidistrict litigation. We conclude that while the rules are the same as for ordinary litigation on an ordinary docket — that is, a court determining whether to dismiss an action on account of a plaintiff's noncompliance with a court order must weigh the public's interest in expeditious resolution of litigation; the court's need to manage its docket; the risk of prejudice to the defendants; the public policy favoring the disposition of cases on their merits; and the availability of less drastic sanctions — multidistrict litigation is different because of the large number of cases that must be coordinated, its greater complexity, and the court's statutory charge to promote the just and efficient conduct of the actions. 28 U.S.C. § 1407. As a result, the considerations that inform the exercise of discretion in multidistrict litigation may be somewhat different, and may tip the balance somewhat differently, from ordinary litigation on an ordinary docket.
3
Recognizing this, we cannot say that the district court abused its discretion in dismissing the cases before us, except for McGriggs and Sasseen, as to which we reverse.2
4
* Phenylopropanolamine (PPA) was used in many decongestants and weight-control products until the Food and Drug Administration (FDA) issued a public health advisory on November 6, 2000 warning that this ingredient potentially increased the risk of hemorrhagic stroke. See U.S. Food & Drug Admin., Ctr. for Drug Evaluation & Research, Pub. Health Advisory Subject: Safety of Phenylpropanolamine, Nov. 6, 2000, http://www.fda.gov/cder/drug/infopage/ppa/advisory.htm (last visited Feb. 26, 2006). The advisory stated that the FDA was taking steps to remove PPA from drug products and to request drug companies to discontinue marketing products containing PPA. Id.; see also U.S. Food & Drug Admin., Ctr. for Drug Evaluation & Research, Phenylpropanolamine (PPA) Information Page, http://www.fda.gov/cder/drug/infopage/ppa/default.htm (last visited Feb. 26, 2006).
5
As a result, lawsuits were filed in state and federal courts throughout the country against pharmaceutical companies by persons claiming injury for ingestion of a product containing PPA. On motion of plaintiffs in one such action in the Eastern District of Louisiana, the Judicial Panel on Multidistrict Litigation found that fourteen actions then pending in several district courts were rooted in complex core questions concerning the safety of PPA and that centralization was necessary to eliminate duplicative discovery, prevent inconsistent pretrial rulings, and conserve the resources of the parties, their counsel, and the judiciary. See In re Phenylpropanolamine (PPA) Prods. Liab. Litig. No. 1407, 173 F.Supp.2d 1377, 1379 (J.P.M.L.2001). Accordingly, on August 28, 2001, the Panel designated the Western District of Washington as the appropriate forum for MDL 1407, and ordered the PPA actions to be transferred and assigned to Hon. Barbara Jacobs Rothstein for pretrial consolidation and coordination.3 Id. at 1380.
6
MDL 1407 got under way with an initial status conference on November 16, 2001. It addressed the leadership structure for counsel, and issues relating to discovery, experts, use of technology, class actions, and federal-state coordination. The court appointed Lead and Liaison Counsel for plaintiffs and defendants on November 21 and a Plaintiffs' Steering Committee on January 17, 2002. As part of its duties, the Plaintiffs' Steering Committee was to assist all plaintiffs in MDL 1407 by overseeing discovery, communicating with plaintiffs' lawyers, making court appearances, attending status conferences, and preparing motions and responses regarding casewide discovery matters.
7
At the court's direction, the parties submitted an agreed-upon Case Management Order (CMO) 1, which set out basic procedures and a master framework for discovery. Among other things, this order, filed January 29, 2002, states that "[a] party's failure to either produce a relevant document or identify same as withheld pursuant to a privilege may be viewed by the Court as an infraction of its orders, justifying appropriate sanctions." CMO 1 at ¶ VIII. It also provides that notice by the court to Plaintiffs' Liaison Counsel and Defendants' Liaison Counsel of any matter or ruling relating to all actions would be considered as notice to all MDL 1407 parties, and that service on Liaison Counsel would constitute service on all plaintiffs' and all defendants' counsel, respectively. Id. at ¶ III C, D.
8
A series of eighteen case management orders followed. They were applicable MDL-wide to all PPA actions transferred to MDL 1407, and governed both MDL-wide and case-specific issues. Case Management Orders were posted on the court's public website for the PPA litigation (http:// www.wawd.uscourts.gov/mdl). The primary orders at issue in these appeals are CMOs 6, 10, and 19, which control pretrial management of discovery, and CMOs 13 and 15, which concern product identification.
9
Case Management Order 6, filed March 18, 2002, set forth the basic principles for taking fact discovery of plaintiffs. No objections were lodged to the order in its final form. It requires all case-specific discovery to occur during the time periods permitted in the order, and adopts a "Plaintiff's Fact Sheet" (PFS) protocol in lieu of interrogatories to streamline the process. The PFS is a questionnaire to be signed under oath seeking information about the plaintiffs' injuries, medical history, current medical condition, identification of the product claimed to have caused injury, specifics of the injury suffered, and the identity of the plaintiffs' healthcare providers. It also includes blank authorizations to be signed by plaintiffs to allow defendants to collect medical and other records. (CMO 6A replaced several authorizations in CMO 6 that did not comply with federal statutory provisions, but made no other changes.) CMO 6 set a case-specific cut-off date of February 28, 2003 for all cases docketed in the MDL by February 12, 2002, and for cases docketed after February 28, 2003, case-specific discovery was to be completed within 12 months of the docket date. Plaintiffs in every case currently docketed were ordered to complete a Plaintiff's Fact Sheet no later than 45 days after a blank PFS was transmitted by defendants, and plaintiffs in all cases transferred to MDL 1407 thereafter were to complete a PFS within 45 days after service. The PFS was the starting point for defendants' assessment of plaintiffs' claims and the precondition for proceeding with further discovery, including depositions; defendants could not take case-specific fact depositions sooner than 120 days after the plaintiff served a completed Fact Sheet. CMO 6 provided that Defendants' Liaison Counsel was to send a warning letter to any plaintiff who failed to serve a Fact Sheet within the time allowed; if the plaintiff still failed to furnish complete responses within 30 days of the warning letter, defendants could seek appropriate relief if a meet and confer did not resolve the issues.
10
There were approximately 439 cases in the MDL when CMO 6 was entered; eight months later, there were more than 1,500 plaintiffs in 736 cases either in, or pending transfer to, MDL 1407. The court found that despite the efforts of the Defendants' and the Plaintiffs' Steering Committees, many plaintiffs had failed to comply with CMO 6's requirement to complete a Plaintiff's Fact Sheet. Therefore, the court entered CMO 10 on November 22, 2002 "to provide for the timely completion of discovery." CMO 10 provides that the one-year period for completion of discovery would not begin to run until a substantially complete PFS and accompanying authorizations were provided to defendants, and that no case would be considered for remand until the plaintiff had complied with the discovery requirements set forth in the court's prior orders, the court had determined that the discovery obligations of the plaintiff had been completed, and defendants had sufficient time to complete case-specific discovery. It also states that "[n]othing in this Order shall prevent defendants from seeking additional remedies or sanctions against any plaintiff for failure to comply with the discovery obligations set out in prior CMOs, on a case-by-case basis."
11
CMO 19 was entered on June 23, 2004. The court noted that it had issued CMO 10 after learning that plaintiffs had not complied with the requirements of CMO 6, and found that despite the requirements of CMOs 6 and 10, changes were necessary to provide for the timely completion of case-specific discovery in the MDL cases. CMO 19 ordered plaintiffs to complete a Plaintiff's Fact Sheet in all respects and serve it within 45 days after transmission of the blank PFS. For cases where no PFS was returned, Defendants' Liaison Counsel were to send a letter warning that the case was subject to dismissal, after which the plaintiff would have an additional 15 days to comply. If a PFS were received on time but was not completed in all respects, a deficiency letter was to be sent allowing an additional 15 days to serve a completed PFS and warning that the case was subject to dismissal if one were not received.
12
Meanwhile, the court addressed two different product identification problems in CMOs 13 and 15. The first set of cases involved individuals who claimed to have ingested one or more PPA-containing products. CMO 13, entered on May 2, 2003, requires each plaintiff in a multi-defendant case to file and serve within 30 days an Affirmation setting forth the PPA product he or she allegedly ingested and the manufacturer of that product. It authorizes defendants to submit a proposed order of dismissal with prejudice of the claims of any plaintiffs who failed to identify them in the PFS or in their Affirmation, and to seek additional sanctions with regard to discovery and PFS obligations.
13
The other set of cases involved unrelated claims of numerous plaintiffs who were joined without specifying which products they allegedly ingested or the manufacturers of the products that allegedly caused their injuries. By way of example, the court noted that there were 29 pending cases out of Louisiana that attempted to join over 1000 plaintiffs, with one case alone (not on appeal) accounting for over 500 PPA plaintiffs. Therefore, it entered CMO 15 on May 29, 2003, directing each plaintiff in a multi-plaintiff case to file and serve an individual, new complaint within 30 days to provide specific allegations regarding the products allegedly ingested, the dates on which the products were ingested, the injury alleged, and the dates of injury. CMO 15A, issued August 26, 2003, supplemented CMO 15 by providing for dismissal with prejudice of all jointly-filed complaints, including those plaintiffs for whom a timely filed individual severed complaint was not filed, as of the effective date of the order (October 26, 2003).
14
The court held a status conference on July 31, 2003 to address the problem of noncompliance with both the discovery and the product-identification CMOs. Liaison Counsel, members of the Plaintiffs' Steering Committee and Discovery Steering Committee, and Lead Counsel appeared. During this session, Judge Rothstein stated from the bench:
15
I right now will tell you that any case that has not complied with my discovery order will be dismissed. Now, that sounds simple, because there are some cases you can tell right off the bat there are no fact sheets, no medical records; they will be dismissed.
16
But then you get into the more complicated cases that I think [counsel] was about to address, but I'm going to go into it myself. And that is cases that have not complied with my order to break down multi-plaintiff cases into single plaintiff cases with a specific complaint that sets out the facts for the case.
17
Now, when hundreds of cases are filed with exactly the same complaint, I would say, by definition, you're in violation of the order. And if a motion is brought, I will dismiss those cases.
18
Now, if there's an answer that for some reason, justifiable reason really and truly all of those plaintiffs were exactly the same and had the same injury from the same product against the same defendant on the same day, if you can convince me that that's the case, I will certainly not dismiss the case.
19
But the time has come to figure out which of these cases are real and which of them aren't. And if discovery hasn't been complied with, there's a strong presumption on my part that the case should be dismissed . . . .
20
A minute entry documenting the July 31, 2003 status conference and indicating that "[t]he court instructed the Defendants to diligently pursue filing motions to dismiss for failure to comply with CMO 6, 13, and 15" was posted on the district court's electronic docketing system, PACER/CMECF, on August 7, 2003 as "Document 1922," and a few months later on the court's public MDL website. See W.D. Wa. PPA Litig. Website, http://www.wawd.uscourts.gov/mdl.
21
Defendants moved to dismiss the claims of plaintiffs who did not comply with these orders. The district court denied some requests, and granted others. Appeals were not taken from a great number of dismissal orders,4 but timely appeals were filed in the matters now before us. We shall consider the factual background, and procedural posture, of these cases individually once we have discussed the general standards by which we review dismissals for failure to comply with court orders, and the MDL context in which these dismissals were ordered.
II
22
The principles that apply to dismissals for violation of pretrial orders are well established, as are the standards that govern appellate review. Courts are to weigh five factors in deciding whether to dismiss a case for failure to comply with a court order: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (quoting Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829 (1986) (per curiam)). These factors are "not a series of conditions precedent before the judge can do anything," but a "way for a district judge to think about what to do." Valley Eng'rs Inc. v. Elec. Eng'g Co., 158 F.3d 1051, 1057 (9th Cir.1998).
23
We review for abuse of discretion. "Although it is preferred, it is not required that the district court make explicit findings in order to show that it has considered these factors and we may review the record independently to determine if the district court has abused its discretion." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.1992) (as amended); Malone, 833 F.2d at 130; Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.1986). "`Dismissal is a harsh penalty and is to be imposed only in extreme circumstances.' Nevertheless, we will overturn a dismissal sanction only if we have a definite and firm conviction that it was clearly outside the acceptable range of sanctions." Malone, 833 F.2d at 130 (quoting Henderson, 779 F.2d at 1423) (internal citation omitted).
24
Expeditious resolution of litigation. As the first of the Federal Rules of Civil Procedure reflects, the public has an overriding interest in securing "the just, speedy, and inexpensive determination of every action." Fed.R.Civ.P. 1. Orderly and expeditious resolution of disputes is of great importance to the rule of law. By the same token, delay in reaching the merits, whether by way of settlement or adjudication, is costly in money, memory, manageability, and confidence in the process. We defer to the district court's judgment about when delay becomes unreasonable "because it is in the best position to determine what period of delay can be endured before its docket becomes unmanageable." Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1451 (9th Cir.1994).
25
Court's need to manage its docket. "District courts have an inherent power to control their dockets. In the exercise of that power they may impose sanctions including, where appropriate, default or dismissal." Thompson, 782 F.2d at 831. "It is incumbent upon us to preserve the district courts' power to manage their dockets" without being subject to endless non-compliance with case management orders. Ferdik, 963 F.2d at 1261. Rule 16, the central pretrial rule, authorizes a court to manage cases so that disposition is expedited, wasteful pretrial activities are discouraged, the quality of the trial is improved, and settlement is facilitated. It recognizes "the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems." Fed.R.Civ.P. 16(c)(12). The goal is to get cases decided on the merits of issues that are truly meritorious and in dispute. Subsection (f) puts teeth into these objectives by permitting the judge to make such orders as are just for a party's failure to obey a scheduling or pretrial order, including dismissal. Rule 37(b)(2)(C) allows dismissal for failure to comply with discovery plans and orders, and Rule 41(b) permits dismissal for failure of the plaintiff to prosecute or to comply with any order of court. In addition, the Supreme Court has recognized that dismissal "must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent." Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976) (per curiam). So have we. See Allen v. Exxon Corp. (In re the EXXON VALDEZ), 102 F.3d 429, 433 (9th Cir.1996). This factor is usually reviewed in conjunction with the public's interest in expeditious resolution and, as with the first factor, we give deference to the district court "since it knows when its docket may become unmanageable." In re Eisen, 31 F.3d at 1452.
26
Risk of prejudice to the defendant. "A defendant suffers prejudice if the plaintiff's actions impair the defendant's ability to go to trial or threaten to interfere with the rightful decision of the case." Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir.1990); Malone, 833 F.2d at 131; In re Eisen, 31 F.3d at 1453. Failing to produce documents as ordered is considered sufficient prejudice. Adriana, 913 F.2d at 1412. Late tender is no excuse. See, e.g., In re Eisen, 31 F.3d at 1453; Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir.2002); Henry v. Gill Indus., Inc., 983 F.2d 943, 947, 948 (9th Cir.1993). The law also presumes prejudice from unreasonable delay. In re Eisen, 31 F.3d at 1453 (quoting Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir.1976)); Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir.1991) (as amended) (presuming from elapsed time that defendants' ability to defend a case has been prejudiced). The presumption may be rebutted and if there is a showing that no actual prejudice occurred, that fact should be considered when determining whether the district court exercised sound discretion. In re Eisen, 31 F.3d at 1452-53 (quoting Anderson, 542 F.2d at 524). A plaintiff may proffer an excuse for delay that, if "anything but frivolous," shifts the burden of production to the defendant to show at least some actual prejudice; if it does, the plaintiff must persuade the court that the claims of prejudice are illusory or relatively insignificant in light of his excuse. Id. at 1453 (quoting Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1281 (9th Cir.1980)); Hernandez v. City of El Monte, 138 F.3d 393, 401 (9th Cir.1998) (reiterating that the burden of production shifts to the defendant to show at least some actual prejudice only after the plaintiff has given a non-frivolous excuse for delay). In this circumstance prejudice, delay, and excuse all inform the district court's discretion. Prejudice normally consists of loss of evidence and memory, In re Eisen, 31 F.3d at 1453; it may also consist of costs or burdens of litigation, although it may not consist of the mere pendency of the lawsuit itself, Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.2002). That the case is "an involved, complex case increases the prejudice from the delay. Early preparation and participation are essential in such circumstances." Anderson, 542 F.2d at 525 (citation omitted). The district court's finding of prejudice "deserves `substantial deference' because' the district court is in the best position to assess prejudice.'" Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1116 (9th Cir.2004) (quoting Anheuser-Busch v. Natural Bev. Distribs., 69 F.3d 337, 354) (9th Cir.1995)).
27
Disposition on the merits. We have often said that the public policy favoring disposition of cases on their merits strongly counsels against dismissal. See, e.g., Hernandez, 138 F.3d at 399. At the same time, a case that is stalled or unreasonably delayed by a party's failure to comply with deadlines and discovery obligations cannot move forward toward resolution on the merits. Thus, we have also recognized that this factor "lends little support" to a party whose responsibility it is to move a case toward disposition on the merits but whose conduct impedes progress in that direction. See, e.g., In re the EXXON VALDEZ, 102 F.3d at 433 (noting that plaintiffs' total refusal to provide discovery obstructed resolution of their claims on the merits); In re Eisen, 31 F.3d at 1454 (giving weight to the plaintiff's failure to specify why it is important that his actions be resolved on their merits); Morris, 942 F.2d at 652 (observing that it is the responsibility of the moving party to move toward disposition on the merits).
28
Availability of less drastic sanctions. "`The district court abuses its discretion if it imposes a sanction of dismissal without first considering the impact of the sanction and the adequacy of less drastic sanctions.'" Malone, 833 F.2d at 131-32 (quoting United States v. Nat'l Med. Enters., Inc., 792 F.2d 906, 912 (9th Cir. 1986)).5 Factors that indicate whether a district court has considered alternatives include: "(1) Did the court explicitly discuss the feasibility of less drastic sanctions and explain why alternative sanctions would be inadequate? (2) Did the court implement alternative methods of sanctioning or curing the malfeasance before ordering dismissal? (3) Did the court warn the plaintiff of the possibility of dismissal before actually ordering dismissal?" Id. at 132. While helpful and encouraged, explicit discussion of alternatives is not necessary for a dismissal order to be upheld. Id. Warning that failure to obey a court order will result in dismissal can itself meet the "consideration of alternatives" requirement. Estrada v. Speno & Cohen, 244 F.3d 1050, 1057 (9th Cir.2001); Malone, 833 F.2d at 132-33; Adriana, 913 F.2d at 1413; Ferdik, 963 F.2d at 1262. Although a warning is not always required, Adriana, 913 F.2d at 1413; Malone, 833 F.2d at 132; Anheuser-Busch, 69 F.3d at 353, we focus more closely on the lack of warning and absence of consideration of less drastic alternatives when the dismissal is sua sponte rather than in response to a noticed motion. See Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir.1992). Compare In re Eisen, 31 F.3d at 1455, and Morris, 942 F.2d at 652 (rejecting a warning requirement in a case involving a noticed motion to dismiss), with Oliva, 958 F.2d at 274 (reversing a dismissal because the court sua sponte dismissed a case without considering alternative sanctions or giving a warning), and Hamilton v. Neptune Orient Lines, Ltd., 811 F.2d 498, 500 (9th Cir.1987) (reversing a district court's sua sponte dismissal of a case because it failed to warn prior to dismissal). However, for the prior implementation of a lesser sanction to be a persuasive factor, it must have occurred after the plaintiff's violation of a court order. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir.1999); Pagtalunan, 291 F.3d at 643.
29
We have been guided by the same dismissal factors in complex as well as ordinary cases. For example, we applied these factors in determining whether dismissal for failure to comply with discovery obligations was warranted in the litigation arising out of the EXXON VALDEZ oil spill, which involved "scores of lawsuits and thousands of litigants." 102 F.3d at 433. There, we also took note of the fact that, even though the appeal concerned only a fraction of the parties in the overall litigation, the district court appropriately considered the importance of sanctions as a deterrent to noncompliance by the thousands of other plaintiffs in the litigation. Id. However, we have never before addressed the issue of dismissals for failure to comply with case management orders in the context of multidistrict litigation. As we recognized in Toussaint v. McCarthy, "the scope of review will be directly related to the reason why that category or type of decision is committed to the trial court's discretion in the first instance." 801 F.2d 1080, 1088 (9th Cir.1986). As we shall explain, administering cases in multidistrict litigation is different from administering cases on a routine docket, so the lens through which the district court — and we, in turn — view transgressions, and sanctions, is different as well.
III
30
The goal of the multidistrict litigation process is to "promote the just and efficient conduct" of "civil actions involving one or more common questions of fact" that are pending in different districts. 28 U.S.C. § 1407(a). If realized, hundreds or — as here, thousands — of cases, coordinated, will proceed toward resolution on the merits with less burden and expense overall than were each litigated through pretrial individually.
31
Section 1407 arose out of the federal courts' experience with a massive prosecution of electrical equipment manufacturers for antitrust violations, which had been rendered manageable only by conducting joint pretrial proceedings. See H.R.Rep. No. 1130, 90th Cong., 2d Sess. 1 (1968), reprinted in 1968 U.S.C.C.A.N. 1898, 1899.6 Although the parties had voluntarily agreed to consolidate their cases in that instance, Congress saw a need to create a mandatory version of that procedure to govern cases such as "civil antitrust actions . . ., common disaster (air crash) actions, patent and trademark suits, products liability actions and securities law violation actions, among others." Id. at 1900. It therefore created the Judicial Panel on Multidistrict Litigation and conferred on the Panel the power to consolidate pretrial proceedings for such cases and to assign them to a single judge who would coordinate them.
32
This procedure was meant to "assure uniform and expeditious treatment in the pretrial procedures in multidistrict litigation." Id. at 1901. Without it, "conflicting pretrial discovery demands for documents and witnesses" might "disrupt the functions of the Federal courts" as they nearly had in the electrical equipment company cases. Id. at 1899. One of the Panel's first rulings described the alternative as "multiplied delay, confusion, conflict, inordinate expense and inefficiency." In re Plumbing Fixture Cases, 298 F.Supp. 484, 495 (J.P.M.L.1968). It was thought that consolidation and central coordination would avoid these dangers and would yield significant benefits of economy and speed. As a former Executive Attorney to the Panel and the Executive Editor of the Manual for Complex and Multidistrict Litigation wrote: "Implicit in Section 1407 is the assumption that the transferee judge will, as did the judges in the electrical equipment company cases, establish a national unified discovery program to avoid delay, repetition and duplication and to insure that the litigation is processed as efficiently and economically as possible." John T. McDermott, "The Judicial Panel on Multidistrict Litigation," 57 F.R.D. 215, 217 (1973).
33
Transfer proceedings may be commenced either on the Panel's own initiative or — as in MDL 1407 — by motion of any party. 28 U.S.C. § 1407(c). The Panel analyzes each group of cases in light of the statutory criteria and the primary purposes of the MDL process to determine whether transfer is appropriate. See In re Food Lion, Inc., F.L.S.A. Effective Scheduling Litig., 73 F.3d 528, 532 (4th Cir. 1996); see also Federal Judicial Center, MANUAL FOR COMPLEX LITIGATION § 20.131 at 220 (4th Ed.2004) (citing In re Plumbing Fixture Cases, 298 F.Supp. 484 (J.P.M.L.1968)); MULTIDISTRICT LITIGATION MANUAL § 5.16 (noting that factors considered by the Panel also include the progress of discovery, docket conditions, familiarity of the transferee judge with the relevant issues, and the size of the litigation). A transfer is effective when the order of transfer is "filed in the office of the clerk of the district court of the transferee district." 28 U.S.C. § 1407(c). When the transfer becomes effective, "the jurisdiction of the transferor court ceases and the transferee court has exclusive jurisdiction." MANUAL FOR COMPLEX LITIGATION § 20.131 at 220; see also MULTIDISTRICT LITIGATION MANUAL, § 9.1 (explaining that upon transfer of the litigation "the divestment of [the transferor court's] jurisdiction is complete"). A transferee judge exercises all the powers of a district judge in the transferee district under the Federal Rules of Civil Procedure and "may make any pretrial order that the transferor court might have made in the absence of a transfer." Stanley A. Weigel, The Judicial Panel on Multidistrict Litigation, Transferor Courts and Transferee Courts, 78 F.R.D. 575, 578-79 (1978); see also 28 U.S.C. § 1407(b) (authorizing the transferee judge to "exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions"). This includes authority to decide all pretrial motions, including dispositive motions such as motions to dismiss, motions for summary judgment, motions for involuntary dismissal under Rule 41(b), motions to strike an affirmative defense, and motions for judgment pursuant to a settlement. See Weigel, 78 F.R.D. at 582-83; MANUAL FOR COMPLEX LITIGATION § 20.131 at 222; 15 Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, FEDERAL PRACTICE AND PROCEDURE § 3866, 618 (2d ed.1986); In re Am. Cont'l Corp./Lincoln Sav. & Loan Sec. Litig., 102 F.3d 1524, 1532-33 (9th Cir.1996), rev'd on other grounds sub nom. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998) (noting that "the transferee court is empowered to dispose of the cases transferred to it by means of summary judgment or dismissal"); In re Donald J. Trump Casino Sec. Litig.—Taj Mahal Litig., 7 F.3d 357, 367-68 (3rd Cir.1993) (holding that " § 1407 empowers transferee courts to enter a dispositive pretrial order terminating a case").
34
Once pretrial proceedings are completed in the MDL, the Panel remands individual cases to the district court in which the action was originally filed for trial. 28 U.S.C. § 1407(a) ("Each action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district court from which it was transferred unless it shall have been previously terminated...."). When remand occurs depends upon the circumstances of the litigation and the recommendation of the transferee court. MANUAL FOR COMPLEX LITIGATION § 20.133 at 225 (noting that "[t]he Panel looks to the transferee court to suggest when it should order remand, but that court has no independent authority to ... remand"). In MDL 1407, for instance, Judge Rothstein entered CMO 17 on November 18, 2003, superseded by CMOs 17A, B, and C, that detailed the procedures and conditions she would consider before determining that a case was "ripe for remand." These conditions included completion of discovery permitted by CMOs 1, 6, 6A, 10, 13, 13A, and 15. After an MDL action is remanded, the transferor court resumes exclusive jurisdiction over further proceedings. Id. at 226.
35
A district judge charged with the responsibility of "just and efficient conduct" of the multiplicity of actions in an MDL proceeding must have discretion to manage them that is commensurate with the task. The task is enormous, for the court must figure out a way to move thousands of cases toward resolution on the merits while at the same time respecting their individuality. The court is also confronted with substantial legal questions, such as, in MDL 1407, FDA issues, Daubert7 motions, questions of joinder and federal jurisdiction, class certification, timeliness of claims, and causation. For it all to work, multidistrict litigation assumes cooperation by counsel and macro-, rather than micro-, judicial management because otherwise, it would be an impossible task for a single district judge to accomplish. Coordination of so many parties and claims requires that a district court be given broad discretion to structure a procedural framework for moving the cases as a whole as well as individually, more so than in an action involving only a few parties and a handful of claims. As the Court of Appeals for the First Circuit put it, a district court must be able to "uncomplicate matters" and counsel must, for their part, "collaborate with the trial judge from the outset in fashioning workable programmatic procedures, and thereafter alert the court in a timely manner as operating experience points up infirmities warranting further judicial attention." Massaro v. Chesley (In re San Juan Dupont Plaza Hotel Fire Litig.), 111 F.3d 220, 229 (1st Cir.1997) (internal quotation marks and citations omitted); see also MANUAL FOR COMPLEX LITIGATION, § 10 at 7 ("Fair and efficient resolution of complex litigation requires at least that (1) the court exercise early and effective supervision (and, where necessary, control); (2) counsel act cooperatively and professionally; and (3) the judge and counsel collaborate to develop and carry out a comprehensive plan for conduct of pretrial . . . proceedings.").
36
Pretrial plans will necessarily vary with the circumstances of the particular MDL. However, the district judge must establish schedules with firm cutoff dates if the coordinated cases are to move in a diligent fashion toward resolution by motion, settlement, or trial. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 172, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). As happened in MDL 1407, the multidistrict process contemplates involvement of representative counsel in formulating workable plans. Once established in consultation with counsel, time limits and other requirements must be met and, "when necessary, appropriate sanctions are imposed ... for derelictions and dilatory tactics." MANUAL FOR COMPLEX LITIGATION § 10.13 at 13." Close judicial oversight and a clear, specific, and reasonable management program, developed with the participation of counsel, will reduce the potential for sanctionable conduct because the parties will know what the judge expects of them.... Although sanctions should not generally be a management tool, a willingness to resort to sanctions, sua sponte if necessary, may ensure compliance with the management program." Id. at § 10.151 at 15.
37
In sum, multidistrict litigation is a special breed of complex litigation where the whole is bigger than the sum of its parts. The district court needs to have broad discretion to administer the proceeding as a whole, which necessarily includes keeping the parts in line. Case management orders are the engine that drives disposition on the merits.8 With this in mind, we turn to the discrete appeals that arise from dismissals for failure to comply with CMOs 6, 10, 13, 15, and 19.
IV
Allen and Anderson9
38
In these consolidated appeals, Shantell Allen, et al., and Leon Anderson,10 et al., appeal dismissal of their actions with prejudice for failure to comply with CMOs 6 and 6A. CMO 6A simply changed the form of the authorizations required by CMO 6, so we treat the appeals as involving CMO 6.
39
Almost all cases included in the Allen and Anderson appeals were transferred to MDL 1407 in December 2002. Completed Fact Sheets were due for most members of the Allen group and all members of the Anderson group in March or April, 2003. Both groups were among the first to be subject to a motion to dismiss for noncompliance with CMO 6, and were dismissed in a pair of orders issued on October 22 and 24, 2003.
40
Allen and Anderson argue that dismissal was too severe a sanction and that noncompliance with the case-specific discovery requirements of CMO 6 was not the result of willfulness, fault, or bad faith. They proffered several excuses in the district court, including the difficulty in locating clients, the debilitating nature of the injuries at issue, and the burden of complying with other case management orders (CMOs 13 and 15). The district court was not persuaded, observing that no additional time had been requested, and that the CMO 13 and 15 obligations stemmed from the plaintiffs' own choice to file mass-joinder cases against numerous defendants. Allen and Anderson also contend that some of their plaintiffs tried to cure deficiencies before the defendants moved to dismiss or before the court's order was entered. Allen points out that her group served 114 Fact Sheets after the motion was filed, but the district court found that many of them were incomplete. This finding is not challenged on appeal. Anderson notes that his group submitted a spreadsheet and supporting correspondence establishing that three plaintiffs served some discovery on August 27 or 29, but this was well past the deadlines in CMO 6 and does not excuse failure to take timely action. See, e.g., In re Eisen, 31 F.3d at 1453; Fair Hous., 285 F.3d at 906.
41
Rule 37 sanctions, including dismissal, may be imposed where the violation is "`due to willfulness, bad faith, or fault of the party.'" Fair Hous., 285 F.3d at 905 (quoting the standard articulated in United States v. Kahaluu Constr. Co., Inc., 857 F.2d 600, 603 (9th Cir.1988)) (emphasis added). "Disobedient conduct not shown to be outside the litigant's control meets this standard." Fair Hous., 285 F.3d at 905; Virtual Vision, Inc. v. Praegitzer Indus., Inc. (In re Virtual Vision, Inc.), 124 F.3d 1140, 1143 (9th Cir.1997). Our review of the record indicates that failure to comply with CMO 6 was not outside Allen's or Anderson's control. See In re Virtual Vision, 124 F.3d at 1145 (holding that a litigant's failure to advise counsel of his whereabouts and failure to keep abreast of the status of his case indicates a lack of due diligence); W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1523 (9th Cir.1990) (holding that "the faults and defaults of the attorney may be imputed to, and their consequences visited upon, his or her client"); Malone, 833 F.2d at 134 (same); Anderson, 542 F.2d at 526 (same); see also Link v. Wabash R.R., 370 U.S. 626, 633, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Thus, dismissal was an available sanction.
42
The district court addressed the Malone, or dismissal, factors,11 and did not abuse its discretion in concluding that dismissal was appropriate. The court observed that many of the cases subject to its dismissal order had been pending for close to, or over, a year without forward movement, and that such lack of diligence does not serve the public interest in expeditious resolution of litigation. This is consistent with Yourish, where we explained that dismissal serves the public interest in expeditious resolution of litigation as well as the court's need to manage the docket when a plaintiff's noncompliance has caused the action to come to a halt, thereby allowing the plaintiff, rather than the court, to control the pace of the docket. 191 F.3d at 990. Sound management of the court's docket also counsels in favor of sanctions as a deterrent to others, particularly in the context of an MDL proceeding where there are thousands of plaintiffs and tag-along cases are continually being added. The first two factors therefore weigh heavily in favor of dismissal.
43
The district court found that the unreasonable delay in completing Fact Sheets prejudiced the defendants' ability to proceed with the cases effectively. It explained that the purpose of the Plaintiff's Fact Sheet was to give each defendant the specific information necessary to defend the case against it, and that without this device, a defendant was unable to mount its defense because it had no information about the plaintiff or the plaintiff's injuries outside the allegations of the complaint. We defer to this assessment. The court also found that Allen's and Anderson's inability or unwillingness to furnish the information requested in a timely fashion was not excusable. Deference is due to this finding as well. Failure to produce information without a good reason increases the risk of prejudice from unavailability of witnesses and loss of records. See Pagtalunan, 291 F.3d at 642-43 (recognizing that unnecessary delay inherently increases the risk that witnesses' memories will fade and evidence will become stale). This factor, too, supports the district court's determination.
44
The court found there were no less drastic sanctions remaining. It noted that the named plaintiffs received warning letters from defendants that prompted no response. It also noted that the sanction of preventing remand of the cases where discovery requirements were unmet had previously been imposed in CMO 10, and that it had ordered the time for completing case-specific discovery not to begin to run until a substantially complete PFS was furnished. Having provided second and third chances following procedural defaults, the district judge believed the ultimate sanction of dismissal was justified. As the recitation of events was correct, and the district judge was in the best position to evaluate their import, this factor weighs in favor of dismissal.
45
Finally, the district court acknowledged that disposition should be on the merits, but found that in light of the inability of many of the named plaintiffs to provide any information that only they possessed regarding the critical elements of their claims, it was impossible to dispose of the case on the merits. Allen and Anderson quarrel with the "impossibility" of it, but we agree with the district court's basic assessment because, in a proceeding such as this, where the plaintiffs themselves prevent their cases from moving forward, the public policy favoring resolution on the merits cannot weigh much, if at all, in their favor. See In re the EXXON VALDEZ, 102 F.3d at 433; Morris, 942 F.2d at 652 (placing responsibility on the plaintiff to move towards disposition on the merits). Accordingly, the district court did not abuse its discretion in dismissing these actions.
V
Alford
12
46
Keva Alford and Earlene Johnson were dismissed (along with other individuals originally named as part of the Alford action) with prejudice for failure to comply with CMO 6. Alford failed to file a timely PFS, and Johnson failed to file authorizations.
47
Johnson was served with a blank PFS on February 3, 2004, which meant that her completed Fact Sheet was due on March 19, 2004. On March 17, 2005, Johnson sought an extension until April 19, 2004, which the district court granted. Johnson timely submitted her PFS on April 19, 2004, but she did not submit the required authorization forms that were necessary to obtain her medical records and financial documents. On June 8, 2004, an omnibus motion was filed under Fed.R.Civ.P. 41(b) seeking the sanction of dismissal, pursuant to Fed.R.Civ.P. 37(b)(2)(C), for actions where the plaintiffs had failed to provide a timely, completed PFS. On June 14, 2004, six days after the motion was filed and nearly two months after the authorizations were due, Johnson supplemented her PFS with the required authorizations.
48
Alford was served with blank Fact Sheets on March 16, 2004, which she was required to complete by April 9, 2004. She filed nothing. Defendants' Liaison Counsel sent Alford a warning letter dated April 13, 2004, which stated:
49
You must serve a completed Plaintiff's Fact Sheet upon [defense counsel] ... within 30 days of the date of this warning letter . . . . Should you fail to provide complete responses within the allowed time-frame, defendants will be entitled to move the Court for appropriate relief. Please be advised that, should you fail to comply with this deadline, the period for fact witness discovery will not begin to run until you serve a substantially complete Plaintiff's Fact Sheet....
50
Alford did not serve completed Fact Sheets within thirty days of the warning or request an extension of time to complete them. As a result, she was also included in the June 8, 2004 motion to dismiss. By then, Fact Sheets had been submitted on behalf of only two of the thirty-two plaintiffs in the Alford action.
51
In response to the motion to dismiss, Alford's counsel, W. Thomas McCraney, III, argued that he had assumed that a copy of the warning letter had been sent to Herrington & White, PLLC, lead counsel in Alford's case, and thought Herrington & White would request more time. However, McCraney never tried to verify that Herrington & White had received the letter; he claimed that he was heavily involved in a two-week trial on an unrelated matter at the beginning of May, and was busy filing separate complaints as required by CMO 15.
52
The district court granted the motion to dismiss. It was not persuaded by McCraney's claim that the failure to file timely Fact Sheets was a result of an administrative mix-up, noting that he had demonstrated awareness of CMO 6 obligations by actually filing a timely PFS in at least two cases. The court also noted that service of a PFS on a lead attorney for a given plaintiff was deemed sufficient. Finally, the district court found that counsel's trial commitments and the deadlines for filing individual complaints are routine demands of legal practice which do not excuse failure to file timely Fact Sheets or, at the least, to request an extension of time.
53
Johnson and Alford argue that dismissal was too harsh a sanction, but our review of the record indicates that failure to comply with CMO 6 was not outside Johnson's and Alford's control. See W. Coast Theater, 897 F.2d at 1523 (holding that "the faults and defaults of the attorney may be imputed to, and their consequences visited upon, his or her client"); Malone, 833 F.2d at 134 (same); Anderson, 542 F.2d at 526 (same); see also Link, 370 U.S. at 633, 82 S.Ct. 1386.
54
Alford differs from Allen in that the district court did not explicitly discuss the Malone factors. However, the court had gone through the Malone factors in its foundational analysis of failure to comply with CMO 6 in early rulings such as Allen, and we assume that Judge Rothstein, one of the most experienced district judges in the country, understood the dismissal factors as they applied to MDL 1407. In any event, considering the record in light of those factors ourselves, we conclude that the district court had discretion to dismiss the Johnson and Alford actions. The first two factors strongly support the court's decision. As we have discussed, this was complex, multidistrict litigation involving thousands of plaintiffs who claimed to have suffered PPA-related injury. "[T]he weight of the docket-managing factor depends upon the size and load of the docket...." Pagtalunan, 291 F.3d at 644 (Trott, J., concurring). Here, given the size and complexity of MDL 1407, the docket-managing factor is weighted heavily in favor of dismissal.
55
CMO 6 set forth a framework for streamlined discovery. When "despite the efforts of the Defendants' and the Plaintiffs' Steering Committee," many plaintiffs were still delinquent eight months later, the court entered CMO 10 to increase the incentive for compliance by foreclosing remand until plaintiffs had completely complied with discovery orders. Neither individually nor collectively could the MDL cases move forward toward settlement or trial until compliance was achieved. Further, noncompliance with discovery orders diverted the court's attention from time it could have devoted to other matters. See Ferdik, 963 F.2d at 1261 ("It is incumbent upon us to preserve the district courts' power to manage their dockets without being subject to ... endless ... noncompliance ....").
56
Johnson and Alford contend that some delay in completing Fact Sheets was inevitable, but they took this decision away from the district court, where it belongs, by ignoring the order instead of asking for relief. See Pagtalunan, 291 F.3d at 642 ("The trial judge is in the best position to determine whether the delay in a particular case interferes with docket management and the public interest."). The information called for was solely within the plaintiffs' knowledge. It was basic information about ingestion and injury that was critical to plaintiffs' cases as well as to the defense, for without the information plaintiffs' claims would lack merit. CMO 6 arranged for it to be transmitted to defendants in a form that is far simpler and easier to deal with than interrogatories, the more customary form of first-stage discovery that can be both cumbersome and tedious.
57
Prejudice from unreasonable delay is presumed. In re Eisen, 31 F.3d at 1452-53. Failure to produce documents as ordered is sufficient prejudice, whether or not there is belated compliance. Id. at 1453 (taking action after the defendant's motion to dismiss was pending does not excuse taking no action before); Payne v. Exxon Corp., 121 F.3d 503, 508 (9th Cir. 1997) (noting that last-minute tender of documents does not cure prejudice or restore other litigants on a crowded docket to the opportunity to use the courts); see also Adriana, 913 F.2d at 1413 n. 6 (recognizing that refusal to produce evidence presumptively shows that an asserted claim or defense is meritless). The risk of prejudice is exacerbated where each delay potentially affects the discovery and remand schedule in hundreds of other cases. Although a plaintiff's excuse for default or delay is relevant, the district court found Alford and Johnson's explanation unavailing. We defer to this finding, which is not clearly erroneous. Computer Task Group, 364 F.3d at 1116 (holding that appellate court owes deference to the district court's finding that excuses are not credible). We also note that CMO 15, which counsel maintained was consuming his time, itself states that "[n]othing in this Case Management Order shall delay the production of Plaintiff Fact Sheets by plaintiffs named in multiple plaintiff cases." CMO 15, ¶ 3. Therefore, the prejudice factor weighs in favor of dismissal.
58
The availability of less drastic sanctions was not discussed by the district court, nor did Johnson or Alford propose any. They maintain that to the extent they were in violation of CMO 6, no lesser sanction was imposed before proceeding directly to dismissal. While true as to them individually, CMO 10 reflects the court's awareness of widespread non-compliance with CMO 6 and consideration of alternative measures to remedy it. Although the court did not individually warn Johnson and Alford of the possibility of dismissal for failure to comply, the text of CMO 1, and of Rules 37(b)(2) and 41(b), give notice that dismissal is a possible sanction for failure to obey pretrial discovery orders. Valley Eng'rs, 158 F.3d at 1056-57. Also, the district court warned all MDL 1407 plaintiffs that any case where plaintiffs failed to comply with discovery orders would be dismissed; other cases had been dismissed for failure to comply with CMO 6, see, e.g., Allen v. Bayer, No. 04-35370; Anderson v. Bayer, No. 04-35562, and this, too, amounted to a warning that similar conduct would result in a similar sanction. See Valley Eng'rs, 158 F.3d at 1057. In addition, the court had instructed defendants diligently to pursue filing motions to dismiss for failure to comply with CMO 6 before Alford and Johnson let the dead-line go by. Although composed of hundreds of actions, MDL 1407 was a unified proceeding for pretrial purposes so its MDL-wide rulings applied to all parties. Further, in accordance with CMO 6's compliance plan, Defense Liaison Counsel's April 13, 2004 letter advised Alford that she was in default of CMO 6 obligations and warned that appropriate relief would be requested unless complete responses were forthcoming within 30 days (the extra time frame allowed by CMO 6 for compliance after warning). These warnings satisfy this factor in this case. See, e.g., Ferdik, 963 F.2d at 1262 (recognizing that a warning can satisfy the "consideration of alternatives" requirement); Malone, 833 F.2d at 132 & n. 1 (noting that a warning is an alternative sanction, and that case law suggests that warning a plaintiff that failure to obey a court order will result in dismissal can suffice).
59
The fifth factor — public policy favoring disposition of cases on the merits — normally weighs against dismissal. However, failure to comply with CMO 6 obligations brought these MDL actions to a standstill. Noncompliant plaintiffs bear responsibility for halting movement toward a merits resolution. The consequences are compounded in multi-plaintiff actions in multidistrict litigation. This substantially neutralizes the negative effect of this factor in the context of this proceeding.
60
On balance, we conclude that dismissal was not an abuse of discretion.
VI
Clinton
13
61
Betty Clinton, Barbara Evans, Paulette Green, and Joe Johnson were served with a blank PFS on March 21, 2002 after their actions were transferred to MDL 1407 in late 2001 and early 2002. Completed Fact Sheets and authorization forms were due May 6, 2002. While Clinton and Green applied for extensions, and Green received one, all members of the Clinton group served a late, and incomplete, Fact Sheet (including Green, who didn't provide hers until after her extension expired). Numerous deficiency letters were sent to each up to the time motions to dismiss were filed March 5, 2004. The district court found that plaintiffs in the Clinton actions failed to comply with the discovery plan set forth in CMOs 6 and 10 despite ample opportunity to comply, as well as warnings that failure to comply would result in appropriate sanctions — including dismissal. It also found outstanding deficiencies as to all the Clinton discovery responses.
62
Clinton, Evans, Green, and Johnson argue that dismissal was too severe a sanction and that noncompliance was not the result of willfulness, bad faith, or fault. Additionally, they posit that the delay in their cases was only slight, and was due to counsel's difficulty obtaining the required information from clients who had been injured by ingestion of PPA-containing products. We disagree that the delay was "slight," as it continued for nearly two years. While the district court made no express finding of fault, we may review the record to determine whether it contains evidence of willfulness, bad faith, or fault. See In re Virtual Vision, 124 F.3d at 1143. Our review indicates that failure to comply with CMO 6 was not outside Clinton's control, thus satisfying the fault standard for imposing Rule 37 sanctions. Fair Hous., 285 F.3d at 905; In re Virtual Vision, 124 F.3d at 1143-44; W. Coast Theater, 897 F.2d at 1523. No member of the Clinton group substantiated counsel's claim of incapacitation or explained why alternative approaches, such as a protective order or further extensions of time, were not pursued. Dismissal was therefore an available sanction.
63
Considering the dismissal factors here leads us to conclude that dismissal was not an abuse of discretion. For reasons we have already explained, the first two tip in favor of dismissal. Prejudice is presumed from unreasonable delay, In re Eisen, 31 F.3d at 1452-53, and the Clinton group failed to file a PFS that was not deficient within the deadline set by the court, or for two years thereafter. See Pagtalunan, 291 F.3d at 643 (observing that unreasonable delay inherently increases the risk of prejudice from faded memories and stale evidence). Although two of these plaintiffs asked for extensions (and one received a year of additional time), substantially complete Fact Sheets were not submitted until after the motion to dismiss was filed two years after originally due. This neither excuses, nor cures, prejudice. Fair Hous., 285 F.3d at 906; Payne, 121 F.3d at 508.
64
While the district court did not explicitly discuss the availability of less drastic sanctions in its dismissal order, it found that the Clinton group had received warnings. See Ferdik, 963 F.2d at 1262. It is also apparent from the record that the court considered progressive sanctions, as we have already explained.
65
Finally, given plaintiffs' responsibility for moving their cases toward resolution, public policy favoring disposition of cases on the merits offers little support in their favor.
66
In these circumstances, dismissal was within the court's discretion.
VII
Page
14
67
Elizabeth Page appeals dismissal of her action with prejudice for failure to comply with CMO 19. Page's action was transferred to MDL 1407 on August 7, 2003. Bayer served a blank PFS on Page on August 19, 2003, so she was required by CMO 6 to furnish a complete Fact Sheet by October 3, 2003. On October 7, Bayer sent a warning letter to Page informing her that she was not complying with CMO 6. On November 17, 2003, Page returned the PFS, but Bayer noted a number of deficiencies, including a lack of release forms and incomplete answers to questions regarding health and employment issues, of which it informed Page by a warning letter on March 10, 2004. Page did not respond to the letter.
68
On March 16, 2004, Mohammad Syed, an associate at the law firm representing Page who was involved in her case, but was not counsel of record, departed for a vacation in the Middle East. Due to "administrative red tape," the trip was prolonged and the record does not reflect when, or if, he returned. On April 14, 2004, Bayer sent a third warning letter again notifying Page of deficiencies in the PFS; a fourth was sent on May 14, 2004. Finally, on May 17, 2004, Page responded by sending the requested forms. The next day, Page informed Bayer of Syed's absence, requested that Bayer resend the warning letters, and promised to correct the deficiencies "as soon as practical." Bayer resent the letters the next day via fax. On August 9, 2004, having still not received the supplemental PFS that Page had promised, Bayer sent a fifth warning letter, which informed Page that, pursuant to CMO 19, Bayer would seek dismissal if Page did not send a complete PFS. On August 23, 2004, the post-warning grace period allowed under CMO 19 expired. On September 2, 2004, Bayer sought dismissal of Page's case, and on September 7, 2004, the district court issued an Order to Show Cause (OSC) why Page's case should not be dismissed. On September 20, 2004, Page responded to the order and appended a supplemental PFS, which addressed many, but not all, of Bayer's asserted deficiencies.
69
Page admitted that there were "absences" and "failing[s] in Plaintiff's fact sheet" and that Bayer was "certainly entitled to complete answers to the questions on the fact sheet." She conceded that Bayer "certainly was within its rights" to seek dismissal under CMO 19 and that she had committed "error in failing to transmit" the supplemental Fact Sheet to Bayer. She accepted "responsibility for that delay." Nevertheless, Page tried to excuse the delay by arguing that the revised PFS had been completed some time prior to the motion to dismiss, but had simply not been given to Bayer because "counsel ... inadvertently forgot to send those responses." Page argued that the errors and omissions in the original PFS were merely technical. In light of that inadvertence, Syed's absence from the country, and the alleged mildness of the omissions, Page argued that dismissal was too harsh a sanction. The district court found that Page's excuses were not a reasonable justification for the delay and that Bayer had been prejudiced.
70
Page now argues that the district court erred as a matter of law because her original PFS was "complete in all respects" as defined by CMO 19. Even if Page had not waived this issue by failing to raise it in district court, Page conceded that Bayer was within its rights to seek dismissal for violation of CMO 19, that there were absences and failings in her PFS, and that she failed to transmit the supplemental Fact Sheet to Bayer. Page also maintains that Bayer had answers to the PFS's requests for technical information in other forms, but we rejected a similar argument in Computer Task Group. 364 F.3d at 1117. The reason is that "[a]n important purpose of discovery is to reveal what evidence the opposing party has, thereby helping determine which facts are undisputed — perhaps paving the way for a summary judgment motion — and which facts must be resolved at trial." Id. Finally, it is not without significance that Page never sought a protective order or other relief from her discovery obligations.
71
Although the district court's order does not explicitly reflect a Malone analysis, it was entered with reference to the parties' memoranda, which did. In any event, we can review the record independently and, having done so, conclude that the dismissal factors support the district court's determination. As we have discussed, the first two factors strongly support the court's dismissal. The district court found prejudice, which is presumed from unreasonable delay. In re Eisen, 31 F.3d at 1453. Page failed to submit a compliant PFS for over a year, and this suffices to show prejudice even if there is belated compliance. Payne, 121 F.3d at 508. Although a plaintiff's excuse for default or delay is relevant, the district court found that Page proffered no reasonable justification. The public policy favoring disposition on the merits is not compelling when it is thwarted by the plaintiffs' failure to move their cases along. While the availability of less drastic sanctions was not discussed in the order, the district court can sometimes meet the "consideration of alternatives" requirement by issuing a warning that a party's failure to obey a court order will result in dismissal. See Estrada, 244 F.3d at 1057; Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33. The logistical complexity involved in multi-district litigation makes it impossible to issue personalized warnings to each one of thousands of parties and give second (or, in some cases, third, fourth, or fifth) chances based on each party's unique circumstances. An MDL court facing widespread non-compliance with its orders may satisfy the need for consideration of lesser sanctions, as the district court did here, by implementing progressively more severe penalties and issuing warnings in MDL-wide case management and scheduling orders, served at the outset of a party's transfer to the MDL.15 The progression from CMO 6 to CMO 19 indicates that alternatives were considered; Bayer followed the compliance plan incorporated into these case management orders in this case; and, in the wake of widespread noncompliance with earlier discovery orders, the parties to MDL 1407 had been warned by the district judge that future noncompliance could lead to dismissal. Accordingly, we conclude the district court adequately considered its alternatives before dismissing Page's action. Thus, in light of the full Malone analysis, the district court did not abuse its discretion.
VIII
Riley, Holmes, Samuels, and McDaniel16
72
Marie Riley, Bobby Holmes and his family, Melody McDaniel, and Samantha Samuels, et al. appeal dismissal of their actions with prejudice for failure to comply with CMO 19.
73
Riley's case was transferred to MDL 1407 on April 29, 2003; a year later, Bayer sent a deficiency notice with respect to the incomplete PFS that Riley had submitted, signed by her daughter who was not a party. Although she then supplemented the PFS, it, too, was unsigned. Bayer sent another deficiency notice August 12, warning of its intent to seek dismissal if completed documents were not received within 15 days (the additional period allowed by CMO 19). An OSC was served under CMO 19; counsel responded that Riley was unable to complete the PFS due to her deteriorating health, but that her daughter had personal knowledge of Riley's stroke as well as ingestion of PPA-containing products and that a power of attorney was being sought for her. None was obtained by November 17, 2004, when the dismissal order was entered. The court noted that no justification was offered for the daughter's failure to obtain a power of attorney for nearly five months, and that defendants were prejudiced by this considerable delay.
74
Samuels's case was transferred January 11, 2002, before CMO 6 was entered. Five deficiency letters were sent between May 31, 2002 and July 14, 2004; the final letter had a CMO 19 warning. Samuels submitted an unsigned supplemental response, without authorizations, to Bayer on July 20, 2004; an OSC was issued September 9; and Samuels provided a signed PFS October 11, 2004 two weeks after the time to respond to the OSC expired. The district court found that Samuels had been given numerous warnings, which she had consistently ignored, and that her excuse — counsel had written to her on July 21, 2004 emphasizing the importance of signing the PFS and providing signed releases that would be turned over to defense counsel upon receipt — was unpersuasive. It found prejudice on account of Samuels's failure to comply with court-ordered discovery.
75
Holmes's case was transferred January 10, 2002. He died shortly before his PFS was due (May 7). Co-plaintiffs sent unsigned, unverified PFS responses. Three deficiency notices were sent between May 31, 2002 and January 2003; Holmes's daughter was deposed in April 2004, but lacked key information about her father's injury and ingestion of PPA; two more deficiency letters were sent on May 11 and August 13, 2004, the last one with a CMO 19 warning. An OSC was issued on September 7, to which counsel responded that he had located Holmes's former girlfriend who was percipient to the stroke, and that he was preparing another supplemental PFS. The court noted that counsel made no attempt to explain why two years had elapsed from the original PFS due date before trying to locate the girlfriend; that despite repeated requests, extensions, and warnings, counsel still had failed to file a PFS that was complete in all respects; and that no reasonable justification was offered for the failure. It also found prejudice to the defense by failure to comply with court-ordered discovery.
76
Finally, McDaniel's case was transferred to MDL 1407 on September 24, 2003. Bayer sent a deficiency notice with respect to her incomplete PFS on March 8, 2004; she responded with a supplement signed by counsel; another deficiency notice with a CMO 19 warning was sent August 11, 2004, and an OSC was issued September 7, 2004. McDaniel indicated that her counsel had difficulty locating her after she moved from Mississippi to Missouri and disconnected her phone. She also sent Bayer an unsigned supplemental response. On October 8, 2004 after the time for responding to the OSC had lapsed, McDaniel fowarded signed authorization forms to Bayer. The court observed that it was undisputed that McDaniel had failed to serve a timely PFS that was complete in all respects, and noted of the proffered excuse that counsel had not sought an extension of the deadline from the court on account of inability to reach McDaniel. It found that counsel's inability to communicate with his client was not sufficient justification for failure to comply with court-ordered discovery; that adequate warnings had been given of the consequences of failure to comply with CMO 19; and that the defendants were prejudiced by this failure.
77
* Bayer, the lead defendant in Holmes's case, contends that the Holmes appeal is untimely. We address this first, as our jurisdiction depends upon the filing of a timely notice. We believe that Holmes filed on time. Holmes brought a motion for reconsideration within 10 days of the district court's entry of judgment, thereby tolling his time to file a notice of appeal. He then filed his notice of appeal within 30 days of the district court's denial of his motion for reconsideration. This comports with the rules and gives us jurisdiction. See Fed. R.App. P. 4(a)(4)(A)(vi); Fed. R.App. P. 4(a)(7); Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1462 (9th Cir.1992).
B
78
Riley, Holmes, and Samuels argue that the district court abused its discretion by dismissing their claims without finding willfulness, fault, or bad faith as our precedent requires for Rule 37 sanctions. See, e.g., Fair Hous., 285 F.3d at 905. Beyond this, Riley and Holmes maintain that counsel had difficulty locating the information needed to cure deficiencies in the PFS due to Holmes's death and Riley's mental and physical condition; Samuels claims that she served an unsigned copy of a supplemental PFS; and McDaniel contends that she substantially complied with CMO 19 and thus was not at fault. The district court found no reasonable justification for failure to file a PFS on time, which is tantamount to a determination of fault. Our review of the record also indicates that failure to comply with CMO 19 was not outside the litigants' control, which satisfies the standard for imposing sanctions. Id.; In re Virtual Vision, 124 F.3d at 1143-44; W. Coast Theater, 897 F.2d at 1523. None of these parties sought more time or the court's approval for a different approach to allow for unusual difficulties. Nor does substantial compliance show the absence of fault, as McDaniel maintains, because CMO 19 requires complete compliance. Her failure to sign the PFS was unexplained, and there is no indication that she was unable to stay in touch with counsel. Thus, dismissal was an available sanction for each of these parties.
79
Weighing the dismissal factors, we conclude that the district court had discretion to dismiss. Although the district court did not explicitly discuss Malone in this case, it was not required to. See, e.g., Ferdik, 963 F.2d at 1261. Our review of the record indicates that the first two factors strongly support the district court's decision. CMO 6 set forth a frame-work for discovery that was tightened in CMO 10 when many plaintiffs failed to comply, and again in CMO 19 when delinquencies still existed more than two years later. The Riley actions had been pending in MDL 1407 for one to three years, during which period defense discovery, triggered by completed Fact Sheets, could not begin.
80
The district court found prejudice and we are not firmly convinced this is wrong, as prejudice is presumed from unreasonable delay. In re Eisen, 31 F.3d at 1452-53. These actions were stalled for anywhere from one to three years. Without a completed PFS, a defense could not be mounted, the structure for MDL 1407 discovery — carefully-tailored by court and counsel — was thwarted, and the actions could not move toward remand. Failure to produce documents as ordered is prejudicial, whether or not there is belated compliance. Payne, 121 F.3d at 508. A plaintiff's excuse for default or delay is relevant, and the district court found no reasonable justification for the conduct here. Samuels offered no explanation at all; Holmes's co-plaintiffs failed to explain why they waited two years to try to find another witness who might provide the requested information; Riley's claims of incapacitation are unsubstantiated and her daughter did not obtain a power of attorney until after her action had been dismissed; and McDaniel did not indicate why timely communication was impossible. Accordingly, the prejudice factor weighs heavily in favor of dismissal, and the fourth factor — public policy favoring disposition of cases on the merits — offers little support to plaintiffs in these circumstances.
81
Although the district court did not explicitly consider the availability of less drastic sanctions, it is apparent from the record that progressive sanctions had been considered. The court had tried in CMO 10 to compel compliance with CMO 6 by deferring the start of a one-year discovery period until the PFS was completed; when that didn't work, it entered CMO 19 requiring submission of a PFS complete in all respects and providing for a warning program that the defense followed in these actions. In each of these cases, letters were sent giving notice of deficiencies, affording Riley, Samuels, Holmes, and McDaniel successive opportunities to comply with the court's orders, and warning of dismissal under CMO 19 should the deficiencies not be corrected. There is no reason the court should have believed that any of these parties would comply in the future. In addition, the text of Fed. R.Civ.P. 37(b)(2) gives notice that dismissal is a possible sanction for failure to obey discovery orders; CMO 1 warns that failure to produce required documents will be treated as an infraction of a court order justifying appropriate sanctions; and the district judge advised all MDL 1407 parties on July 31, 2003 that any case that had not complied with her discovery orders would be dismissed. As Judge Rothstein explained, "the time has come to figure out which of these cases are real and which of them aren't. And if discovery hasn't been complied with, there's a strong presumption on my part that the case should be dismissed." Further, these dismissals were entered only after the parties had been given an opportunity to explain delay and urge alternative sanctions. In light of the number and clarity of warnings, the court's findings that these parties ignored the warnings, and the progression of CMOs 6, 10, and 19, this factor supports dismissal. See Ferdik, 963 F.2d at 1262.
82
We conclude that dismissal was within the court's discretion.
IX
Ackel, Arrington, and McGriggs17
83
Leslie Ackel, et al., Bridgett Arrington, et al., and Calvin McGriggs, et al. appeal dismissal of their actions for failure to file new individual complaints as required by CMOs 15 and 15A, and from denial of their motions for reconsideration. None of the parties to Ackel, Arrington, or McGriggs filed a severed complaint before the deadline set in CMO 15 (June 29, 2003), or requested an extension. However, the Arrington and McGriggs plaintiffs filed new individual complaints between August 4 and August 19, and the Ackel plaintiffs followed suit between August 27 and October 14, 2003.
84
CMO 15 applied to numerous cases that joined unrelated claims of multiple plaintiffs who allegedly took a PPA-containing product without specifying which product was ingested or which manufacturer caused their injuries. The court found as to all such actions that the threshold requirements for permissive joinder under Rules 20 and 21 of the Federal Rules of Civil Procedure, which provide that multiple plaintiffs may "assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action," could not be met because the multiple-plaintiff cases did not seek relief arising from the same transaction or occurrence. Thus, severance of the individual plaintiffs was proper. In addition, the court noted that under Rule 21(b), "[t]he court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party, and may order separate trials or make other orders to prevent delay or prejudice." Accordingly, it ordered individual new complaints, which would relate back to the date of the original complaint, to be filed within 30 days in all cases that contained multiple plaintiffs.
85
CMO 15A, entered August 26, 2003, served as an adjunct to CMO 15 to give the parties a mechanism for resolving "noncompliant" severed complaints and dismissal of original multi-plaintiff complaints. It allowed defendants to move to dismiss with prejudice the original case as to those plaintiffs who failed properly to file an individual new complaint, and as to those plaintiffs who filed an individual new complaint which did not identify a product manufactured by the moving defendant. CMO 15A also provided that upon motion, non-compliant complaints must be refiled with the appropriate information within 30 days, otherwise dismissal with prejudice would result. In addition, CMO 15A states that 86 original multiple-plaintiff complaints, including Ackel and McGriggs (of which Arrington was then a part) shall be dismissed with prejudice as of the effective date of the order (60 days later, or October 26, 2003), which includes any plaintiffs for whom an individual severed complaint was not timely filed. Simultaneously, the district court entered a separate order providing: "Pursuant to Case Management Orders 15 and 15A, the original multiple plaintiff Complaints listed in Exhibit A to this Order are hereby DISMISSED WITH PREJUDICE." Ackel and McGriggs are listed in this Exhibit.
86
By October, some plaintiffs who had filed untimely severed complaints were taking the position that CMO 15A extended the deadline for filing by 60 days. Defense Liaison Counsel disputed this interpretation, arguing that the August 26, 2003 order dismissed both the original multiple-plaintiff complaints and the claims of plaintiffs who failed to file severed complaints within the 30 days prescribed in CMO 15. Given an opportunity to respond by the court, counsel in Arrington admitted to filing late but argued that defense counsel had agreed to extensions; no responses were filed in Ackel and McGriggs. On October 30, the court entered an order holding that CMO 15 makes clear on its face that new individual complaints were to be filed in any pending multi-plaintiff cases within 30 days, that is, by June 29, 2003, and that nothing in CMO 15A alters that 30-day period. We accept the court's finding of what its order requires. See Yourish, 191 F.3d at 991. The court then directed defendants to file a single proposed order of dismissal in all cases in which plaintiffs filed untimely new individual complaints, which they did as to Ackel, Arrington, and McGriggs.
87
The court rejected Arrington's argument that defendants had agreed to extensions, and Ackel's that filing severed complaints late — but before the proposed orders of dismissal had been served — rendered the issue of compliance moot. It denied Arrington's and McGriggs's motion to reconsider based on oversight of counsel, noting that it is the responsibility of all attorneys to keep track of deadlines relevant to their clients' cases. Beyond this, the court determined that dismissal was warranted under the Malone factors. In particular, it found that the practical effect of failure on the part of plaintiffs in multiple-plaintiff cases to file severed complaints specifying the products ingested and the manufacturers causing injury in a timely fashion prevented the cases from moving forward. It also noted that failure to comply with CMO 15 diverted the court's time and resources, and prejudiced defendants because without the information contained in the severed complaints, their ability to defend these cases was seriously compromised. Further, the court stated that it was impossible to dispose of unsevered cases on the merits, and that unwillingness to file severed complaints or delay in doing so was not excusable.
88
* Ackel and Arrington
89
Ackel and Arrington contend that dismissal is too harsh a sanction and that their delay in filing new individual complaints was not the result of willfulness, fault, or bad faith. To be clear, these are not Rule 37 dismissals for failure to make discovery; rather, they are dismissals for failure to comply with court-ordered severance. Regardless, the district court found their excuses for failing to comply with the court's severance order insufficient, which is tantamount to a determination of fault. Nothing in the record indicates that failure to comply with CMO 15 was outside their control. See Fair Hous., 285 F.3d at 905; In re Virtual Vision, 124 F.3d at 1143-44; W. Coast Theater, 897 F.2d at 1523.
90
Considering the dismissal factors, we agree with the district court's assessment of the impact that failing to file severed complaints has on the public interest in expeditious resolution and on its own docket. CMO 15 itself is not challenged on appeal, so whether severance was a needless formality for some individual plaintiffs misses the point of the overall need, and requirement, to break out the allegations in multiple-plaintiff cases. The first two factors therefore weigh strongly in favor of dismissal.
91
Prejudice is the more difficult question in this case, as the delay in complying was between five and twelve weeks. Five weeks may not seem like too much, but the district court is in the best position to measure the effect of delay on the defendants in these cases and overall. The situation that led to CMOs 13 and 15 had been building for two years during which defendants in multiple-party complaints did not know what they were defending. In addition, the risk of prejudice is related to the reason for default. See, e.g., Malone, 833 F.2d at 131; Yourish, 191 F.3d at 992. In Yourish, for example, we upheld a dismissal with prejudice when the plaintiff failed to file an amended complaint within the 60 days allowed by a district court order, noting among other things that the paltry excuse for default on the judge's order indicates prejudice to defendants from the delay. Here, Ackel proffered no excuse, and the district court found Arrington's conduct inexcusable.
92
At least two hundred actions were subject to CMO 15 and the court was forced to deal with more than 127 individuals who filed a severed complaint late. Nevertheless, the district court was careful to consider the particular situation and explanation offered by these plaintiffs, with the exception of the McGriggs plaintiffs, whose circumstances the court did not address adequately. As to the other plaintiffs, however, Judge Rothstein discriminated among them by holding that the delay caused by a group of ten who filed their severed complaints one day after the deadline was inconsequential. How much delay is too much delay is a matter quintessentially within the discretion of the district judge, who is best situated to balance the degree of delay, the importance of prompt compliance, the effect on her docket and defendants, and the justification. Whether any of us would have drawn the line differently is not the issue; the district court here, fully informed, believed the Ackel and Arrington delay was consequential. See Estrada, 244 at 1056 (reiterating that "`the question is not whether this court would have, as an original matter, imposed the sanctions chosen by the trial court, but whether the trial court exceeded the limits of its discretion'") (quoting Halaco Eng'g Co. v. Costle, 843 F.2d 376, 379 (9th Cir. 1988)). In the circumstances of MDL 1407, we cannot say that the district judge lacked discretion to make this call.
93
Ackel and Arrington also rely on the fact that they had already furnished Fact Sheets and Affirmations naming the drugs ingested and the respective manufacturers, so defendants could not have been prejudiced by their failure to repeat the same information in a severed complaint. However, that compliant pleadings are ultimately filed does not compel a district court to conclude that failure to comply with a court order doesn't matter. See Computer Task Group, 364 F.3d at 1116 (rejecting similar argument); Payne, 121 F.3d at 508. Nor are we impressed with the argument advanced by the Ackel and Arrington plaintiffs that there could be no prejudice because it took defendants over five months from the June 29, 2003 deadline to ask the court for assistance. That delay came about only because of a dispute between plaintiffs and defendants about the effect of the August 26 order dismissing these actions with prejudice.
94
The district court did not explicitly discuss availability of less drastic sanctions in its order, but it implicitly did by rejecting the Ackel plaintiffs' contention that dismissal was too harsh a remedy. Also, the fact that the court examined each case discretely — with the exception of the McGriggs plaintiffs, whose situation the court did not properly consider — and determined that no sanctions were warranted in some, and that dismissal was warranted only absent a convincing reason for failure to comply with CMO 15 in others, indicates the court was sensitive to an appropriate level of sanction.
95
We do not have a firm conviction that the district court "committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors" in Ackel and Arrington. Ferdik, 963 F.2d at 1260; Yourish, 191 F.3d at 992 (applying standard).
B
McGriggs
18
96
The McGriggs plaintiffs were dismissed because they filed severed complaints between August 9 and August 19, five weeks after the June 29, 2003 deadline set by CMO 15. On August 26, at least a week after the McGriggs plaintiffs filed their severed complaints, the district court entered CMO 15A, which provided for dismissal with prejudice of all jointly filed complaints, including the complaints of those like the McGriggs plaintiffs, for whom a timely severed complaint had not been filed by the June 29 deadline. Although Fed.R.Civ.P. 37(b)(2) and 41(b) provide notice that dismissal is a possible sanction for failure to obey pretrial discovery orders, see Valley Eng'rs, 158 F.3d at 1056-57, CMO 15 gave no explicit warning. And although the district court orally admonished plaintiffs that failure to file severed complaints could result in dismissal, it did so only on July 31, 2003 — more than a month after the June 29, 2003 deadline had passed.
97
The court's rationale in entering CMO 15 was sensible: each defendant in MDL 1407 needed and was entitled to know the particular plaintiff who was suing it, why that plaintiff was suing it and which product was at issue. Applied to the McGriggs plaintiffs, this rationale does not justify the sanction they suffered.
DISCUSSION
98
The McGriggs plaintiffs comprise two subsets: the McGriggs plaintiffs and the Harris plaintiffs ("the McGriggs plaintiffs"). The district court's Malone analysis is inadequate with respect to both subsets because the court did not acknowledge that the initial multiparty complaint each subset filed was already detailed, identifying Bayer as the only defendant in the case of the McGriggs subset, and Delaco (and Delaco's successor) in the case of the Harris subset. These original multiparty complaints made clear, respectively, that Alka Seltzer Plus Cold and Bayer, and Dexatrim and Delaco (and Delaco's successor), were the sole drugs and defendants at issue, and the original complaints alleged specific harms suffered by each plaintiff on precise dates. Although the McGriggs and Harris plaintiffs were necessarily subject to the global application of CMO 15, they rightly argue that filing severed complaints (which they did do, a month and a half late) did not provide the court or defendants with any information they did not previously have. This cannot be said of the Ackel and Arrington plaintiffs, who were also dismissed with the McGriggs plaintiffs, because their original multiparty complaints were not so specific. Whereas "the practical effect of [the] failure on the part of [the Ackel and Arrington plaintiffs] to file severed complaints specifying the products ingested and the manufacturers causing injury ... [was to] prevent[ ] the cases from moving forward," supra p. 1245, no evidence suggests the McGriggs plaintiffs' late compliance caused any such delay.
99
The McGriggs plaintiffs' failure timely to obey the court's orders was not prejudicial to the public's interest in the expeditious resolution of litigation or the court's management of the case, much less to defendants. Defendants did not lack details about the injuries alleged by the McGriggs plaintiffs. The defendants named in the original McGriggs complaint knew what they were defending against. MDL 1407 litigants with no liability exposure in the McGriggs cases were not forced to expend unnecessary resources in cases in which they were not true parties.
100
The McGriggs plaintiffs blamed their noncompliance with CMO 15 on an oversight of their counsel, who did not think to file separate complaints because the original complaint specifically identified the products and defendants at issue. Given that these excuses were "anything but frivolous," defendants had an obligation to show actual prejudice suffered by the delay, see In re Eisen, 31 F.3d at 1452-53, a showing they did not make, and cannot make, because they had all the information CMO 15 required in the McGriggs plaintiffs' original complaint (as opposed to the Ackel and Arrington plaintiffs, whose multiparty complaints were not so detailed). Indeed, far from impairing defendants'" ability to go to trial," Adriana, 913 F.2d at 1412, the McGriggs plaintiffs' detailed original complaint allowed discovery to proceed, and written discovery to be completed. Accordingly, defendants cannot show loss of memory or evidence. See In re Eisen, 31 F.3d at 1453. Although "the district court is in the best position to measure the effect of delay on the defendants in these cases and overall," supra p. 1245, and although a district court is not compelled "to conclude that failure to comply with a court order doesn't matter" because "compliant pleadings are ultimately filed," supra p. 1246, the circumstances the McGriggs plaintiffs present show the limits of these prudential notions. Ultimately, a district court must acknowledge and evaluate the unique circumstances an individual MDL plaintiff presents and act accordingly. Here, the district court's neglect in doing something so basic means that we cannot defer to its finding of prejudice.
101
Fundamentally, the McGriggs plaintiffs' delay in providing information they had already given did not cause prejudice sufficient to warrant dismissal (as opposed to a different kind of sanction), especially in view of the public policy favoring resolution on the merits. "It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities." Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). In Malone, Exxon, Adriana and Morris, we approved of the harsh punishment of dismissal because we had "no doubt" about the clearly substantiated, prejudicial effect of the parties' egregious conduct. See Malone, 833 F.2d at 131; In re the EXXON VALDEZ, 102 F.3d at 433 ("The appellants' total failure to respond to discovery and the time consumed by attempting to secure compliance prejudiced appellees.") (emphasis added); Adriana, 913 F.2d at 1412 ("Here, the repeated failure of Adriana to appear at scheduled depositions compounded by their continuing refusal to comply with court-ordered production of documents constitutes an interference with the rightful decision of the case.") (emphasis added); Morris, 942 F.2d at 652 (plaintiffs' two-year failure to move toward disposition on the merits where they unnecessarily delayed, failed to respond to correspondence, failed to appear at meetings and misrepresented intentions prejudiced defendants and obstructed resolution of their claim on the merits). But defendants who must show actual prejudice — as here, where the McGriggs plaintiffs proffered a serious excuse — may not make this showing by mere assertion.19
102
Contrary to the dissent's assertion (Dissent at 1253), we cannot in these circumstances summarily rely on a case like Computer Task Group, 364 F.3d at 1116, for the proposition that failure to produce discovery required by a court order is not excused because the same information may be available elsewhere. In Computer Task Group, a recalcitrant defendant engaged in a "baseless two year fight against each and every discovery request and court order" and did so "willfully and with the intent of preventing meaningful discovery from occurring." 364 F.3d at 1116. In contrast to the McGriggs plaintiffs' conduct, there the district court found that the defendant violated five court orders over a seven-month period
103
by failing to provide clear answers to interrogatories, giving contradictory responses, making frivolous objections, filing frivolous motions[,] failing to provide the information [the opposing party] sought[,] ... fail[ing] to pay one of the monetary sanctions[,] ... failing to produce important financial documents and "throwing up a series of baseless smoke screens [that] [took] the form of repeated groundless objections and contradictory excuses," which were "absurd" and "completely unbelievable."
104
Id. at 1115 (quoting the district court). The defendant blamed the loss of documents on an earthquake, a dropped computer and a residential move. Id. We agreed that these frivolous excuses "unnecessarily delayed the litigation, burdened the court and prejudiced [the plaintiff]," particularly because "most of the documents [the plaintiff] sought ... were never produced, despite court orders to do so, and most of what [the defendant] did submit came in two years after it was requested, and after discovery had already ended." Id. at 1116 (emphasis added). This delay "seriously prejudiced [the plaintiff], as key depositions had already been taken." Id.
105
On that egregious record, we upheld the district court's finding that the defendant's "over-all disruptive discovery practice regarding the interrogatories and requests to produce was done willfully and intentionally to stall and prevent [the plaintiff] from conducting meaningful discovery," and that it "ha[d] clogged the Court's docket, protracted th[e] litigation by years, and made it impossible for [the plaintiff] to proceed to any imaginably fair trial." Id. Under these circumstances, we held that the "failure to produce documents as ordered ... is considered sufficient prejudice." Id.
106
The McGriggs plaintiffs' conduct is nothing like the defendant's in Computer Task Group, nor is it analogous to the conduct of the MDL 1407 plaintiffs whose dismissals we affirm. Even if the McGriggs plaintiffs' belated compliance did not generally cure what minimal prejudice defendants suffered, if any, their conduct was not willful or egregious, and they did not refuse to participate in discovery or engage in lengthy delays that "deprived [defendants] of any meaningful opportunity to follow up on [the] information, or to incorporate it into their litigation strategy." Payne, 121 F.3d at 508. Nor did the McGriggs plaintiffs confound their own efforts to advance their cases. Rather, they reasonably believed their complaints were in compliance with the intent of the CMOs and that it was therefore unnecessary for them to file a severed complaint or affirmation. To the extent the McGriggs plaintiffs were wrong, they rectified their deficiencies within five weeks of the due date of CMO 15. Although we generally recognize that "an involved, complex case increases the prejudice from the delay," Anderson, 542 F.2d at 525, we cannot affirm the district court's dismissal because of any prejudice the McGriggs plaintiffs' actions caused.
107
We also reject defendants' argument that if the district court excused the McGriggs plaintiffs for their late filing, it would have broadcast a message to all MDL 1407 litigants that CMOs could be disobeyed with impunity. Even were that true, dismissal was not the only sanction that could send the necessary message; lesser punishments tailored to the plaintiffs' violation can be equally effective. We have identified examples:
108
a warning, a formal reprimand, placing the case at the bottom of the calendar, a fine, the imposition of costs or attorney fees, the temporary suspension of the culpable counsel from practice before the court, ... dismissal of the suit unless new counsel is secured[,] ... preclusion of claims or defenses, or the imposition of fees and costs upon plaintiff's counsel ....
109
Supra p. 1228 n. 5 (quoting Malone, 833 F.2d at 130, 132 n. 1) (internal quotation marks and citations omitted). One obvious penalty would have been monetary sanctions imposed on plaintiffs or their counsel in an amount sufficient to "send a message."20 But we do not know why this or some other sanction would not have worked, because the district court did not address alternatives.21
110
If we endorsed the court's failure to impose lesser sanctions under these circumstances, we would risk making dismissal too attractive (and too available) an option for defendants to pursue and a MDL court to impose. This is all the more true where, as here, the court dismissed the McGriggs plaintiffs sua sponte instead of in response to a noticed motion. As we note elsewhere, supra p. 1229, such an action requires us to focus more closely on the lack of warning and the failure to consider less drastic alternatives. See Oliva, 958 F.2d at 274. But when a party's conduct is not egregious or when a party receives insufficient warning, the failure to consider any alternatives at all limits the deference we give a MDL court. Plaintiffs should not be casualties of a court's readiness to skip to the most drastic sanction to deter other, more culpable plaintiffs.
111
In sum, although we grant additional deference to a district court administering a MDL proceeding, due process and fundamental fairness may not be sacrificed to provide assembly-line justice. The McGriggs plaintiffs "retain[ed] their individual identities," In re Career Academy Antitrust Litig., 57 F.R.D. 569, 570 (E.D.Wisc.1972), when they were involuntarily transferred to MDL 1407, and their arrival in the litigation did not "change the[ir] rights[as] parties." In re Equity Funding Corp. of America Sec. Litig., 416 F.Supp. 161, 176 (C.D.Cal.1976) (quoting Johnson v. Manhattan R.R., 289 U.S. 479, 496-97, 53 S.Ct. 721, 77 L.Ed. 1331 (1933)). Because the district court failed to provide the McGriggs plaintiffs the individualized consideration to which they were entitled, we reverse its dismissal and remand for further proceedings.
X
Sasseen
22
112
Donna Sasseen appeals dismissal of her action with prejudice for failure to file an Affirmation setting forth the PPA products that she ingested and the alleged manufacturers or distributors of such products, as required by CMO 13.
113
Sasseen's complaint, transferred to MDL 1407 on November 12, 2003, named multiple defendants and thus was subject to CMO 13, issued on May 2, 2003, and CMO 13A, issued on June 21, 2003, requiring plaintiffs in multi-defendant cases to file an Affirmation within thirty days of the order or the date their case was docketed in the MDL listing the products allegedly ingested and the manufacturers of those products. Both provide that "if the Affirmation fails to disclose the ingestion by [the] plaintiff of a PPA-containing product manufactured and/or distributed by a named defendant, then such defendant is authorized to submit to the Court the name of the plaintiff who alleges use of a PPA product, requesting dismissal of that defendant with prejudice with regard to claims brought by the named plaintiff." Each also states that defendants may seek "additional remedies or sanctions against any plaintiff with regard to discovery obligations set out in this CMO, prior CMOs and/or identification of defendants' products in a Plaintiff Fact Sheet." CMO 13A simplified the paperwork required to be filed with proposed dismissals, but did not change the Affirmation requirement itself.
114
Sasseen's Affirmation was due on December 15, 2003, which she concedes is a deadline she did not meet. On February 3, 2004, Defendants' Liaison Counsel filed a motion to dismiss eleven cases, of which Sasseen's was one, pursuant to Rule 37(b)(2)(C) and Rule 41(b). Sasseen's February 9, 2004 response included an untimely Affirmation, which listed the same products and defendants set forth in her complaint.
115
The district court dismissed for reasons stated in the motion to dismiss. These included that CMOs 13 and 13A established a procedure whereby a defendant not named in an Affirmation or the Plaintiff's Fact Sheet could move to be dismissed with prejudice from that individual plaintiff's case; however, failure to file any Affirmation prevented defendants from taking advantage of this procedure, thus causing them to spend unnecessary resources conducting discovery in cases in which their product may not be at issue. Also, failure to file Affirmations warranted dismissal under the Malone factors because: (1) The defendants' inability to move to be dismissed unnecessarily prolonged their involvement in this litigation, and the public interest in expeditious resolution of litigation is not served by plaintiffs who fail to file court-ordered Affirmations designed to narrow the field of potentially culpable defendants and to clarify the issues for trial. (2) Failure to conduct discovery impeded the court's ability to manage its docket, as it does not reflect the true parties to each individual action. (3) Defendants who had no liability exposure were being forced to expend unnecessary resources to participate in cases in which they were not true parties, and could not make use of the court-sanctioned method of seeking dismissal upon receipt of an Affirmation. Further, plaintiffs had control over who the parties to their actions would be, as well as exclusive knowledge of what products they allegedly ingested. (4) Although public policy favors trying cases on their merits, it also favors the principle that litigants should be ready to prosecute claims when brought, and should not bring suit against a party who is not liable for their alleged injuries. (5) A less drastic sanction was available to these plaintiffs. If they had filed Affirmations, defendants could have utilized the court-sanctioned method of dismissing individual defendants pursuant to CMOs 13 and 13A instead of seeking to dismiss these cases in their entirety.
116
Sasseen argues that she complied with the intent of CMO 13 to give proper notice to the defendants because her complaint pled with specificity the products she ingested and the defendants who manufactured them. As Sasseen is basically in the same posture as McGriggs, it is controlled by it and accordingly, we reverse.
XI
Conclusion
117
MDL 1407 is quite a complicated proceeding, involving hundreds of actions and thousands of individual claims against many defendants. In consultation with Lead and Liaison Counsel and steering committees, the district court crafted case management orders to "uncomplicate" the multidistrict proceedings. Congress contemplated that an MDL court should do this to secure the "just and efficient conduct" of actions coordinated for pretrial purposes under 28 U.S.C. § 1407(a).
118
The orders themselves are not at issue; they were not objected to, relief from them was not sought, and they are not challenged on appeal. They sought to move individual cases forward by simplifying the discovery process (CMOs 6, 10, and 19), and by severing multiple-plaintiff claims and claims by plaintiffs against multiple defendants into manageable actions against true defendants (CMOs 13 and 15).
119
Many plaintiffs, some of whom pursue the appeals that are before us, chose not to comply. All had a chance to explain why not, and the district court found the explanations wanting.
120
Failure to comply with case management orders in MDL proceedings such as MDL 1407, where both sides agree that the orders serve the important interest of moving the cases along, adversely affects the public interest, as well as the parties' private interest, in expeditious resolution of litigation. A district court cannot manage its docket if such orders are not respected. This harms plaintiffs with meritorious claims whose progress toward resolution is bogged down by others who will neither put up nor shut up; defendants who do not know against whom or what they are defending and so can neither conduct case-specific discovery, seek an early exit by summary adjudication, nor assess the potential value of the plaintiffs' claims for settlement; and the public, whose access to the courts is impeded when judicial resources are diverted from the proper administration of justice to dealing with recalcitrant parties.
121
In these cases both the orders and the court's expectations were clear. The court was responsive to proper requests for relief, and, with the exception of the McGriggs plaintiffs and Sasseen, excused defaults that were non-consequential. However, the court needed to enforce its orders in cases that were stalled by noncompliance so that the coordinated cases for which it was responsible could be resolved on the merits by motion, settlement, or remand for trial.
122
Accordingly, we conclude that while the factors which guide a court's discretion in ordinary cases on an ordinary docket also inform an MDL court's decision to invoke dismissal as a sanction for failure to comply with its orders, the court's discretion is necessarily informed, and broadened, by the number of actions, their complexity, and its charge in the multidistrict context to promote the just and efficient conduct of actions that are coordinated or consolidated for pretrial purposes. The district court acted within its discretion in deciding that dismissal of the cases before us, except for McGriggs and Sasseen, was warranted. We therefore uphold its judgment in Allen, Anderson, Alford, Clinton, Page, Riley, Holmes, McDaniel, Samuels, Ackel, and Arrington. We reverse as to McGriggs and Sasseen.
123
AFFIRMED IN PART AND REVERSED IN PART.
Notes:
*
A complete list of the appellants and appellees with district court case numbers is set forth in a separate, unpublished order filed contemporaneously with this opinion. Certain appellants on that list were dismissed in this court's orders filed on January 14, 2005, and February 21, 2006. The names of some of the dismissed appellants who were lead plaintiffs in multi-plaintiff cases have been retained on the caption for reference purposes only
**
Eighteen appeals, several consolidated, were randomly assigned to two panels, one consisting of Judges D. Nelson, Rymer, and Fisher, the other of Judges Leavy, Rymer, and Fisher. The Nelson/Rymer/Fisher panel heard argument on February 7, 2006 inHill v. Bayer, No. 05-35219, and Anderson v. Bayer, No. 04-35875. The panel unanimously found Womack v. SmithKline Beecham, No. 04-35933, Page v. Bayer, No. 04-36137, Ackel v. Bayer, No. 04-35588, Arrington v. Bayer, No. 04-35611, McGriggs v. Delaco, No. 04-35614, Riley v. Wyeth, No. 05-35105, Holmes v. Bayer, No. 05-35129, McDaniel v. Wal-Mart Stores, No. 05-35147, and Samuels v. Bayer, No. 05-35184, suitable for decision without oral argument. Disposition of these cases has priority over cases heard by the Leavy/Rymer/Fisher panel on February 8, 2006 in Burrage v. Bayer, No. 03-35953, Allen v. Bayer, No. 04-25370, Leon Anderson v. Bayer, No. 04-35562, and Lorrilla Hill v. Bayer, No. 04-85518. This panel unanimously found Clinton v. Delaco, No. 04-35621, Sasseen v. IDE Interstate, No. 04-35884, and Alford v. Bayer, No. 05-35121, suitable for decision without oral argument.
This opinion resolves all appeals except Womack v. SmithKline Beecham, No. 04-35933, Hill v. Bayer, No. 05-35219, Anderson v. Bayer, No. 04-35875, Burrage v. Bayer, No. 03-35953, and Lorilla Hill v. Bayer, No. 04-35518, for which separate unpublished dispositions have been filed.
1
All judges participated in deciding, and sign the opinion with respect to, Parts I, II and III which are common to all appeals. Judges Nelson and Leavy participated in deciding — and sign an opinion only with respect to — those appeals assigned to the panel of which they were respectively a member. For convenience, we note panel composition for discrete appeals Part by Part
2
The disposition as toMcGriggs is authored by Judge Fisher, joined by Judge D. Nelson.
3
More than 3300 actions were eventually listed on the docket in MDL 1407See Judicial Panel on Multidistrict Litigation, Distrib. of Pending MDL Dockets (as of Jan. 10, 2006), http://www.jpml.uscourts.gov/ Pending_MDLs/PendingMDL-January-06.pdf; http://www.jpml.uscourts. gov/Pending_MDLs/pending_mdls.html.
4
For example, more than 850 claims were dismissed pursuant to defendants' motions to dismiss for failure to comply with CMO 6 inAllen, Anderson, Hill, and Clinton; of these, 237 pursue a challenge to these dismissals in the Allen, Anderson, and Clinton consolidated appeals.
5
Malone notes that "[a]lternative sanctions include: `a warning, a formal reprimand, placing the case at the bottom of the calendar, a fine, the imposition of costs or attorney fees, the temporary suspension of the culpable counsel from practice before the courts, . . . dismissal of the suit unless new counsel is secured . . . preclusion of claims or defenses, or the imposition of fees and costs upon plaintiff's counsel. . . ." Id. at 132 n. 1 (quoting Titus v. Mercedes Benz of N. Am., 695 F.2d 746, 749 n. 6 (3rd Cir.1982)). Giving another chance following a failure to comply is also a sanction, albeit a lenient one. Id.
6
The judges who coordinated the electrical engineering cases contributed their experience to theManual on Complex and Multidistrict Litigation, which was developed in tandem with the proposed legislation that ultimately became § 1407. 15 Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, FEDERAL PRACTICE AND PROCEDURE § 3861 (2d ed.1986).
7
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (setting standards for admissibility of expert opinions).
8
A great number of MDL 1407 plaintiffs complied with the court's orders, and their cases moved forward with relative speed. In some instances, settlement resultedSee In re Phenylpropanalomine (PPA) Prods. Liab. Litig., 227 F.R.D. 553 (W.D.Wa.2004) (certifying class and approving settlement for plaintiffs alleging injury due to ingestion of Dexatrim). In others, remand for trial. Remand procedures were adopted November 18, 2003, see CMO 17, http://www.wawd.uscourts.gov/mdl, and the district court recommended remands in the first wave of cases in March, 2004. Id.
9
Allen and Anderson are before Judges Leavy, Rymer, and Fisher.
10
Leon Anderson, the lead plaintiff in case No. 04-35562, was dismissed as a party to the appeal for lack of jurisdiction pursuant to our order dated February 21, 2006. We retain his name in this opinion for convenience to designate the group for whom he was formerly lead plaintiff
11
The district court and parties refer to the dismissal factors as "Malone factors," probably because our opinion in Malone provides a comprehensive discussion of them. 833 F.2d at 130-134. We recognized the importance of the same five factors before Malone was decided, but conforming to the practice frequently followed in MDL 1407, we, too, refer to them interchangeably as "Malone" or "dismissal" factors.
12
Alford is before Judges Leavy, Rymer, and Fisher.
13
TheClinton appeals are before Judges Leavy,
14
Page is before Judges D. Nelson, Rymer, and Fisher.
15
While our case law suggests some temporal guidelines for issuance of a warning in ordinary litigation,see Pagtalunan, 291 F.3d at 643 (suggesting a warning may be inadequate if it did not occur after the plaintiff's violation of a court order), such guidelines have no salience in the MDL context and would make it impossible to administer the vast number of cases in an MDL. As these guidelines have never been extended to the MDL context, we decline to extend them now as doing so would render an MDL unworkable.
16
TheRiley appeals are before Judges D. Nelson, Rymer, and Fisher.
17
Ackel, Arrington, and McGriggs are before Judges D. Nelson, Rymer, and Fisher.
18
The disposition as toMcGriggs is authored by Judge Fisher, joined by Judge D. Nelson. Judge Rymer dissents.
19
We elsewhere,supra p. 1233, cite Fair Housing of Marin, 285 F.3d at 905, and In re Virtual Vision, 124 F.3d at 1143, for the proposition that "[d]isobedient conduct not shown to be outside the litigant's control meets th[e predicate] standard [of fault]." However, not all disobedient conduct is of the same order, and a conclusory assertion of prejudice will not show why the disobedient conduct in Fair Housing and Virtual Vision is analogous to conduct under review. Although the McGriggs plaintiffs' late filings were not outside their control, their behavior is not comparable to the parties' abusive behavior in Fair Housing and Virtual Vision. See, e.g., Virtual Vision, 124 F.3d at 1143-44.
20
Clients are often several steps removed from the conduct of multidistrict litigation, since even their representatives depend on the performance of proxies such as Lead and Liaison Counsel and Plaintiffs' Steering Committees. Where attorney sanctions are practicable, they may serve the heightened logistical needs of multidistrict litigation without overshadowing the interests of the parties represented
21
The dissent suggests that we err in reversing dismissal of theMcGriggs plaintiffs and Sasseen, No. 04-35884, infra p. 1252, because if every MDL plaintiff ignored a CMO simply because he thought it superfluous, "the very purpose of the MDL ... would be subverted." (Dissent at 1253.) As we explain above, we do not condone the noncompliance of the McGriggs plaintiffs or Sasseen. We hold only that dismissal — as opposed to another, more appropriate sanction — is not warranted under the circumstances they present.
22
Sasseen is before Judges Leavy, Rymer, and Fisher.
124
RYMER, Circuit Judge, dissenting as to McGRIGGS and concurring as to SASSEEN, with whom LEAVY, Circuit Judge, joins, concurring as to SASSEEN:
125
I would also affirm in McGriggs, for the same reasons we affirm in Ackel and Arrington. I am constrained to concur in Sasseen as it is materially indistinguishable from McGriggs. However, I disagree that either case should be resolved as the majority resolves McGriggs. In a nutshell, failure to make discovery required by a court order is not excused by the fact that the same information may be available elsewhere. See, e.g., Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1117 (9th Cir.2004). Honoring this rule is particularly important in the context of a multidistrict litigation proceeding such as MDL 1407, where hundreds of cases asserted claims based on ingestion of more than one PPA-containing product, and indiscriminately listed numerous manufacturers as defendants. CMO 13 was crafted to, and did, provide a sensible process for sorting this out. Even though some individual complaints may already have done so, many did not. The case management orders necessarily applied to all cases in which more than one product and more than one manufacturer were named. Sasseen, for example, sought no relief from this obligation. Indeed, it could not have been simpler for her to comply because all that was required was that she identify the manufacturer and the product — something she says she knew, and in fact had already done.
126
While the sanction of dismissal probably would not have been imposed were either McGriggs or Sasseen an individual case on an ordinary docket, the need for an order such as CMO 13 would not have arisen, either. Deciphering which complaints properly matched up products and defendants would entail reading tens of thousands of pieces of paper. I believe that Judge Rothstein properly "uncomplicated" the process by the device of requiring plaintiffs in multi-defendant cases to file a single piece of paper with all the necessary information. Rather than complying, Sasseen decided for herself to ignore the order. If all MDL plaintiffs were to do likewise, the very purpose of the MDL — to conduct transferred actions in a "just and efficient" way — would be subverted.
127
Therefore, I would affirm across the board.
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320 B.R. 357 (2005)
EDUCATIONAL CREDIT MANAGEMENT CORPORATION, Appellant,
v.
Bettie J. DURRANI, Appellee.
No. 04 C 4696.
United States District Court, N.D. Illinois, Eastern Division.
February 1, 2005.
*358 Mark E. Shure, Keating & Shure, Ltd., Chicago, IL, for Appellant.
Bettie J. Durrani, Chicago, IL, pro se.
MEMORANDUM OPINION
DER-YEGHIAYAN, District Judge.
This matter is before the court on Appellant Educational Credit Management *359 Corporation's ("ECMC") appeal of a bankruptcy court ruling. For the reasons stated below, the bankruptcy court's ruling is affirmed.
BACKGROUND
Appellee Bettie Durrani ("Durrani") attended Chicago University from 1984 to 1993. In 1989 she received a Bachelor of Arts degree in Independent Studies and in 1993 she received a Masters of Science Degree in Corrections and Criminal Justice. Durrani is now 51 years of age and has no dependents. Durrani was approximately 41 years of age when she received her Masters Degree. Durrani has a daughter who is now 21 years old, married, and lives with her husband.
In March of 1994, Durrani consolidated twelve of her school loans with ECMC, totaling $31,869.14. ECMC is a private non-profit corporation. On June 2, 1997, Durrani filed a Chapter 13 Bankruptcy Petition. Durrani also filed an adversary complaint in December of 2002, seeking a discharge of her student loan debt under the undue hardship provision of 11 U.S.C. § 523(a)(8). A trial was held and during the trial the bankruptcy court calculated that the loan payments for Durrani would be approximately $395 per month. In February of 2003, the bankruptcy court ruled that Durrani had not established the requirements for the undue hardship provision and her discharge request for her educational loans was denied. Durrani filed a motion for reconsideration and in June of 2004, the bankruptcy court granted the motion for reconsideration and discharged Durrani's entire student loan debt. ECMC appeals the discharge ruling.
LEGAL STANDARD
A federal district court has jurisdiction, pursuant to 28 U.S.C. § 158, to hear appeals from the rulings of a bankruptcy court. On appeal, the district court reviews the factual findings of the bankruptcy court under the clearly erroneous standard and reviews the bankruptcy court's legal findings under the de novo standard. In re A-l Paving and Contracting, Inc., 116 F.3d 242, 243 (7th Cir.1997).
DISCUSSION
ECMC argues that the bankruptcy court erred in finding that Durrani had shown undue hardship. A bankruptcy "does not discharge an individual debtor from any debt.... for an educational benefit overpayment or loan made, insured or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution, or for an obligation to repay funds received as an educational benefit, scholarship or stipend, unless excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtor's dependents...." 11 U.S.C. § 523(a)(8)(emphasis added).
ECMC first contends that the bankruptcy court committed an error when it relied upon non-controlling precedent. However, although the bankruptcy court made reference to rulings in other Circuit, the bankruptcy court expressly acknowledged that it "is bound by the Seventh Circuit's interpretation of Brunner as set forth in Robertson and reinforced in In re O'Hearn, 339 F.3d 559 (7th Cir.2003)." (Bk R 8). Thus, although ECMC speculates that the bankruptcy court gave too much weight to non-controlling precedent, the bankruptcy court made it clear that it abided by all Seventh Circuit precedent. Nothing prohibits the bankruptcy court from considering persuasive precedent in addition to Seventh Circuit precedent in making its ruling. ECMC claims that the bankruptcy *360 court did not follow the analysis set forth in In re O'Hearn. However, ECMC would do well to review the bankruptcy judge's ruling. The ruling of the bankruptcy judge specifically cites In re O'Hearn, applies the facts in the instant action to each of the factors set forth in In re O'Hearn, and the court states specifically in the conclusion of its ruling that Durrani has met all three prongs of the test enunciated in O'Hearn. Thus, ECMC's contention that the bankruptcy court ignored Seventh Circuit precedent and relied exclusively on non-controlling precedent is unfounded.
II. Undue Burden Analysis
In the Seventh Circuit, in order to meet the "undue hardship" requirement under 11 U.S.C. § 523(a)(8) a debtor must show that: "(1) the debtor cannot maintain, based on current income and expenses, a minimal standard of living for himself and his dependents if forced to repay the loans; and (2) additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) the debtor has made good-faith efforts to repay the loans." In re O'Hearn, 339 F.3d at 563.
A. Ability to Pay
ECMC argues that Durrani has failed to show that she cannot afford to repay her loans without falling below the minimum standard of living. ECMC points to expenses in Durrani's budget for credit card charges and ECMC asks the court to infer that she is spending the money on discretionary items. However, the bankruptcy court properly concluded that a more reasonable inference, considering all of the facts and circumstances in Durrani's life, is that the charges were merely made to pay for unexpected monthly expenses, such as clothing, which for example, is not included anywhere in the budget provided to the court. The bankruptcy court also correctly noted that neither are other items included in her budget for necessities such as household repairs. In fact, in response to ECMC's interrogatories Durrani explained that in the past she has incurred significant household expenses such as when she had to replace her refrigerator, repair her stove, and replace a broken dresser. (R. Int. 12).
Also, the bankruptcy court properly noted that, considering Durrani's health problems, the $100 per month allocated to medical expenses is not likely to be sufficient and such expenses are likely to increase. In regards to Durrani's cell phone expenses, she explained at trial that her neighborhood is dangerous and that she needs a cell phone for safety reasons. ECMC cites to case law that indicates that expenses such as cell phones are discretionary spending. However, ECMC construes the holdings in those cases too broadly. Perhaps in other cases a cell phone would be discretionary spending. However, based upon the circumstances in the instant action, the bankruptcy court could properly conclude that it was a reasonable necessity. ECMC also complains that Durrani has not provided sufficient records to substantiate her claim that she gives $226 per month to her church. However, the bankruptcy court properly considered Durrani's statement to the court that some of her contributions were made by cash contributions in the church basket and by other means that would not generate any type of receipt.
ECMC also complains that there is no evidence that Durrani has significant health problems that might inhibit her ability to perform her job. ECMC claims that other than the evidence regarding Durrani's handicapped parking placard, *361 she "provided no corroborating evidence regarding any medical conditions at trial...." (Applt. 4). Durrani has consistently indicated that she has significant health problems. In response to ECMC's interrogatory number 5 Durrani stated that she suffers from "diabetes, high blood pressure, high cholesterol, poor vision and osteoarthritis in [her] right knee." (R Int. 5). She also stated that, because she works with the public she suffers "from job-related stress, anxiety, and fatigue." (R Int. 5). Durrani also responded: "The diabetes causes me to be sick a lot and I have recurrent diabetic related infections." (R Int. 5).
ECMC attempts to make much of the fact that Durrani has indicated that she will retire at age 55, and ECMC refers to her "voluntary choice" to retire as if Durrani had indicated that she was going to do so in order to have more leisure time. However a close look at the evidence shows that ECMC is turning a blind eye to the totality of the evidence in this case. In response to another of ECMC's interrogatories Durrani stated the following:
In 2007, I will retire due to a combination of physical, emotional, and professional issues. My health is poor, I have a permanent disability, and I wrestle with high stress directly related to my job and finances. Every day, I push the limit trying to remain stable financially and emotionally, and I juggle everything to meet my expenses and assist my daughter with her college tuition. Because of the increased levels of emotional and physical stress, it is entirely possible, I may need to retire before I am eligible to without penalty in 2007.
(R Int. 13). The bankruptcy court heard testimony directly from Durrani about her health conditions and found her testimony to be credible. The bankruptcy court had the opportunity to determine from firsthand testimony whether Durrani's health conditions would impact her ability to pay. The bankruptcy court also made reasonable inferences from the evidence presented before it in coming to its conclusions concerning Durrani's health problems. We conclude that the bankruptcy court had sufficient evidence to support its findings. We do not find that the bankruptcy court erred in its determination regarding Durrani's ability to pay. It is clear from the record that Durrani's meager salary and her many necessary expenses would make it impossible for her to meet the $395 per month payments without falling into abject poverty.
B. Additional Circumstances
The bankruptcy court concluded that additional circumstances showed that Durrani would be unable to meet her loan repayments. The bankruptcy court found that her age was one additional circumstance because Durrani is 51 and will retire at age 55. The bankruptcy court correctly considered Durrani's age in its determination. The bankruptcy court also considered Durrani's health to be an additional circumstance. The bankruptcy court noted that Durrani suffers from diabetes, high blood pressure, high cholesterol, poor vision, and osteoarthritis in one knee. For the reasons stated above, there is evidence that shows that Durrani has significant health problems that are degenerative conditions and are likely to only get worse. Thus, the bankruptcy court properly addressed the additional circumstances in this action.
C. Good Faith Effort to Repay
The evidence shows that Durrani made a good faith effort to repay the loan. The bankruptcy court properly noted that Durrani has made nine payments and that after she filed for bankruptcy, she actually completed her plan and received a discharge *362 of her other debts. The bankruptcy court also noted that there was evidence that Durrani has engaged in extensive communications with ECMC and has attempted to work out her debt obligations rather than avoiding any contact with ECMC. ECMC points again to the fact that Durrani is going to retire as a basis to conclude that Durrani has not in good faith attempted to repay her loans. (Applt. 14). ECMC hints that her retirement is merely part of a scheme planned for decades to avoid her school loans. However, as explained above, this fact presented by ECMC is a red herring. Durrani has provided ample reasons for her planned retirement and has shown that her retirement will be a forced retirement due mainly to health problems.
CONCLUSION
Based on the foregoing analysis, we affirm the ruling of the bankruptcy court.
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280 F.3d 788
Ivy MASON, on her own behalf and on behalf of those similarly situated, Plaintiff-Appellant,v.Peter SYBINSKI, et al., Defendants-Appellees.
No. 01-2497.
United States Court of Appeals, Seventh Circuit.
Argued January 9, 2002.
Decided February 11, 2002.
COPYRIGHT MATERIAL OMITTED Kenneth J. Falk (argued), Jacquelyn E. Bowie Suess, Indiana Civil Liberties Union, Indianapolis, IN, for Ivy Mason.
David L. Steiner (argued), Office of Atty. Gen., Indianapolis, IN, for Peter Sybinski and Janet Corson.
Before FLAUM, Chief Judge, and HARLINGTON WOOD, JR., and EASTERBROOK, Circuit Judges.
FLAUM, Chief Judge.
1
Ivy Mason, on behalf of herself and a class of past, present, and future mentally impaired Social Security recipients who are institutionalized in Indiana state mental health institutions, brought action against the state of Indiana. The class sought declaratory and injunctive relief to prevent the state hospitals, appointed by the Social Security Administration ("SSA" or "the Administration") as representative payees, from deducting a portion of the recipients' Social Security benefits to pay for institutional maintenance without their voluntary consent. The class contends that the state hospitals' actions violate the anti-attachment provision of the Social Security Act ("the Act") as well as procedural due process. The district court granted summary judgment in favor of the state on all claims. Mason, on behalf of the class, now appeals. For the reasons stated herein, we affirm the decision of the district court.
I. Background
2
The SSA, when it determines that a recipient is unable to manage or direct management of her own Social Security benefits, appoints a representative payee to do the job for her. 42 U.S.C. § 405(j) (2001); 20 C.F.R. § 404.2001 (2000). Representative payees are subject to a number of Social Security regulations created to prevent misuse or abuse of the funds. The appointed payee must use the payments received only for the "use and benefit" of the beneficiary, "in a manner ... he or she determines, under the guidelines in this subpart, to be in the best interests of the beneficiary." 20 C.F.R. § 404.2035. The regulations define "for the use and benefit" of the recipient to include costs of current maintenance, 20 C.F.R. § 404.2040(a)(1), and define "current maintenance" to include customary charges by a state, federal, or private institution where the beneficiary is receiving care. 20 C.F.R. § 404.2040(b). The Act states, moreover, that a creditor who provides the beneficiary with goods or services for consideration cannot be that person's representative payee except, inter alia, when that creditor is a state-licensed or certified care facility. 42 U.S.C. § 405(j)(2)(C)(i)(III); 42 U.S.C. § 405(j)(2)(C)(iii).
3
The regulations set forth an order of preference in selecting a representative payee for institutionalized beneficiaries. If a legal guardian, spouse, other relative, or friend who demonstrates a strong concern for the recipient exists, the SSA will generally appoint that person to be the payee. If not, however, the Administration's preference is to appoint the state institution where the recipient resides. 20 C.F.R. § 404.2021(a).
4
When the SSA appoints a state hospital as representative payee, it provides notice to the hospital that it must use the payments for the benefit and care of the recipient. The Administration also provides notice to the beneficiary herself that a payee has been appointed and that she has the right to appeal that appointment. The recipient is told that the representative payee will be responsible for managing her benefits. In Indiana, when a state hospital is appointed payee, it verbally informs the beneficiary that her benefits may be used to pay for the cost of their care. Also, the SSA generally informs the beneficiary (and did so, by letter, in Mason's case) that the hospital, as payee, will apply part of the money toward its bill.
5
After receiving a recipient's benefit payment, the hospital deposits the money into a trust account. According to guide lines and specific instruction from the SSA, the hospital provides the recipient with spending money for bills, clothing and other reasonable expenses. It also deducts a portion of the benefits to pay for institutional costs. The hospital does not obtain written consent from the beneficiary to allow the state to apply the benefits to the cost of institutionalization.
6
Under Indiana law, residents of hospitals and institutions are liable for the cost of their treatment and care. Ind. Code § 12-24-13 (2001). If a person is legally admitted to a state institution, however, she is entitled to care and maintenance there, regardless of her ability to pay. Ind.Code § 12-24-5-4. When a patient is admitted, Indiana mental health institutions generally show her a notification of liability. After the hospital is appointed as representative payee for a patient, however, it does not inform her that she will be treated at the hospital even if she does not use her Social Security benefits to pay for the cost.
7
Ivy Mason, the class representative, is mentally disabled and has been a resident patient at Richmond State Hospital ("RSH") from July 7, 1992 to January 14, 1993; from October 4, 1994 to June 18, 1999; and from December 4, 1999 to the present. Upon her second and third admissions, pursuant to Indiana law, she signed a "Notification of Liability for Cost and Care of Treatment." From at least January 1998 until her second release, and for the entirety of her current stay at the hospital, RSH has been the representative payee for her Social Security benefits. On January 29, 1998, the SSA awarded Mason Social Security survivor's benefits retroactive to 1989 and informed her that she would be getting both ongoing monthly benefits in the sum of $618 as well as a lump-sum check for $34,408.73 for her back benefits. The SSA told both Mason and RSH that $25,942.73 of the lump-sum check was to be applied to her outstanding hospital bill. RSH did so and, under SSA guidance, also uses a portion of her monthly benefits check (as of the time of discovery, about $518) to pay her bill (which, again at the time of discovery, was approximately $7,170 per month). As of May 31, 2000, the bill for Mason's care at RSH totaled $412,070.98.
II. Discussion
8
We review the district court's grant of summary judgment de novo, construing all of the facts and reasonable inferences that can be drawn from those facts in favor of the nonmoving party. See Central States, Southeast & Southwest Areas Pension Fund v. Fulkerson, 238 F.3d 891, 894 (7th Cir.2001). A grant of summary judgment is appropriate if the pleadings, affidavits, and other supporting materials leave no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
9
a. 42 U.S.C. § 407
10
The class argues that, although the Social Security Act does allow state hospitals and institutions to act as representative payees, those hospitals cannot apply a resident recipient's benefits to its own costs, absent that beneficiary's consent, without violating the anti-attachment provision of the Act. That provision provides:
11
The right of any person to any future payment under this subchapter will not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.
42 U.S.C.§ 407
12
In short, the class members contend that the state's application of recipients' benefits to their cost of care without their specified consent is a form of "other legal process." In support of this argument, they attempt to extend a line of cases that interprets broadly the § 407 prohibition against attachment to include the situation where, as here, the state acts as representative payee. In Philpott v. Essex County Welfare Bd., the Supreme Court held that states are not in a preferred position compared to other creditors; they cannot subject benefit payments to any legal process. 409 U.S. 413, 93 S.Ct. 590, 34 L.Ed.2d 608 (1973). Similarly, the Supreme Court in Bennett v. Arkansas held that the anti-attachment provision applies to state creditors, such as hospitals, that have provided the beneficiary with care and maintenance. 485 U.S. 395, 108 S.Ct. 1204, 99 L.Ed.2d 455 (1988). This Court has held that when a state hospital asked a resident Social Security recipient to sign a form allowing the state to accumulate her benefits into a trust fund it could use to pay for the cost of care and maintenance, and that form did not inform the patient that it was revocable or that she would be treated regardless of whether she signed it, the state violated the Act's anti-attachment provision. Tidwell v. Schweiker, 677 F.2d 560, 567 (7th Cir.1982). If the form were signed voluntarily — that is, if the beneficiary were informed that the form was revocable and that she would receive treatment even if she did not sign it — then no violation would have occurred. Id.; see also Crawford v. Gould, 56 F.3d 1162 (9th Cir.1995) (holding that a state may apply a patient's benefits to the cost of her care only if she has provided consent.)
13
The class relies heavily on Tidwell to claim that Indiana, in the instant case, unlawfully subjected institutionalized recipients' Social Security benefits to legal process by taking a portion of those benefits without their voluntary consent. The holding of Tidwell, however, as well as those of Philpott and Bennett, did not involve the situation where the state acted as representative payee. In this case, the district court held, and we agree, that a representative payee's decision to apply benefits to the recipient's cost of care in a state institution does not amount to other legal process — even when the payee is the state itself. We decline to extend the Tidwell holding to cover such a circumstance. Moreover, the Supreme Court's decisions in Philpott and Bennett, which hold that just as other creditors do, a state creditor violates the anti-attachment provision when it attaches or subjects to other legal process a recipient's benefits — simply do not apply here because no attachment or legal process took place. A properly appointed representative payee's responsible management of a Social Security recipient's benefits cannot amount to "other legal process," regardless of whether that payee is an arm of the state.
14
The Social Security Act and regulations, as outlined above, permit — in fact, encourage — state institutions to act as representative payees and, more pertinently, when acting as payees, to apply recipients' benefits to the cost of their care and maintenance at a state institution where they reside. 20 C.F.R. § 404.2021; § 404.2035; § 404.2040. "Section 407 was not intended to outlaw a procedure expressly authorized by the Social Security Administration's own regulations." King v. Schafer, 940 F.2d 1182, 1185 (8th Cir. 1991). Generally, the Social Security Act prohibits creditors from acting as representative payees. 42 U.S.C. § 405(j)(2)(C)(i)(III). It does so for the same reason that it includes the anti-attachment provision: to protect beneficiaries' Social Security income from the reach of creditors. The Act explicitly excepts state institutions from this prohibition, 42 U.S.C. § 405(j)(2)(C)(iii), suggesting first that Congress did not intend money management by representative payees who are also creditors to be included in the ambit of the anti-attachment provision (otherwise the separate prohibition would be redundant), and second that it considered the balance of interests and decided — without noting special restrictions — that, despite the need to protect recipients' benefits from creditors, state institutions should be allowed to act as representative payees.
15
Tidwell announced the rule that when a state hospital, not acting as representative payee, applies the recipient's benefits to the cost of her care, that action amounts to other legal process unless the recipient gave voluntary consent to remove it from the purview of § 407. Tidwell, 677 F.2d at 568. We find, for the reasons stated above, that the state's actions in this case do not constitute "execution, levy, attachment, garnishment, or other legal process," and therefore are always outside the ambit of the anti-attachment provision. The question of whether the resident recipients must give voluntary consent, then, is beside the point. Because the state's actions do not amount to other legal process, the recipient's consent is unnecessary.
16
The rationale behind the anti-attachment provision is to "protect social security beneficiaries and their dependents from the claims of creditors." Fetterusso v. New York, 898 F.2d 322, 327 (2d Cir. 1990). We do not deny the importance and validity of such protection, even when the "creditor" is the state hospital providing care and maintenance to the recipient. See, e.g., Bennett, 485. U.S. 395; Tidwell, 677 F.2d 560. But, without straying from the goal of protecting the recipients' benefits, Congress and the Social Security Administration saw fit to allow state hospitals to act as representative payees when certain safeguards were met: the payee must use the money for the use and benefit of the recipient, which may include paying for the cost of her current care and maintenance, 20 C.F.R. § 404.2035, and the SSA must provide notice to the recipient that it intends to name a representative payee, who that payee will be, and that the recipient has the right to object to and appeal the decision. U.S. Const. amend. XIV, Tidwell, 677 F.2d at 564. The class does not contend that the above criteria are not being met. Indiana hospitals follow carefully the SSA's guidelines regarding use of recipients' benefits. They apply a portion of the money to recipients' personal needs — clothing, spending money, and the like — and only then do they apply a portion of the benefits to institutional costs. There is no evidence that the beneficiaries' moneys are left unprotected. Congress has never indicated that representative payees need to obtain beneficiaries' consent before applying their Social Security income in any given manner, so long as that application is for the use and benefit of the recipient. We will not now narrow the discretion that Congress explicitly granted representative payees to use the money "in a manner ... he or she determines, under the guidelines in this subpart, to be in the best interests of the beneficiary." 20 C.F.R. § 404.2035.
17
b. Due Process
18
The class further argues that when a state hospital, acting as representative payee, applies a recipient's Social Security benefits to the cost of her institutional care without notice or opportunity to be heard, it violates the patient's right to procedural due process under the Fourteenth Amendment. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). The relevant questions here are: 1) whether the state deprived class members of a protected property interest; and 2) if so, what process is due. See Brokaw v. Mercer County, 235 F.3d 1000, 1020 (7th Cir.2000). Although the Social Security Administration gives proper notice and opportunity to object when it appoints a representative payee, Tidwell, 677 F.2d at 564, the class contends that when the state, as payee, applies the recipient's benefits to its own costs, further notice and opportunity to object are required because a separate deprivation occurs. The SSA notice, the class claims, does not inform recipients that the payee may use the benefits to pay for the cost of their care or that they will be treated at the institution even if they do not consent to their benefits being applied to its cost. We cannot agree with this logic.
19
The notice provided by the SSA informs Social Security beneficiaries that their appointed payee will have the authority to manage their receipts so long as they do so in a manner consistent with federal law and for the use and benefit of the recipient. By accepting the appointment of a representative payee, a beneficiary, while retaining some right to her property, does not retain the right to make individual management decisions regarding her benefits unless she utilizes the SSA's appeal process. As discussed above, the state hospitals in question followed all relevant laws and regulations. We find that the state's money management decisions while serving as representative payee do not constitute an additional deprivation of a protected property interest. The threshold question is not answered in the affirmative; therefore, no due process violation has occurred.
III. Conclusion
20
For the reasons stated herein, we AFFIRM the judgment of the district court.
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415 F.2d 1288
UNITED STATES of America, Plaintiff-Appellee,v.Albert LATIMER, Defendant-Appellant.
No. 19362.
United States Court of Appeals Sixth Circuit.
September 18, 1969.
Arthur F. Raker (Court Appointed), Toledo, Ohio, for appellant.
Harry E. Pickering, Cleveland, Ohio, Bernard J. Stuplinski, U. S. Atty., John G. Mattimoe, Sp. Asst. to U. S. Atty., Toledo, Ohio, on brief, for appellee.
Before WEICK, Chief Judge, and O'SULLIVAN and PHILLIPS, Circuit Judges.
PHILLIPS, Circuit Judge.
1
Latimer was found guilty on a trial before the District Judge sitting without a jury. He was convicted on two counts of forcibly resisting and impeding with a deadly weapon FBI agents in the performance of their duties in violation of 18 U.S.C.A. § 111.1 The District Judge imposed a sentence of seven years on each count, the sentences to run concurrently.
2
This is a direct appeal from the judgment of conviction. We affirm the conviction, but vacate the sentence and remand to the District Court for resentencing.
3
The Cleveland office of the Federal Bureau of Investigation received Department of Defense Form 553 which indicated that Latimer was classified as a deserter from the United States Army. After learning his whereabouts, four FBI agents went to the apartment building where Latimer was living to arrest him for desertion. Two of the agents stationed themselves at the front and rear exits of the building and the other two agents went up the front stairs to the apartment. The agents repeatedly knocked on the door and identified themselves. Through the key hole in the door, the agents observed Latimer lying on a couch and then run out of the room after the agents had identified themselves. The agent at the rear exit of the building observed Latimer come down the rear stairs and stop at the last landing. At this time the agent confronted Latimer and identified himself and his purpose. The agent testified that Latimer had an automatic pistol in his hand and pointed it directly at him. After an exchange of a few words Latimer turned and ran back up the stairs into his apartment. Subsequently the two agents at the front of the apartment, after getting no response from their knocking, broke open the front door and located Latimer hiding in a closet. He had a loaded automatic pistol in his hand and there was testimony that the gun was pointed at one of the agents. Latimer stated to the agents: "I have a gun. Back out of here." After several minutes of this confrontation, Latimer surrendered without violence and was placed under arrest.
4
On this appeal Latimer raises three issues. First he contends that the record does not support the conviction for "forcibly" resisting and impeding the FBI agents. This contention is based primarily on the fact that no actual violence or force occurred but only the threat of Latimer to use force was present. It is argued that threat of force is insufficient to support a conviction under 18 U.S.C.A. § 111.
5
We conclude that there is sufficient evidence in the record to support the conviction. We hold that the actions of Latimer at the time of his arrest, as testified to by the agents, come within the meaning of 18 U.S.C.A. § 111 and constitute forcible resistance.
6
Next it is argued that the FBI agents violated Latimer's Fourth Amendment rights by breaking open the apartment door, searching the apartment for him and arresting him, all without either an arrest or a search warrant. We find no merit in this position. Under the provisions of 10 U.S.C. § 8082 the agents had sufficient authority to search for and arrest the defendant as a deserter from the army without an arrest warrant or a search warrant. Michael v. United States, 393 F.2d 22 (10th Cir.). The fact that he resisted his arrest with the use of a gun and was charged and convicted for this offense rather than desertion does not render his arrest illegal.
7
Finally it is contended that the District Court abused its discretion in sentencing Latimer to seven years on each count. The sentencing of one convicted of a crime is largely dependent on matters which are within the knowledge, experience and judgment of the sentencing court. For this reason the District Courts are given broad discretion in assessing punishment within the limits of the various federal statutes. On appeal this Court will not disturb that sentence unless there has been a gross abuse of discretion. Livers v. United States, 185 F.2d 807 (6th Cir.). We do not hold this to be an improper sentence.
8
However, on the last page of the Government's brief filed in this Court is found this sentence:
9
"Finally, in an attempt to stay within the record, we would suggest that if this Court is disturbed by the sentence, that it ask Judge Kloeb to make a record of his knowledge as to tests performed on the bullet found in this gun. The result indicating whether or not the pistol had been discharged with a misfire would be interesting."
10
We are disturbed by this statement. There is no evidence in the record to clarify this comment of Government counsel. We have no way of knowing whether there was a misfire, and, if so, how much consideration, if any, the District Court placed on such information in determining the sentence.
11
Under Rule 32(c) Fed.R.Crim.P. the District Court has available to it information in the presentence report which is helpful in assessing the punishment to be given a defendent. The decision to disclose the information in this report to the defendant or his counsel and to give them an opportunity to comment on it is left to the discretion of the District Court. Rule 32(c) (2), Fed. R.Crim.P.; Thompson v. United States, 381 F.2d 664 (10th Cir.). See also United States v. Trice, 412 F.2d 209 (6th Cir).
12
Under the facts of this case any information which may have come to the District Court concerning the presence of a misfired cartridge found in Latimer's pistol creates a different problem. Assuming that Latimer pulled the trigger of the loaded pistol while pointing it at the FBI agent and the bullet misfired, this would constitute a different and more serious crime than that with which he was charged. If the Government had any such information, the time and place to present it was in open court during the course of the trial. To disclose it to the sentencing court ex parte after the judgment of conviction gives rise to the possibility that the District Court may have sentenced Latimer for a more serious offense than the one for which he was convicted and that defense counsel was given no opportunity to rebut it. There is no way for this Court to ascertain whether the District Court had any such information, and, if so, whether it was used in determining the length of the sentence. In view of this circumstance this Court has no alternative except to vacate the sentence and remand for resentencing.
13
The case is remanded with instructions that in resentencing Latimer the District Court not consider in any way any information regarding the presence of a misfired cartridge found in Latimer's pistol at the time of his arrest. In order to clarify any doubt that may exist in this connection, the District Judge is directed to file a statement of his reasons for imposing the sentence which he will give on remand.
14
Vacated and remanded.
Notes:
1
Assaulting, resisting, or impeding certain officers or employees
"Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.
"Whoever, in the commission of any such acts uses a deadly or dangerous weapon, shall be fined not more than $10,000 or imprisoned not more than ten years, or both."
2
"Apprehension of deserters
"Any civil officer having authority to apprehend offenders under the laws of the United States or of a State, Territory, Commonwealth, or possession, or the District of Columbia may summarily apprehend a deserter from the armed forces and deliver him into the custody of those forces."
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887 F.2d 1091
U.S.v.Fontanez*
NO. 88-6013
United States Court of Appeals,Eleventh Circuit.
SEP 18, 1989
1
Appeal From: S.D.Fla.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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AUUTXN. TEUAU 78711
I:MAwPoRD c. MARTlN
ATTaD)HNlcYGECNRRAI. December 27, 1972
Honorable B, R. Fuller Opinion No, M-1285
Acting Executive Director
Texas Department of Community Re: Questions concerning
Affairs the relationship be-
P. 0. Box 13166, Capitol Station tween the Building
Austin, Texas Materials and Systems
Testing Laboratory
and the Texas Depart-
ment of Community
Dear Mr. Fuller: Affairs.
In your recent request you state that certain questions have
arisen concerning the relationship between the Texas Department
of Community Affairs, Article 4413(201), Vernon's Civil Statutes,
and the Building Materials and Systems Testing Laboratory,
Article 4413(39), Vernon's Civil Statutes.
In this connection you request our opinion on four specific
questions:
(1) In Section 5(d) of Article 4413(39), was
it the intent of the Legislature to make the
Building Materials and Systems Testing Laboratory
subject to the policies, controls and direct:,on of
the Texas Department of Community Affairs, the
successor agency to the Division of State-Local
Relations of the Governor's Office?
Our answer i,s "yes". Section 2(4) of Article 4413(39) defines
the "Department" as "the Division of State-Local Relations, Office
of the Governor or any successor agency to that Division", The,re-
fore, under Section 5(d) of Article 4413(39), the B.uilding
Materials and Systems Testing Laboratory, through ,their Techn:icai
Testing and Evaluation Council, is subject to the policies, controls
-6304-
Honorable B. R. Fuller, page 2 (M-1285)
and direction of the Department of Community Affairs, the suc-
cessor agency.
(2) If the Laboratory is assigned to the
Texas Department of Community Affairs, can the
executive director of the Department authorize
the Comptroller's Office to issue warrants
against department funds for the laboratory?
Our answer is "yes". Article 4413(201), Section 5(4) and
Section 13 authorize the executive director of the Department to
"administer all moneys entrusted to the department" and I'. _. .
expend for its purposes any appropriations or grants from the
State of Texas, the federal government, or any other source . . ."
This is express authority to the Department, through its
executive director, to use department funds for laboratory pur-
poses D
(3) In Section 6(b) of Article 4413(39), mention
is made of "included upon any list of testing labora-
tories formulated by the board". In this instance,
does "board", which is not defined by Article 4413(39),
refer to the Council or the Department?
Our opinion is that "board" refers jointly to the Department
and the Council. The term "board" is not defined by the Act and
the quoted sentence in Section 6(b) is the only place in the
Act that this term is used. We must ascertain the intent of the
Legislature in using the term. By the established rules of
statutory construction we must look to the context in which the
term is used and the intention and purpose as manifested in the
Act as a whole. In Section 6(a) the overall standards for testing
and evaluation are "adopted or promulgated by the council and
approved by the department," This method is in essence a joint
function of the Council and Department as a "board". Using thhi.s
sense of the term then in Section 6(b) the adoption of a list of
acceptable testing laboratories would be formulated by recommenda-
tion of the Council with approval of the department as the "board".
-6305-
Honorable B. R. Fuller, page 3 (M-1285)
(4) Section 7(b) of Article 4413(39) states that
"All fees shall be paid to the laboratory and deposited
for the use of the laboratory in the administration
and enforcement of this Act." Does this restrict the
payment of all administrative charges to those funds
established in the State Treasury by the payment of
fees? Or is it possible for the Texas Department
of Community Affairs to pay necessary administrative
charges during the start-up phase of the laboratory
from funds budgeted for that purpose within the
Department's regular appropriations?
Sections '7(a) and (b) of Article 4413(39) prescribe the
authority and purpose of the establishment and collection of
laboratory fees, 'I...to pay the costs incurred in the administra-
tion and implementation of this Act." These fees should be used
first to pay the necessary administrative costs in providing the
testing and evaluation services, then any additional funds avail-
able to the Texas Department of Community Affairs may be used to
pay for the administration and implementation of Article 4413(39)
under authority of Sections 5(4) and 13 of Article 4413(201),
The Comptroller is authorized to issue warrants out of appropriated
funds for such purposes.
SUMMARY
The Texas Department of Community
Affairs is the "department" charged with
setting policies, controls and direction
for the Technical Testing and Evaluation
Council of the "Laboratory" established by
Article 4413(39), Vernon's Civil Statutes.
The term "board" in Section 6(b) of
Article 4413(39) means the Council and De-
partment acting together. The "Department"
as defined in Article 4413(39), Section 2(4),
-6306-
. -
Honorable B. R. Fuller, page 4 (M-1285)
through its executive director, has authority
to pay administrative expenses of the Labora-
tory by requesting the Comptroller to issue
warrants out of appropriated funds for such
purposes.
Prepared by Harry C. Green
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
W. E. Allen, Chairman
Sig Aronson
Bob Lattimore
Bill Flanary
John Banks
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
-6307-
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686 So.2d 1171 (1996)
UNITED COMPANIES LENDING CORPORATION
v.
Michael McGEHEE, et al.
1941234.
Supreme Court of Alabama.
October 11, 1996.
Rehearing Denied December 6, 1996.
*1172 M. Christian King of Lightfoot, Franklin & White, L.L.C., Birmingham, John N. Leach, Jr. of Helmsing, Lyons, Sims & Leach, P.C., Mobile, for Appellant.
Royce A. Ray III and George W. Finkbohner III of Finkbohner & Lawler, L.L.C., Mobile, for Appellees.
Robert E. Sasser, Dorothy W. Littleton and Michael B. O'Connor of Sasser & Littleton, P.C., Montgomery, for Amicus Curiae Mortgage Bankers Association of Alabama, Inc.
Bruce J. Downey III of Capell, Howard, Knabe & Cobbs, Montgomery, for Amicus Curiae Southern Community Bankers.
Palmer C. Hamilton, George A. LeMaistre, Jr. and A. Carson I. Nicolson of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for Amicus Curiae Federal National Mortgage Association.
H. Hampton Boles and Michael L. Edwards of Balch & Bingham, Birmingham, for Amicus Curiae Alabama Bankers Association.
Scott Corscadden, Deputy Atty. Gen., for Amicus Curiae Alabama State Banking Department.
Leah O. Taylor of Taylor & Taylor, Birmingham, for Amicus Curiae Alabama Trial Lawyers Association, in support of Appellees.
On Application for Rehearing
PER CURIAM.
The opinion of March 22, 1996, is withdrawn, and the following opinion is substituted.
Pursuant to Rule 5, Ala. R.App. P., this Court granted defendant United Companies Lending Corporation ("UCLC") permission to appeal from an interlocutory order denying its motion for a summary judgment and entering a partial summary judgment for the plaintiffs, Michael and Joyce McGehee. By entering the partial summary judgment, the circuit court disallowed UCLC'S defense by which it seeks to establish that § 5-19-31(a), Ala.Code 1975, exempts it from the consumer protection provisions known as the Mini-Code, § 5-19-1 to -31, Ala.Code 1975in particular, the 5% limit on discount points imposed by § 5-19-4(g). The issue, as narrowed on rehearing, is whether a mortgagee that is not approved to make National Housing Act loans in Alabama comes within the provision of § 5-19-31(a) that "The provisions of this chapter ... shall not apply to any loan ... involving an interest in real property ... where the creditor is a lending institution which is an approved mortgagee under the provisions of the National Housing Act."[1]
In June 1991, UCLC made a loan to the McGehees and took a mortgage on their home as security. The McGehees borrowed $31,827.76; in determining the amount the McGehees were to repay, UCLC added to that amount $2,972.24 in prepaid finance charges. Of the prepaid finance charges, $2,779.24 was imposed as a "loan fee," which is a nonrefundable mortgage origination fee within the meaning of "points" as that term is used in § 5-19-4(g), see Smith v. First Family Financial Services, Inc., 626 So.2d *1173 1266 (Ala.1993). This amount of points is approximately 8% of the amount financed.[2]
Section 5-19-4(g) provides:
"Notwithstanding the provisions of this or any other section of this chapter, a creditor may, pursuant to contract, in a consumer loan or consumer credit sale secured by an interest in real property, charge and collect points in an amount not to exceed five percent of the original principal balance in the case of a closed-end loan or credit sale, or five percent of the total line of credit in the case of an open-end credit plan. Points may be paid in cash at the time of the loan or credit sale, or may be deducted from the proceeds and included in the original principal balance. Points shall be in addition to all other charges and are fully earned on the date of the loan or credit sale and may be excluded from the finance charge for the purpose of computing the finance charge refund."
(Emphasis added.)
Section 5-19-31(a) provides:
"The provisions of this chapter, except the provisions of subdivision (1) of Section 5-19-1 and Section 5-19-3, shall not apply to any loan, forbearance, credit sale, lease, or other transaction involving an interest in real property or the sale, lease, or mortgage of an interest in real property, where the creditor is a lending institution which is an approved mortgagee under the provisions of the National Housing Act or is exempt from licensing under this chapter, or to any other loan, forbearance, credit sale, lease, or other transaction that is not a consumer transaction or to any transaction by a trust institution as defined in Section 5-12A-1(1), in its capacity as a fiduciary under any plan or agreement qualified under 26 USC 401(a) or defined by 5 USC 8437, 26 USC 403(b) or 26 USC 457 or a trust exempt under 26 USC 501."
(Emphasis added.)[3]
The McGehees filed an action against UCLC alleging, in pertinent part:
"54. On or around June 21, 1991, the Defendants falsely represented to Plaintiffs that Defendant United Companies Lending Corporation is an approved mortgagee under the National Housing Act and further that Defendant UCLC is not governed by the provisions of Alabama's consumer protection law, Alabama Code § 5-19-1 et seq., commonly known as the `Mini-Code.' Said representations were false, and at the time of the McGehee loan transaction Defendants knew that they were false and made them with the purpose of deceiving Plaintiffs and inducing Plaintiffs into entering into an unlawful loan transaction. The McGehee transaction was not made pursuant to the National Housing Act and was and is not a National Housing Act loan. On June 21, 1991, the date of the McGehee loan transaction made the basis of this lawsuit, Defendant United Companies Lending Corporation was not an approved mortgagee under the terms of the National Housing Act, and Defendants knew that Defendant UCLC's branch office at 857-A Downtowner Boulevard, Mobile, Alabama 36609, was not an approved branch under the National Housing Act. Many months prior to June 21, 1991, the date of the loan transaction made the basis of this lawsuit, Defendants ceased making any National Housing Act loans, and were not making any National Housing Act loans in Alabama or elsewhere at any time material to the instant action. Defendants never applied for nor received National Housing Act Mortgagee approval status for Defendant UCLC's branch office located at 857-A Downtowner Boulevard, Mobile, Alabama, 36609.
*1174 "55. Defendants also falsely represented to Plaintiffs in the McGehee transaction that Defendant UCLC could lawfully charge points in excess of 5% of the original principal balance of the McGehee loan. Defendants further falsely represented to Plaintiffs during the loan closing on June 21, 1991 that everything regarding the McGehee transaction would be `okay.' Said representations of material facts regarding the McGehee loan transaction were false and Defendants knew that they were false at the time of the McGehee transaction, and Plaintiffs justifiably relied upon said misrepresentations in entering into the loan made the basis of this lawsuit.
"56. Defendants intentionally concealed material facts from Plaintiffs about the McGehee loan transaction which Defendants had a duty to disclose to Plaintiffs. Specifically, Defendants failed to tell Plaintiffs that Defendant UCLC was in fact not an approved mortgagee under the National Housing Act, that Plaintiffs were and are in fact entitled to the protection of Alabama's consumer protection law known as the `Mini-Code', and further that Defendant UCLC had no right to charge and/or collect `points' from Plaintiffs in an amount in excess of 5% of the original principal balance of the McGehee loan.
"57. The aforesaid actions by Defendants constitute conscious and deliberate oppression, fraud, wantonness, and/or malice perpetrated upon the Plaintiffs. Neither of the Plaintiffs knew or through reasonable diligence could have known of the fraudulent, unlawful and wrongful conduct and activities perpetrated upon them described herein until Plaintiffs were informed of said wrongful conduct of Defendants herein on or around the latter part of August or the first part of September, 1993 by the undersigned counsel for the Plaintiffs. Plaintiffs are uneducated, unsophisticated, do not have high school diplomas, and did not realize until late August or September of 1993 that the loan made the basis of the McGehee transaction violated Alabama Code § 5-19-4(g). Defendants misled Plaintiffs and concealed the fraud and other wrongful conduct perpetrated upon Plaintiffs described herein by forcing Plaintiffs to sign the piece of paper attached hereto as Exhibit D entitled `Acknowledgement by Applicant for Real Estate Loan.' Defendants falsely represented to Plaintiffs in Exhibit D that Defendant UCLC is not governed by Alabama Code § 5-19-4(g) to keep Plaintiffs from discovering the fraud and other wrongs perpetrated upon them."
UCLC raised as a defense and as a ground for summary judgment the exemption stated in § 5-19-31(a). The McGehees responded with a motion for summary judgment in their favor as to UCLC's exemption defense. The circuit court denied UCLC's motion and granted the McGehees' motion. This Court allowed an appeal pursuant to Rule 5, Ala. R.App. P.
The Department of Housing and Urban Development ("HUD") has promulgated regulations to effectuate the provisions of the National Housing Act ("NHA"). See 24 C.F.R. Part 202 (1994); Part 202 consists of §§ 202.1 through 202.20. Section 202.11(a) reads, in pertinent part:
"(a) Approval. (1) A mortgagee may be approved for participation in the mortgage insurance programs authorized by the National Housing Act ... upon filing a request for approval on a form prescribed by the Secretary and signed by the applicant.... Approval of the application by the Secretary shall constitute:
"(i) The Secretary's agreement that the mortgagee shall be considered an approved mortgagee except as otherwise ordered by the Mortgagee Review Board, or an officer or subdivision of the Department of Housing and Urban Development to which the Mortgagee Review Board has delegated its power, unless the mortgagee voluntarily relinquishes its approval;
"(ii) The mortgagee's agreement to comply at all times with the General approval requirements of § 202.12, and the special requirements for the class of mortgagee, at §§ 202.13, 202.14, 202.15, 202.16, or 202.17, for which it was approved; and
"(iii) An origination approval agreement under which approval to originate mortgages for insurance may be terminated as *1175 provided in paragraph (d) of this section....
". . . .
"(4) Approval of mortgagees may be restricted to geographic areas designated by the Secretary or may be approved to operate on a nationwide basis."
(Emphasis added.)[4]
UCLC was approved on October 3, 1990, as a "nonsupervised mortgagee" (§ 202.14) for 1-4 family residences. The approval by HUD includes this restriction: "This approval covers the HUD Field Office Jurisdiction of New Orleans, Louisiana."
Under the HUD regulations, a mortgagee approved for a limited geographic area may originate NHA-insured mortgage loans from outside its approved area only by establishing branch offices that are themselves approved to submit applications for NHA insurance from the region in which the branch office is located:
"(m) Branch offices. [An approved mortgagee] may, only upon approval by the Secretary, maintain branch offices for the submission of applications for mortgage insurance. The mortgagee shall remain fully responsible to the Secretary for the actions of its branch offices."
24 C.F.R. § 202.12(m).[5]
The Mortgagee Approval Handbook published by HUD[6] reiterates these requirements for approval of branch offices in each jurisdiction in which the mortgagee wishes to originate NHA- or HUD-insured loans. Chapter 2 gives the "Mortgagee Approval Requirements," and division 2-1 gives the "General Approval Requirements," including paragraph h, which reads in pertinent part as follows:
"Extraterritorial Authority: [An approved mortgagee may] Participate in geographic areas that are approved by HUD.
"(1) Main offices may participate in the jurisdiction of the local HUD Field Office where they are located.
"(2) Branch offices may participate in the jurisdiction of the local HUD Field Office where they are located.
"(3) Mortgagees wishing to do business in HUD Field Office jurisdictions other than the HUD Field Office jurisdiction where the approved main office or branch offices are located must request such permission by completing form HUD-92001K, Notification of Mortgagee Change.
"(a) This permission to do business is limited to HUD Field Office jurisdictions in states contiguous to the state in which the approved main or branch offices are located; and in the case of servicing, only to the extent that they are within 200 miles of the mortgaged property to be serviced or they provide toll-free or accept collect calls on servicing questions."
(Emphasis added.)
UCLC acknowledges that it has no approved Alabama branch office. There is no evidence that UCLC had sought permission under the Handbook's provision 2-1(h)(3)(a) to do NHA-related business outside Louisiana, and, even if it had, Alabama is not contiguous to Louisiana.
The only legislative purpose for exemption from the Mini-Code of mortgage loans by NHA-approved mortgagees that presents itself *1176 to us is the fact that HUD extensively regulates its approved mortgagees. However, the Mortgagee Approval Handbook lists extensive requirements for approved main and branch offices: yearly verification reports; experience and qualifications of employees, including branch office managers; staffing and facilities requirements; communications capability and responsibility; restrictions on escrow accounts; responsibility for originating and servicing mortgages in accordance with HUD requirements; and net worth requirements. Because UCLC's Mobile office is not an approved branch office, however, these requirements do not apply to that office, and they do not apply to any other offices it has in Alabama.
The McGehees' mortgage loan from UCLC is not an NHA-insured mortgage loan. Thus, the provisions of the NHA do not apply to their loan.
UCLC argues that its mortgagors in Alabama, including the McGehees, are protected by Federal laws, notably the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2601 et seq., and the Truth-In-Lending Act, 15 U.S.C. § 1601 et seq., so that the McGehees, UCLC says, are not left unprotected if UCLC is exempt from the Mini-Code. However, those Federal acts apply more broadly than to NHA-approved mortgagees, so the application of those acts is not a basis for exempting NHA-approved mortgagees from the protections given by the Mini-Code. Moreover, those Federal acts simply require disclosure and a three-day right of rescission; they do not set any limits on finance charges in general or points in particular.
For a discussion of the inadequacy of these disclosure and rescission requirements in protecting disadvantaged borrowers from predatory lending practices, including high discount points, see the testimony developed at a February 4, 1993, hearing before the House Subcommittee on Consumer Credit and Insurance. "Adding Injury to Injury: Credit on the Fringe." Hearing before the Subcommittee on Consumer Credit and Insurance of the Committee on Banking, Finance, and Urban Affairs, House of Representatives, Feb. 4, 1993, Serial No. 103-3. Witnesses and several members of the subcommittee expressed opinions that disclosure and rights of rescission do not provide enough protection, because many mortgages other than purchase-money mortgages do not require disclosure of annual percentage rates; because victims of targeted predatory practices are often working people who are less educated and less sophisticated about reading such instruments; and because the lenders start with small percentages of a homeowner's equity and later renew the loan, capitalizing accrued interest and thereby increasing the balance and the payment beyond the mortgagor's ability to pay.
The description of predatory practices was summarized by Steven D. Caley of the Atlanta Legal Aid Society, Inc., whose prepared testimony includes the following:
"Four principal conditions have combined to encourage unscrupulous lenders to defraud or mislead homeowners, particularly elderly, low income and unsophisticated homeowners who typically reside in redlined areas of their communities. The numerous schemes and devices utilized by these companies have been developed with the specific intent of ensnaring unsuspecting homeowners into signing loan papers with egregiously high interest rates, discount points, and other charges that the homeowners can never hope to repay so that the lenders can ultimately obtain the equity in the home through foreclosure proceedings. The four principal conditions follow.
"First, the homes have high equity. Homeowners have acquired high equity in their homes either through appreciation, which has occurred at an extraordinarily high rate in the last 10 years (particularly in the sunbelt area), or by simply paying most or all of the mortgage on the home.
"Second, many states deregulated usury limits on mortgages in the early 1980s in response to skyrocketing interest rates of the late 1970s. Many states have no interest limits at all and many who do, have extremely high limits such as Georgia which has a five percent per month or sixty percent limit per year. Additionally many states do not regulate mortgage *1177 lenders, mortgage brokers or home improvement companies who are often part of the schemes which will be described below.
"Third, banks have redlined significant portions of their communities. When consumers no longer have access to conventional lenders for loans at reasonable rates of interest, they have no one else to turn to but the high rate lenders.
"Fourth, in some states such as Georgia, foreclosures are not supervised in any manner whatsoever. Georgia has no requirement that courts oversee foreclosures before, during, or after the sale in order to protect the homeowners' interest.
"In sum, homeowners with high equity values in their homes are the target of unscrupulous lenders who can charge any rate of interest they want to charge to homeowners who do not have access to credit from conventional lenders. These unprincipled lenders have basically placed themselves in a win-win situation. If the homeowner pays the outrageous amounts, the lender reaps an enormous profit. If the homeowner is unable to pay, the lender forecloses and gets the house with equity typically in the tens of thousands of dollars.
"The above conditions have led to many abuses. The primary abuse has been the aggressive marketing of high interest, high prepaid finance charge mortgage loans to tens of thousands of low and moderate income homeowners who are mostly minority, elderly citizens. This practice has continued unabated for at least ten years. The loans typically carry prepaid finance charges ranging from 10 to 35 points and annual interest rates of 18% to 29%. Many of the companies engaging in these practices employ fraud, deception, falsified applications and forged deeds. The mortgages also often contain atrociously high brokers fees,[[7]] padded closing costs, balloon payments which trigger foreclosures, and high prepayment penalties which make refinancing difficult, if not impossible. All too often, foreclosure is the end result. Indeed entities such as Fleet Finance, Inc. have exceedingly high foreclosure rates (at least 10 times higher than the national average). It is thus clear that these lenders focus on the equity in the house, not the ability of the homeowner to repay the loan. Not only do families lose their homes which often represent a lifetime investment, but neighborhoods are destabilized, leading to drugs and crime."
Hearing, op. cit., pp. 66-68.
The discount points and the conduct alleged against UCLC do not rise to the level described in this testimony, but the testimony serves to show the danger of allowing mortgage lenders that are not regulated except by the disclosure and rescission requirements of the Truth-In-Lending Act and RESPA to charge interest rates and discount points with no caps. Because UCLC's Alabama offices are not approved by HUD, they are not regulated by HUD. This fact supports a construction that only mortgagees whose offices in Alabama are approved by HUD are exempted by § 5-19-31 from the provisions of the Mini-Code. Such a construction would allow the points cap of § 5-19-4(g) to apply to such unregulated mortgagees and would provide at least that much protection to mortgagors taking loans from such mortgagees.
As to a broad category of "federally related mortgage loans," see 12 U.S.C. § 1735f-5(b),[8] Congress has enacted as part of the Depository Institutions Deregulation Monetary Control Act (DIDMCA), P.L. 96-221, Mar. 31, 1980, 94 Stat. 132, provisions limiting the application of state usury laws. Id., Title V, § 501, codified at 12 U.S.C. § 1735f-7a (1988). Section 1735f-7a(b)(4), however, *1178 allows states, after March 31, 1980, to limit discount points on federally related mortgage loans.[9]
Section 5-19-4(g) of the Alabama Code was enacted in 1988 and therefore qualifies as an overriding exception to DIDMCA's preemption of state usury laws in regard to federally related mortgage loans. The United States District Court for the Southern District of Alabama has so held, rejecting a claim by this same lender, UCLC, that the points cap of § 5-19-4(g) cannot apply to its mortgage loans because that cap is preempted by DIDMCA. Autrey v. United Companies Lending Corp., 872 F.Supp. 925 (S.D.Ala.1995). The court assumed, without deciding, that UCLC's loan to Autrey was "federally related" and held: "Because [DIDMCA] does not completely pre-empt Plaintiffs' Mini Code claims, which this Court so finds since § 5-19-4(g) qualifies under DIDMCA's [§ 1735f-7a](b)(4) override exception, remand is appropriate." 872 F.Supp. at 928 (emphasis added). Because Congress broadly allowed states to override its preemption of state usury laws as to discount points, we see no reason to limit the override enacted by our legislature in 1988 and codified at § 5-19-4(g).
Thus, we see no rational basis for extending to UCLC's offices in Alabama, which are not approved or regulated branch offices under the NHA approval procedures, the exemption by § 5-19-31(a) of mortgage loans made by NHA-approved mortgagees. There are overwhelming reasons, as described above, for construing that exemption not to apply to branch offices that are not approved to make NHA-insured loans.
The Mini-Code was enacted for consumer protection and so should be construed to effectuate that purpose, see, e.g., Jackson v. CIT Group/Sales Financing, Inc., 630 So.2d 368 (Ala.1993); Spears v. Colonial Bank of Alabama, 514 So.2d 814 (Ala.1987); Edwards v. Alabama Farm Bureau Mut. Cas. Ins. Co., 509 So.2d 232 (Ala.Civ.App. 1986), cert. quashed, 509 So.2d 241 (Ala. 1987); Derico v. Duncan, 410 So.2d 27 (Ala. 1982).
Because the Mini-Code was intended to provide protection to the public by regulating creditors, it should be construed so as to effectuate that public protection. "Statutes intended for the public benefit are to be construed most favorably to the public." St. Paul Fire & Marine Ins. Co. v. Elliott, 545 So.2d 760, 762 (Ala.1989); First Alabama Bank of Dothan v. Renfro, 452 So.2d 464, 467 (Ala.1984); Gant v. Warr, 286 Ala. 387, 391, 240 So.2d 353, 355 (1970); Employers Ins. Co. v. Johnston, 238 Ala. 26, 32, 189 So. 58, 63 (1939).
Furthermore, § 5-19-31(a) provides an exemption from the provisions of the Mini-Code and so should be construed strictly against the party seeking the exemption. Exceptions or provisos, which restrict the operation of a statute, "should be strictly construed, and ... only those subjects expressly restricted should be freed from the operation of the statute," Pace v. Armstrong World Industries, Inc., 578 So.2d 281, 284 (Ala.1991).
These principles favor extending the protection of § 5-19-4(g) to an Alabama mortgagor whose Alabama mortgagee is not regulated under the NHA approval procedures and limiting the exemption in § 5-19-31(a) to mortgagees approved to make NHA loans in Alabama.[10]
*1179 UCLC concedes that it is not approved to make NHA loans in Alabama and that the McGehees' loan is not an NHA-insured loan. Its Mobile, Alabama, office, from which the McGehees' loan originated, is not an NHA-approved branch office, and UCLC does not have a branch office that is approved to make NHA loans in Alabama. We hold, therefore, that UCLC is not "a lending institution which is an approved mortgagee under the provisions of the National Housing Act" for purposes of the exemption provided by § 5-19-31(a), because, as to its operations in Alabama to which the Mini-Code might apply, UCLC is not such an "approved mortgagee." Thus, UCLC is not exempt from the provisions of the Mini-Code and § 5-19-4(g) applies to UCLC's loan to the McGehees. The circuit court correctly entered the partial summary judgment for the McGehees, correctly holding that UCLC is subject to the points cap of § 5-19-4(g), and it correctly denied UCLC's motion for summary judgment on the McGehees' complaint alleging that their loan violates § 5-19-4(g), which allows a creditor to "charge and collect points in an amount not to exceed five percent of the original principal balance."
APPLICATION GRANTED; OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
ALMON, SHORES, KENNEDY, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX and HOUSTON, JJ., dissent.
HOUSTON, Justice (dissenting).
The sole issue raised by the McGehees on their application for rehearing is whether the trial court erred in rejecting an alternative argument allegedly made by them, which they argue supported the partial summary judgment entered for them as to the applicability of the Ala.Code 1975, § 5-19-31(a), exemption; we had reversed that partial summary judgment in our original opinion.[11] The McGehees argue that the trial court properly held that United Companies Lending Corporation (UCLC) was not entitled to a § 5-19-31(a) exemption, because they assert that their rejected alternative argument supports the partial summary judgment. The McGehees argue that the trial court erred in holding that UCLC was "an approved mortgagee under the provisions of the National Housing Act."[12] They concede that UCLC had received approval from the Secretary of Housing and Urban Development to underwrite federally insured loans out of its Baton Rouge, Louisiana, main office, but argue that, because UCLC did not obtain "branch office" approval for its Mobile, Alabama, office from the Mobile field office of the Department of Housing and Urban Development (hereinafter referred to as "HUD"), UCLC is not actually an NHA-approved mortgagee for purposes of § 5-19-31(a).[13] In order to resolve the issue raised by the McGeheeswhether HUD approval to make federally insured loans in Alabama is a prerequisite to obtaining a § 5-19-31(a) exemptionthis Court should have looked to federal law, which clearly establishes that UCLC is a HUD-approved mortgagee regardless of whether it seeks "branch approval" for any of its local offices. Because the majority did not, I must respectfully dissent.
Federal law gives the Secretary of Housing and Urban Development the authority to promulgate regulations governing the approval of lending institutions for participation *1180 as mortgagees in federal mortgage insurance programs:
"The Secretary [of Housing and Urban Development] is authorized, upon application by the mortgagee, to insure as hereinafter provided any mortgage offered to him which is eligible for insurance as hereinafter provided, and, upon such terms as the Secretary may prescribe, to make commitments for the insuring of such mortgages prior to the date of their execution or disbursement thereon."
12 U.S.C. § 1709(a). (Emphasis added.) Furthermore, 12 U.S.C. § 1709(b)(1) states:
"To be eligible for insurance ... a mortgage shall
"(1) Have been made to, and be held by, a mortgagee approved by the Secretary as responsible and able to service the mortgage properly."
In order to fulfill the mandate of § 1709(a) that the Secretary of Housing and Urban Development prescribe terms for "mak[ing prior] commitments for the insuring of ... mortgages," HUD has promulgated regulations setting out the criteria of a federally insurable mortgage and the requirements for being "a mortgagee approved by the Secretary" under 12 U.S.C. § 1709(b)(1).
The regulations pertinent to the issue before uswhether UCLC was "a mortgagee approved by the Secretary," 12 U.S.C. § 1709(b)(1), when it made the McGehee loanare contained in subpart B of part 202 of title 24 of the Code of Federal Regulations. The first pertinent provision is 24 C.F.R. § 202.11(a), which states:
"(a) Approval. (1) A mortgagee may be approved for participation in the mortgage insurance programs authorized by the National Housing Act, except Title I of the Act, upon filing a request for approval on a form prescribed by the Secretary and signed by the applicant. The approval form shall be accompanied by such documentation as may be prescribed by the Secretary to support the request for approval."
The McGehees do not dispute the fact that UCLC filed an application and the necessary accompanying documents, as required by § 202.11(a) before making the McGehee loan.
The additional requirements for being an approved mortgagee for participation in federally insured loan programs are contained in 24 C.F.R. § 202.12:
"To be approved for participation in the mortgage insurance programs authorized by the National Housing Act, except Title I of the Act, and to maintain approval, a mortgagee shall meet the general requirements of this section ... and the specific requirements of § 202.13 through § 202.19, as appropriate.
"(a) Business form. It shall be a corporation or other chartered institution, a permanent organization having succession or a partnership....
". . . .
"(b) Employees. It shall employ competent personnel ... and adequate staff and facilities to originate and service mortgages in accordance with applicable regulations, to the extent the mortgagee engages in such activities.
"(c) Officers. All employees who will sign applications for mortgage insurance on behalf of the mortgagee shall be corporate officers or shall otherwise be authorized to bind the mortgagee....
"(d) Escrows. It shall not use escrow funds for any purpose other than that for which they were received....
"(e) Related laws. It shall comply with the provisions of the Fair Housing Act, Executive Order 11063, Equal Credit Opportunity Act, the Real Estate Settlement Procedures Act of 1974, and all other Federal laws relating to the lending or investing of funds in real estate mortgages.
"(f) Servicing. It shall comply with the servicing responsibilities contained in subpart C of part 203 and in part 207, and with all other applicable regulations....
"(g) Business changes. It shall provide prompt notification ... of all changes in its legal structure....
"(h) Reports. It shall file the following reports, records and documentation:
". . . .
*1181 "(i) Financial statements. It shall, upon request by the Secretary, submit a copy of its latest financial statement, submit such information as the Secretary may request, and submit to an examination of that portion of its records which relates to its insured mortgage activities.
"(j) Quality control plan. It shall implement a written Quality Control Plan ... that assures compliance with the regulations and other issuances of the Secretary....
"(k) Fees. A mortgagee ... shall pay an application fee and annual fees....
"(l) Ineligibility.... [N]either the applicant mortgagee nor any officer, partner, director, principal or employee of the applicant mortgagee shall:
"(1) Be suspended, debarred or otherwise restricted under ... this title, or under similar procedures of any other Federal agency;
"(2) Be indicted for, or have been convicted of, an offense which reflects upon the responsibility, integrity or ability of the mortgagee to be an approved mortgagee;
"(3) Be subject to unresolved findings...; or
"(4) Be engaged in business practices that do not conform to generally accepted practices of prudent mortgagees or that demonstrate irresponsibility.
"(m) Branch offices. It may, only upon approval of the Secretary, maintain branch offices for the submission of applications for mortgage insurance. The mortgagee shall remain fully responsible to the Secretary for the actions of its branch offices.
"(n) Net worth. It shall have and maintain a net worth, in assets acceptable to the Secretary, of the following amounts.
"[The listing of amounts is omitted.]
"(o) Effective date [of the net worth provisions].
"(p) Conflict of interest.... The mortgagee shall not pay a referral fee to any person or organization.
"(q) Liquid assets. It shall maintain liquid assets consisting of cash or its equivalent acceptable to the Secretary in the amount of 20 percent of its net worth, up to a maximum liquidity requirement of $100,000.
"(r) Fidelity bond. ... [T]he mortgagee shall maintain fidelity bond coverage and errors and omissions insurance acceptable to the Secretary and in an amount required by the Secretary...."
Last, because UCLC falls within the § 202.14(a) definition of a "nonsupervised mortgagee," UCLC must, in addition to complying with the above regulations, also comply with additional, more specific rules contained in § 202.14(c) as to the maintenance of warehouse lines of credit and the filing of audit reports.[14]
The McGehees contend that UCLC failed to comply with § 202.12(m) and, therefore, was not "an approved mortgagee under the provisions of the National Housing Act" when it made its loan to them. That subsection states:
"(m) Branch offices. It may, only upon approval of the Secretary, maintain branch offices for the submission of applications for mortgage insurance...."
*1182 The McGehees argue that UCLC's Mobile office was a "branch office" that must have been registered with the HUD field office in Mobile in order to comply with § 202.12. I cannot agree with their contention though, because the plain language of subsection (m) does not require the approval of any lending institution office that does not "submi[t] ... applications [to HUD] for mortgage insurance." It is undisputed that UCLC has never made or underwritten a single federally insured loan out of its Mobile office. Furthermore, subsection (m) is written in permissive language ("may ... maintain [approved] branch offices"). It does not require that UCLC or any other NHA-approved mortgagee open "branch offices" at all.[15]
In the alternative, the McGehees argue that we should construe § 5-19-31(a) to require more than 24 C.F.R. §§ 202.11 and 202.12 require to be an NHA-approved mortgagee. Their argument for the judicial imposition of an additional Alabama approval requirement on mortgagees seeking a § 5-19-31(a) exemption is very similar to the McGehees' argument that we rejected in our original opinionthat this Court should, for the same policy reasons, construe the § 5-19-31(a) exemption to apply only in instances where an NHA-approved mortgagee is actually making a federally insured mortgage. The majority seems to base its opinion on rehearing on the same sort of policy argument:
"Thus, we see no rational basis for extending to UCLC's offices in Alabama, which are not approved or regulated branch offices under the NHA approval procedures, the exemption by § 5-19-31(a) of mortgage loans made by NHA-approved mortgagees."
686 So.2d at 1178. See also note 3. The problem with the reasoning underlying the McGehees' argument and the majority's opinion is that it fails to acknowledge that Alabama courts cannot resort to judicial construction of a statutory provision unless the provision in question is ambiguous.[16] After fully considering the statutory language in question, I cannot conclude that the § 5-19-31(a) phrase "an approved mortgagee under the provisions of the National Housing Act" is ambiguous. That phrase clearly and unambiguously leads the reader to the Federal law, contained in 24 C.F.R. §§ 202.11(a) and 202.12, defining which mortgagees are, and which are not, approved to make NHA federally insured mortgages.
But even if the § 5-19-31(a) phrase "an approved mortgagee under the provisions of the National Housing Act" could be held ambiguous, I could not agree with the majority's contention that this Court should interpret that phrase as requiring NHA-approved mortgagees to seek "branch office" approval in Alabama in order to qualify for a § 5-19-31(a) exemption. "It is a fundamental principle of statutory construction that [a court construing a statute will assume that] in enacting the statute the legislature had full knowledge and information as to prior and existing law ... on the subject of the statute." Miller v. State, 349 So.2d 129, 131 (Ala.Crim.App.1977).[17] "[W]e presume that *1183 the Legislature knows the meaning of the words it uses in enacting legislation." Ex parte Jackson, 614 So.2d 405, 407 (Ala.1993). In construing the phrase in question, this Court must presume that the legislature had full knowledge of the NHA approval procedures contained in the federal regulations. Those regulations, as shown above, provide that a mortgagee that wishes to make federally insured mortgages must first seek HUD approval for its main underwriting office, and that once the mortgagee is approved by the Secretary of HUD it can then seek approval for any other "branch offices" out of which the approved mortgagee intends to underwrite federally insured mortgages.[18] Section 202.12(m) makes it abundantly clear that "branch office" approval is not a requirement for being an NHA-approved mortgagee, but is instead completely optional.[19]
I cannot conclude, from the facts contained in the record, that UCLC failed to satisfy any of the federal requirements found in 24 C.F.R. §§ 202.11, 202.12, or 202.14 for being approved to participate in the mortgage insurance programs authorized by the National Housing Act; therefore, I must dissent, because I am convinced that our initial holdingthat the trial court erred in entering the partial summary judgment in favor of the McGehees as to the issue of the applicability of the Ala.Code 1975, § 5-19-31(a), exemptionwas correct.
HOOPER, C.J., and MADDOX, J., concur.
NOTES
[1] The dissent asserts that this question was not presented to the circuit court. On the contrary, the McGehees' brief in opposition to UCLC's motion for summary judgment made the point that UCLC was not approved to make NHA loans in Alabama: "UCLC's `approval' covers only the New Orleans HUD field office jurisdiction. On October 3, 1990, UCLC received its `approval.'" That brief also states: "UCLC has not applied for branch approval for any of its branches to make HUD and/or National Housing Act loans. It is undisputed that UCLC has not obtained separate HUD approval to originate FHA loans out of its Mobile, Alabama branch." These points are sufficiently set forth in the record to support the circuit court's order.
[2] The McGehees allege that the $133.50 "interim interest" and the $59.50 "tax service fee" that make up the balance of the prepaid finance charges are also points. We express no opinion on whether these items constitute points; if they do, the points in this loan exceed 8.5% of the amount financed.
[3] Before a 1994 amendment, § 5-19-31(a) read: "None of the provisions of this chapter ... shall apply"; this opinion uses the current version because the change is insubstantial. See 1989 Ala. Acts, Act No. 89-541, p. 1132; 1994 Ala. Acts, Act No. 94-118, p. 146.
[4] The dissent quotes other portions of the HUD regulations, but, as we read these regulations, most of them apply only to an approved mortgagee's home office or to approved branch offices. It appears that unapproved branch offices are not supervised by HUD. Thus, approved mortgagees who maintain branch offices but do not seek approval to make NHA loans from those offices apparently may run those offices with no concern for most of the federal regulations. Thus, we are concerned by the dissent's suggestion that a claim based on the activities of such a branch office should be dismissed out of hand on a motion for summary judgment.
[5] The dissent characterizes the language in § 202.12(m) concerning branch office approval as "permissive." The suggestion in footnote 15 of the dissent that such an office could originate NHA loans is contrary to the Federal regulations. However, branch office approval is required before such an office may submit NHA loan applications.
[6] Publication 4060.1, October 1980, with all changes through #3, 12/29/86; this version was in effect when UCLC obtained approval for its home office and when it made the loan to the McGehees.
[7] See Smith v. First Family Financial Services, Inc., 626 So.2d 1266 (Ala.1993), regarding an attempt to avoid the 5% discount point cap of § 5-19-4(g) by not disclosing commissions to mortgage brokers as prepaid finance charges.
[8] An NHA-insured mortgage loan is "federally related" as defined in § 1735f-5(b)(2)(B). Categories (A), (C), and (D) are "federally related" otherwise than by NHA insurance. Category (D) appears to be the broadest, making a loan "federally related" simply because the creditor "makes or invests in residential real estate loans aggregating more than $1,000,000 per year."
[9] 12 U.S.C. § 1735f-7a(b)(2) allowed states to override DIDMCA's preemption of state usury laws by enacting interest rate caps, but only within a narrow time period (1980-83) and only by expressly overriding DIDMCA. 12 U.S.C. § 1735f-7 more broadly allows states to override the usury law preemption that is specific to NHA loans. See Doyle v. Southern Guar. Corp., 795 F.2d 907, 914 (11th Cir.1986), which discusses these override provisions. These provisions are separate from § 1735f-7a(b)(4), discussed in the text, which allows states to override DIDMCA preemption as to caps on discount points simply by enacting a cap on discount points after March 31, 1980. See Autrey v. UCLC, discussed later in the text.
[10] The dissent construes the exemption most favorably to the party seeking exemption. The principle that the legislature is presumed to know the applicable laws and Federal regulations leads us to conclude that the legislature was aware that branch offices in Alabama require separate approval and therefore intended that only such approved branch offices would be exempt, not, as the dissent would conclude, that the legislature intended to exempt all offices opened by mortgagees with NHA approval in some other state, whether or not the offices in this state are approved to make NHA loans.
[11] The issue the majority addresses in its opinion on rehearing was not raised by the McGehees in the trial court. The only issues raised below were addressed in my opinion of March 22, 1996.
[12] In its order granting the partial summary judgment for the McGehees, the trial court stated that "it is undisputed that [UCLC] is an approved mortgagee under the provisions of the National Housing Act."
[13] The pertinent portion of § 5-19-31(a) (as it read before the February 24, 1994, amendment) states:
"None of the provisions of this chapter ... shall apply to any ... mortgage of an interest in real property, where the creditor is a lending institution which is an approved mortgagee under the provisions of the National Housing Act. ..."
(Emphasis added.)
[14] I cannot agree with the following assertion of the majority:
"Because UCLC's Alabama offices are not approved by HUD, they are not regulated by HUD. This fact supports a construction that only mortgagees whose offices in Alabama are approved by HUD are exempted by § 5-19-31 from the provisions of the Mini-Code."
686 So.2d at 1177. The McGehees and all other persons who do business with mortgage companies that are NHA-approved mortgagees do benefit from the regulations contained in 24 C.F.R. §§ 202.12 and 202.14, whether or not the office they deal with is a "branch office" approved under § 202.12(m). These regulations ensure that NHA-approved mortgagee institutions are reputable and financially stable, and, most importantly, that such institutions are capable of answering to the mortgagor if a problem arises (in other words, compliance with these regulations ensures that a mortgagee is not a "fly-by-night" mortgage company). For example, the regulations applicable to all NHA-approved mortgagees require that such mortgagees: follow procedures acceptable in the mortgage industry generally (see § 202.12(l)(4)), have adequate financial resources (see § 202.12(n), (o), and (q)), are insured for errors and omissions (see § 202.12(r)), as well as comply with federal lending and housing laws.
[15] UCLC also argued in its brief that, according to its reading of the regulations, it would not have violated 24 C.F.R. § 202.12(m) for its Mobile office to go as far as to take applications for federally insured mortgages without "branch office" approval, as long as its Mobile office was not participating in the underwriting of federally insured mortgages.
[16] See Hines v. Riverside Chevrolet-Olds, Inc., 655 So.2d 909, 924 (Ala.1994), which states:
"When a statutory pronouncement is clear and not susceptible to different interpretations, it is a paramount judicial duty to abide by that clear pronouncement."
(Citing Macon v. Huntsville Utilities, 613 So.2d 318 (Ala.1992).)
[17] See Holstein v. Norandex, Inc., 194 W.Va. 727, 461 S.E.2d 473, 477 (1995):
"A statute should be so read and applied as to make it accord with the spirit, purposes and objects of the general system of law of which it is intended to form a part; it being presumed that the legislators who drafted and passed it were familiar with all existing law, applicable to the subject matter, whether constitutional, statutory or common, and intended the statute to harmonize completely with the same and aid in the effectuation of the general purpose and design thereof, if its terms are consistent therewith."
(Emphasis added.) (Quoting State ex rel. Goff v. Merrifield, 191 W.Va. 473, 446 S.E.2d 695 (1994), and other cases.) See also Holmes County School Bd. v. Duffell, 651 So.2d 1176 (Fla. 1995); Wilson v. Miles, 218 Ga.App. 806, 463 S.E.2d 381 (1995); Nunnally v. State Dep't of Public Safety, 663 So.2d 254 (La.App.1995); Smith v. Retirement Bd., 656 A.2d 186 (R.I.1995); Still v. First Tennessee Bank, N.A., 900 S.W.2d 282 (Tenn.1995).
[18] For the same reasons, this Court must also presume that the legislature was aware that 24 C.F.R. § 202.11(a)(4) allows the Secretary of HUD to restrict geographically the approval of mortgagees applying under § 202.11(a). Subsection (a)(4) states:
"(4) Approval of mortgagees may be restricted to geographic areas designated by the Secretary or may be approved to operate on a nationwide basis."
Had the legislature intended to restrict the application of Ala.Code 1975, § 5-19-31(a), to NHA-approved mortgagees who have been approved to make federally insured loans in Alabama, the legislature could have easily done so, just as the legislature, if it had so chosen, could have restricted the application of the exemption to federally insured mortgage loans only (an argument rejected in this Court's original opinion). See Ex parte Jackson, 614 So.2d 405, 407 (Ala.1993):
"[W]e presume that the Legislature knows the meaning of the words it uses in enacting legislation.... [I]f it intended [the section in question] to apply in this case, [it] knew how to draft a statute to reach that end.... The judiciary will not add that which the Legislature chose to omit."
(Emphasis added.)
[19] The requirements for being an NHA-approved mortgagee, aside from the § 202.11(a) application requirement, are contained in 24 C.F.R. § 202.12. That section states:
"To be approved for participation in the mortgage insurance programs authorized by the National Housing Act, except Title I of the Act, and to maintain approval, a mortgagee shall meet the general requirements of this section ... and the specific requirements of § 202.13 through § 202.19, as appropriate."
(Emphasis added.) The requirement at issue here is found in subpart (m):
"(m) Branch offices. It may, only upon approval by the Secretary, maintain branch offices for the submission of applications for mortgage insurance. The mortgagee shall remain fully responsible to the Secretary for the actions of its branch offices."
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765 F.2d 753
Clarence A. KRESSE, John A. Rilling, Special Administratorfor the Estate of Daniel Dean Wolf, deceased, andRenee Wolf, individually, Appellants,v.The HOME INSURANCE COMPANY, Appellee.Burlington Northern Railroad Company, Amicus curiae appellant.
No. 84-2609.
United States Court of Appeals,Eighth Circuit.
Submitted May 15, 1985.Decided June 28, 1985.
Mervin Nordeng, Fargo, N.D., for appellants.
Jeffrey R. Hannig, Moorhead, Minn., for appellee.
Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge.
HEANEY, Circuit Judge.
1
Clarence A. Kresse, John A. Rilling (Special Administrator for the Estate of Daniel Dean Wolf, deceased) and Renee Wolf, (collectively "Kresse"), brought a diversity action in the United States District Court for the District of North Dakota seeking a declaration of insurance coverage under the Business Auto Policy issued to Cass County, North Dakota, by the Home Insurance Company (hereinafter "Home"). Following cross motions for summary judgment, the district court granted Home's motion for summary judgment and ordered judgment on Home's behalf, finding that Kresse was not insured under the policy. For reversal, Kresse argues that the district court erred in its interpretation of the meaning of the term "hired auto" as used in Home's insurance policy. In addition, Kresse seeks reversal of the district court's refusal to permit discovery of information relating to premiums assessed to other similarily situated insureds. We reverse in part, affirm in part, and remand for trial.
FACTS:
2
At approximately 2:15 p.m. on July 17, 1981, at the intersection of Cass County No. 1 and Burlington Northern Railroad Company's (hereinafter "BN") trackage a collision occurred between a BN freight train and a truck operated by Daniel Dean Wolf, and owned by Clarence A. Kresse. At the time of the collision, the truck was hauling gravel for Cass County, North Dakota. As a result of the collision, Daniel Wolf died, Aloys Wawers (a train crewman) claims to have been injured, the BN train was derailed and extensively damaged, and the Kresse truck was destroyed. BN brought suit against Kresse, Cass County, the estate of Daniel Wolf and Renee Wolf (Daniel's mother) seeking $3,000,000 in damages. Aloys Wawers brought suit against BN, Kresse, Wolf's estate, and Cass County for injuries in the amount of $450,000.
DISCUSSION:
3
In reviewing the district court's denial of coverage by granting Home's motion for summary judgment, all facts and reasonable inferences drawn from the facts must be viewed in a light most favorable to Kresse. Mandel v. United States, 719 F.2d 963, 964 (8th Cir.1983); Portis v. Folk Construction Co., 694 F.2d 520, 522 (8th Cir.1982). Summary judgment may be granted only when there is no genuine issue of material fact and the moving party has proved he or she is entitled to judgment as a matter of law. Mandel, 719 F.2d at 965; Ralph's Distributing Co. v. AMF, Inc., 667 F.2d 670, 672 (8th Cir.1981); Fed.R.Civ.P. 56(c). After a careful review of the record, we find that Home is not entitled to summary judgment.
4
The issue before this Court is whether the Kresse truck was, as a matter of law, "hired" by Cass County within the meaning of the Home insurance policy. To reach a conclusion on this issue requires both analysis of the facts and interpretation of the legally operative meaning of the word "hire." Home's policy provides coverage for any permissive user of an automobile "hired" by the named insured, Cass County. Home chose not to define the term "hire" or "hired auto" within its policy, and under North Dakota law, words of a contract are to be understood in their ordinary and popular sense unless a special meaning is given to them by usage. N.D.Cent.Code Sec. 9-07-09. When an insurer fails to define a coverage term, it is not entitled to a strict or limited definition that differs from the ordinary definition in order to avoid providing coverage. Wall v. Pennsylvania Life Ins. Co., 274 N.W.2d 208, 217 (N.D.1979). Furthermore, when one interpretation of an insurance policy provision will impose liability on the insurer and another will not, the interpretation favorable to the insured will be adopted. Id., at 215; Williams v. Niesen, 261 N.W.2d 401, 404 (N.D.1977).
5
This Court has been presented with several definitions of the term "hired auto." Kresse urges adoption of the definition provided in 7 Am.Jur.2d, Automobile Insurance Sec. 245:
6
The term generally is used to mean a vehicle owned by someone other than the insured which is leased by the insured pursuant to a lease agreement which calls for the owner to provide not only the vehicle, but also a driver for that vehicle while it is being used in the insured's business.
7
Home claims the proper definition is contained in Webster's Third New International Dictionary (Unabridged ed. 1971), which states: "[A] hired auto under the policy is one whose temporary use has been engaged for a fixed sum." This definition was applied by the court in Kasten Construction Co. v. Rod Enterprises, 268 Md. 318, 329, 301 A.2d 12, 18 (1973). Another definition of "hired auto" is as used by Home in its policy which was in dispute in Juve v. Home Indemnity Co., 301 N.W.2d 554, 556 (Minn.1981): "[A]n automobile not owned by the named insured which is used under contract in behalf of, or loaned to, the named insured." Absent an express definition within the policy, we conclude that the term "hired auto" is ambiguous.
8
From the facts it is clear that a contract existed between Cass County (the named insured) and Kresse. Cass County through its Road Superintendent's letter of May 5, 1981 extended an offer to Kresse and other gravel haulers, as had been the practice for some twenty years. Kresse accepted through performance in full compliance with the detailed rules of the County's letter. In this letter, the County refers to the gravel hauling trucks as "hired trucks," and the drivers are referred to as "hired truck drivers." Home argues that these terms have no legal significance, but is unable to cite controlling authority. There is no dispute that Kresse provided the County with the use of his truck and a driver in exchange for monetary consideration. Additionally, the county determined the route to be used and had the right to dismiss any driver that deviated from it. The trucks had specified hours of operation determined by the county. The County loaded the trucks and supervised the unloading. All truck owners were required to maintain a good credit rating and to provide proof of insurance coverage for the vehicles.
9
The agreement between Cass County and Kresse did not expressly provide for the hiring of a specific truck. The district court held and Home argues that the term "hired auto" was meant to provide coverage to the County only on vehicles the County might specifically hire. Leaving aside the general tendency of courts to construe coverage clauses broadly in favor of the insured, Applegren v. Milbank Mutual Ins. Co., 268 N.W.2d 114, 118 (N.D.1978), under the facts, Kresse argues that his truck was specifically hired. Kresse's truck's hauling capacity was measured by the County at the beginning of the season. Once measured, Kresse was required to use the specific truck for the entire hauling season. A reasonable person in the position of the insured, could conclude that the Kresse truck was "hired" under the policy. The district court erred in finding that "there are no facts in the case from which a reasonable person could conclude that Cass County hired the trucks necessary to move the gravel." We hold, that on the record, Home has failed to prove an absence of a genuine issue of material fact regarding the dispute over whether the Kresse truck was "hired" and therefore is not entitled to summary judgment.
10
Upon the record as presented we conclude, with respect to the issue of discovery, that the district court did not abuse its discretion in granting the protective order of September 7, 1983. On this issue we affirm based on the memorandum and order of the district court. See 8th Cir.R. 14.
11
Accordingly, the judgment of the district court is reversed in part, affirmed in part, and remanded in part consistent with this opinion.
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76 F.3d 384
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.Anita BROWN, Plaintiff-Appellant,v.AMERICAN TELEPHONE & TELEGRAPH CO., Defendant-Appellee.
No. 94-55478.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 13, 1995.Decided Feb. 9, 1996.As Modified on Denial of Rehearing and Suggestion forRehearing En Banc April 4, 1996.
MEMORANDUM*
Before: FLETCHER, CANBY, and HAWKINS, Circuit Judges.
1
Brown appeals the grant of summary judgment in favor of the American Telephone & Telegraph Company ("AT & T") dismissing her California state law employment discrimination action in which she claimed race and age discrimination. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I. BACKGROUND
2
AT & T hired Brown in 1963 as a telephone operator. In 1985, AT & T transferred her to an Order Typist position. In 1988, as a result of mechanization and consolidation, AT & T eliminated the Order Typist position. AT & T encouraged Brown to transfer to another position within AT & T. The other five Order Typists in Brown's office (one of whom was black) did so. Though Brown repeatedly applied for a transfer, on each occasion she either withdrew her application or failed the qualifying examination.
3
In February 1989, Brown filed a racial discrimination charge against AT & T with the United States Equal Employment Opportunity Commission ("EEOC"). In May 1989, AT & T told the EEOC that it would not fire any of its Order Typists. In September 1990, the EEOC determined that AT & T had not discriminated against Brown. In July 1991, after Brown requested review, the EEOC affirmed its determination.
4
Conflicting evidence clouds whether AT & T transferred Brown from an Order Typist position to a Records Clerk position. The latter position but not the former had "bumping rights," which allow a laid off employee to take the job of a retained employee with less seniority. Whatever her title, evaluation forms demonstrate that AT & T was satisfied with Brown's performance between 1988 and 1991.
5
On May 15, 1991, AT & T announced that it would eliminate the Order Typist position and remove all personnel from that position in two months. Brown was the only Order Typist in the western United States. AT & T simultaneously eliminated 75 other positions in the region. During the two month interim, Brown applied for three transfers but withdrew her application each time. On July 15, 1991, AT & T fired Brown.
6
One week later, according to the declaration of AT & T employee Rebecca Clark, AT & T hired Shepherd to do the work Brown had been doing. Brown is black and Shepherd is white. AT & T claims it hired Shepherd, a retired AT & T employee, as a "temporary" worker.
7
On July 26, 1991, eleven days after firing Brown, AT & T introduced a new pension enhancement plan that would have allowed Brown to leave with an immediate pension instead of waiting until she turned 65.
8
In March 1993, Brown sued AT & T in a California court for wrongful termination and discrimination on the basis of race and age. The action was removed to federal district court pursuant to 28 U.S.C. § 1446 on the basis of diversity of citizenship. In March 1994, the court granted AT & T's motion for summary judgment. Brown appeals.
II. STANDARD OF REVIEW
9
We review a grant of summary judgment de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995). Viewing the evidence in the light most favorable to the nonmoving party, we must decide whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.
III. RACIAL DISCRIMINATION
10
In actions claiming racial discrimination, the California courts have adopted the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), analytic regime. Clark v. Claremont Univ. Ctr., 8 Cal.Rptr.2d 151, 164 (Cal.Ct.App.1992); Mixon v. Fair Employment & Housing Comm'n, 237 Cal.Rptr. 884, 890 (Cal.Ct.App.1987).
11
Brown made out her prima facie case. She is black. Her performance satisfied AT & T. AT & T fired her. Brown submitted the declaration of another AT & T employee who claims AT & T replaced Brown with Shepherd, a white temporary employee. AT & T in turn satisfied its burden of production, claiming it fired Brown and hired Shepherd because temporary workers are more flexible and less expensive, and because Shepherd was more qualified.
12
To avoid summary judgment, Brown must produce "specific, substantial evidence" that these claims are a pretext to hide racial discrimination. Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir.1994). Brown did produce evidence that for all relevant purposes Brown is as qualified as Shepherd. However, as to AT & T's cost-cutting claim, Brown only produced evidence of the following facts: AT & T broke its promise to the EEOC not to fire Order Typists, AT & T may have improperly fired her as an Order Typist without bumping rights, and Brown was the only Order Typist in the western region. Even if true, none of these facts can raise a triable issue over the validity of AT & T's cost-cutting explanation.
IV. AGE DISCRIMINATION
13
California courts also apply the McDonnell Douglas analytic model to age discrimination cases. Nesbit v. Pepsico, Inc., 994 F.2d 703, 704-05 (9th Cir.1993); Ewing v. Gill Industries, Inc., 4 Cal.Rptr.2d 640, 644-45 (Cal.Ct.App.1992).
14
Brown failed to make out her prima facie case: no evidence suggests that Brown is older than Shepherd. Brown also produced no evidence suggesting AT & T fired her and hired Shepherd not to cut costs but to eliminate older employees. Brown did present evidence that AT & T fired her eleven days before introducing a more favorable pension plan. However, AT & T gave Brown ample opportunity to transfer into a more secure job title. Moreover, discrimination on the basis of pension status is properly challenged under ERISA. See Hazen Paper Co. v. Biggins, 507 U.S. 604, ----, 113 S.Ct. 1701, 1707 (1993).
V. EXHAUSTION OF CONTRACT REMEDIES
15
In light of our resolution on the merits, we need not reach AT & T's arguments regarding Brown's alleged failure to exhaust arbitration remedies available under her collective bargaining contract.
VI. CONCLUSION
16
On both her age and racial discrimination claims, Brown produced no evidence that rebuts AT & T's claim that it fired Brown and hired Shepherd because temporary workers cost less and are more flexible than permanent workers. On her age discrimination claim, Brown produced no supporting evidence. Accordingly, we affirm the District Court's judgment granting summary judgment in favor of AT & T.
17
AFFIRMED.
*
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
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30 So.3d 472 (2008)
EX PARTE JAMES E. BAGLEY (IN RE: JAMES E. BAGLEY v. STATE).
No. 2070940.
Court of Civil Appeals of Alabama.
July 17, 2008.
Decision of the Alabama Court of Civil Appeal Without Published Opinion Transferred to Ct. of Crim. App. for lack of subject-matter jurisdiction.
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47 F.3d 1159
Brockv.Nassau County
NO. 94-2328
United States Court of Appeals,Second Circuit.
Jan 30, 1995
Appeal From: E.D.N.Y.93-cv-5320
1
AFFIRMED.
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J-S69044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CRAIG YORK,
Appellant No. 618 MDA 2016
Appeal from the Order Entered April 4, 2016
in the Court of Common Pleas of Schuylkill County
Criminal Division at No.: CP-54-CR-0002058-2008
BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*
JUDGMENT ORDER BY PLATT, J.: FILED OCTOBER 05, 2016
Appellant, Craig York, appeals pro se from the order dismissing his
motion to correct sentence. Specifically, he claims he was denied credit for
forty-eight days of time served. He alleges, inter alia, an illegal sentence.
The record reveals patent error in the trial court’s failure to make an
unequivocal, clear, and consistent award of credit for time served.
Accordingly, we are constrained to remand for resentencing.
On September 15, 2009, a jury convicted Appellant of possession of
child pornography.1 Originally sentenced to county probation, he was
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 6312(d).
J-S69044-16
persistently non-compliant, resulting in three resentencings, first to
probation, with warnings, and eventually to his incarceration.
Appellant later claimed credit for time served when he could not make
bail. See 42 Pa.C.S.A. § 9760(1) (mandating credit for “all time spent in
custody as a result of the criminal charge for which a prison sentence is
imposed”); see also Commonwealth v. Johnson, 967 A.2d 1001, 1006
(Pa. Super. 2009) (concluding trial court required to credit appellant with all
time served on revocation of probation and resentencing).
In March of 2015, the trial court amended Appellant’s sentencing order
stating generally that he was “entitled to credit from the day of his arrest on
March 8, 2013,” setting minimum and maximum sentence expiration dates.
(Order, 3/10/15). However, that order, explicitly prospective from March 8,
2013, does not identify or explain how much time is to be credited.
Furthermore, it does not respond to Appellant’s claim that he was denied
credit at resentencing on July 21, 2010, for time served after arrest from
November 5, 2008 to November 11, 2008. Appellant also claims he was
denied credit for the same seven days at re-sentencing on June 14, 2013.
The order of June 14, 2013 does not address credit for time served. 2 (See
Order, 6/14/13). Finally, Appellant claims that at the same third re-
sentencing on June 14, 2013, the trial court failed to give him credit for time
____________________________________________
2
The order does include a boilerplate catch-all that “[a]ll other terms of the
original sentence shall remain in effect.” (Order, 6/14/13).
-2-
J-S69044-16
served from August 3, 2012 to September 12, 2012.3 (See Appellant’s
Brief, at 9). It is generally impossible to determine from the other sporadic
and inconsistent references in the sentencing orders and the rest of the
certified record whether the trial court properly granted or denied credit for
time served when imposing Appellant’s various sentences.
On April 4, 2016, the trial court dismissed Appellant’s motion to
correct sentence, citing 42 Pa.C.S.A. § 5505 (trial court generally lacks
authority to correct sentence after thirty days).4 However, our Supreme
Court has held that “the limits of jurisdiction enshrined in Section 5505 do
not impinge on that time-honored inherent power of courts” to correct
patent errors despite the absence of traditional jurisdiction.
Commonwealth v. Holmes, 933 A.2d 57, 65 (Pa. 2007).
A few indirect or incidental references in the record to credit owing for
time served, e.g., in Appellant’s revocation of probation hearing, do not
suffice or substitute for the trial court’s duty to grant credit for time served.
(See, e.g., N.T. Hearing, 9/12/12, at 8) (testimony of probation and parole
officer). The trial court’s failure to identify specific credit for time served at
____________________________________________
3
Exhibit E to Appellant’s brief confirms that at sentencing on July 21, 2010,
he received credit for thirty-one days of time served from June 21, 2010.
(See Appellant’s Brief, at Exhibit E).
4
Only in its Rule 1925(a) opinion does the trial court advance the alternative
rationale that Appellant’s claim was in reality an untimely petition under the
Post Conviction Relief Act (PCRA). (See Trial Court Opinion, 6/24/16, at 1-
2).
-3-
J-S69044-16
sentencing, or to address Appellant’s time credit claims from 2008 and 2012,
constitute patent error in violation of § 9760. Accordingly, we are
constrained to remand for resentencing to include explicit reference to the
amount of credit granted for time served.
Order vacated. Case remanded for resentencing. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/5/2016
-4-
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485 P.2d 728 (1971)
Dave WILLIAMS, Jr., Plaintiff in Error,
v.
SPEEDSTER, INC., a Colorado corporation, Defendant in Error.
No. 24219.
Supreme Court of Colorado, En Banc.
June 7, 1971.
Samuel Berman and Buron Keith Watson, Denver, for plaintiff in error.
Van Cise, Freeman, Tooley & McClearn, Karl E. Ranous, Charles Goldberg, Denver, for defendant in error.
PRINGLE, Chief Justice.
The parties appear here in the same order as in the trial court, and will be referred to by name. Williams brought this action against his former employer seeking damages under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (1964), as amended (Supp. V 1969) (hereinafter cited: *729 F.L.S.A. § ______). He claims he was not paid time and one-half for overtime worked as required by this federal statute. Williams commenced employment with Speedster in late July of 1964, and continued with them through May 1, 1966. This action was filed on September 19, 1967. A second claim alleged that Speedster continued to deduct $4 per week from Williams' check to pay for a group insurance policy although the insurance policy had been cancelled. Exemplary damages were prayed for on this second claim.
The trial court granted Speedster's motion for summary judgment on the first claim holding that the action was barred because of C.R.S.1963, 87-1-5, a Colorado one-year statute of limitations specifically relating to actions brought under the federal Fair Labor Standards Act. (This action was brought some sixteen months after the alleged violations.) There is a two-year statute of limitations in the federal statute. F.L.S.A. § 255. Relating to the second claim, the trial court ruled that this was an action in contract, and thus exemplary damages were not allowable under C.R.S.1963, 41-2-2. Without the exemplary damages, the second claim was for $112 and the trial court concluded that such an amount was only within the jurisdiction of the county court, and could not be maintained in the district court.
Williams argues: (1) That F.L.S.A. § 255, the two-year federal statute of limitations relating to the Fair Labor Standards Act, pre-empts the Colorado one-year statute, and (2) that the trial court improperly dismissed the second claim. We agree with Williams and reverse.
I.
The Fair Labor Standards Act was passed in 1938 without any statute of limitations. In 1945, in order to fill this void, C.R.S.1963, 87-1-5 was passed, which reads as follows:
"One yearfair labor standards act All suits and actions for the recovery of damages, fees or penalties accruing under the act of congress known as the fair labor standards act of 1938, as same has been or may hereafter be amended, shall be brought within one year after the accrual of such cause of action."
Thereafter, in 1947, F.L.S.A. § 255 was enacted, and as amended, reads in pertinent part as follows:
"Any action commenced on or after May 14, 1947, to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act
"(a) if the cause of action accrues on or after May 14, 1947may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued. * * *"
The question, then, before us is whether F.L.S.A. § 255, the federal statute, preempted C.R.S.1963, 87-1-5, the state statute.
Under U.S.Const. art. VI, § 2, commonly known as the Supremacy Clause, laws of the United States which fully cover the field over a matter in which the federal government has jurisdiction preempts that field, and any state laws where the purpose of the federal statute would, to some extent, be frustrated are invalid. Colorado Anti-Discrimination Commission v. Continental Air Lines, Inc., 372 U.S. 714, 83 S.Ct. 1022, 10 L.Ed.2d 84; Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640; Fitzgerald v. Catherwood, 2 Cir., 388 F.2d 400, cert. denied, 391 U.S. 934, 88 S.Ct. 1846, 20 L.Ed.2d 854. That the Fair Labor Standards Act *730 covers a field over which the federal government has jurisdiction is too well established to need citations of authority. We therefore pass on to the question of the congressional intent in adding to that act a statute of limitations. That congressional intent clearly appears in the report of the House Committee, which reads as follows:
"The desirability of a uniform Federal statute of limitations has often been pointed out. In the absence of such a statute, courts are required to enforce the State statute deemed to be applicable. [Citing predecessor of 28 U.S.C. 1652.] This has caused confusion and a lack of uniformity throughout the Nation. H. R.Rep.No. 7, 80th Cong., 1st Sess. 5 (1947)."
We hold, therefore, that under the force of the Supremacy Clause, C.R.S.1963, 87-1-5 would frustrate the purposes of the Federal act and is invalid. Accord, Kendall v. Keith Furnace Co., 8 Cir., 162 F.2d 1002; Bartels v. Piel Brothers, D.C., 74 F.Supp. 41.
II.
Speedster argues that the trial court properly held that under the authority of C.R.S.1963, 41-2-2, exemplary damages are not available to an action sounding in contract. We agree. Sams v. Curfman, 111 Colo. 124, 137 P.2d 1017; Westesen v. Olathe State Bank, 75 Colo. 340, 225 P. 837. Our reading of the "Second Cause of Action" in Williams' complaint clearly indicates that it does sound in contract. There are no factual allegations in the complaint which would justify exemplary damages.
The trial court did not limit its dismissal solely to the prayer for exemplary damages, but held that since it had stricken the claim for exemplary damages, the amount of the claim was limited to $112, and was required to be filed in the county court rather than in the district court. This was plain error. District courts of this state are courts of general jurisdiction regardless of the amount in controversy. Colo.Const., art. VI, § 9.
The judgment of the trial court is reversed and remanded for further proceedings not inconsistent with this opinion.
LEE, J., not participating.
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Filed 5/21/14; pub. order 6/17/14 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
MARCUS L. ROBERSON,
Plaintiff and Appellant, E058187
v. (Super.Ct.No. CIVSS814327)
CITY OF RIALTO, OPINION
Defendant and Respondent;
WAL-MART REAL ESTATE BUSINESS
TRUST et al.,
Real Parties in Interest and
Respondents.
APPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco,
Judge. Affirmed.
Briggs Law Corporation, Cory J. Briggs and Mekaela M. Gladden for Plaintiff and
Appellant.
1
Stradling Yocca Carlson & Rauth and Allison E. Burns for Defendant and
Respondent.
Drinker Biddle & Reath, Henry Shields, Jr., Paul M. Gelb, and Pamela K. Graham
for Real Parties in Interest and Respondents.
I. INTRODUCTION
On July 15, 2008, defendant and respondent, City of Rialto (the City), through its
city council, adopted several “project approvals,” clearing the way for the construction of
a large commercial retail center in the City, to be anchored by a Wal-Mart Supercenter
(the project). Plaintiff and appellant, Marcus L. Roberson, petitioned the trial court for a
writ of administrative mandate (Code Civ. Proc., § 1094.5) invalidating and setting aside
the project approvals, namely, a resolution certifying an environmental impact report for
the project, resolutions approving general and specific plan amendments for the project
site, and an ordinance approving a development agreement for the project.
In his trial brief, Roberson claimed the project approvals were invalid only
because the notice of the initial, July 1, 2008, public hearing before the city council on
the project approvals did not indicate that the planning commission had recommended the
city council adopt the project approvals. (Gov. Code, §§ 65090, 65094;1 Environmental
Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877, 890-
893 (Environmental Defense Project) [notice of hearing before legislative body on
1 All further statutory references are to the Government Code unless otherwise
indicated.
2
actions subject to the Planning and Zoning Law (§ 65000 et seq.) must include planning
commission recommendations].)
In January 2013, nearly four years after an April 2, 2009, court trial on Roberson’s
petition, the trial court entered judgment denying Roberson’s petition. Roberson appeals,
claiming the judgment must be reversed and the project approvals invalidated and set
aside based solely on the defective notice of hearing. He argues only that he presented
“unopposed” evidence to the trial court that he was prejudiced by the defective notice of
hearing. (§ 65010, subd. (b) [legislative actions under the Planning and Zoning Law may
not be invalidated or set aside absent findings of prejudice, substantial injury, and
probability of a different result absent the error].)
Respondents and real parties in interest2 argue Roberson’s defective notice claim
is barred by the doctrine of res judicata, because the same defective notice claim was
finally litigated on its merits in Rialto Citizens for Responsible Growth v. City of Rialto
(2012) 208 Cal.App.4th 899, 916-921 [Fourth Dist. Div. Two] (Rialto Citizens), and
Roberson is in privity with the plaintiff in that action, Rialto Citizens for Responsible
Growth, a nonprofit mutual benefit corporation. Real parties also move to dismiss
Roberson’s appeal as frivolous and dilatory on the grounds his defective notice claim is
barred by res judicata and no reasonable attorney would have pursued the appeal
2 Real parties in interest (real parties) are Wal-Mart Real Estate Business Trust,
Wal-Mart Real Estate Business Trust, Inc., and Wal-Mart Real Estate Trust, Inc. The
City has joined real parties’ respondents’ brief.
3
following the finality of this court’s decision in Rialto Citizens.3 Real parties seek
$12,860 in sanctions, their attorney fees incurred in preparing the motion to dismiss.
Roberson opposes the motion with supporting declarations.
We affirm the judgment denying Roberson’s petition for two independent reasons:
(1) Roberson has not demonstrated reversible error because the record on appeal is
inadequate to show the trial court erroneously failed to credit Roberson’s “evidence of
prejudice,” and (2) his defective notice claim is barred by res judicata. The claim is in all
respects identical to Rialto Citizens’s defective notice claim; Rialto Citizens resulted in a
final judgment on the merits of the claim; and Roberson is in privity with Rialto Citizens.
We decline to decline to dismiss Roberson’s appeal as frivolous, though the question is a
close one, and we deny real parties’ motion for $12,860 in sanctions.
II. BACKGROUND
On May 28, 2008, the planning commission held a public hearing and issued
several resolutions recommending that the city council adopt the project approvals.4 A
3 Real parties request that this court take judicial notice of court records in Rialto
Citizens: (1) Rialto Citizens’s petition for writ of mandate, filed on August 8, 2008, in
case No. CIVSS810834, seeking to nullify and set aside the project approvals based on
the defective notice of hearing, among other grounds; (2) the state Supreme Court’s
December 12, 2012, order, in case No. S205804, denying Rialto Citizens’s petition for
review in Rialto Citizens; and (3) this court’s remittitur in Rialto Citizens, issued on
December 20, 2012, in case No. E052253. We grant the request and take judicial notice
of these court records. (Evid. Code, §§ 452, subd. (d), 459.)
4 The project approvals included resolutions adopted by the city council certifying
an environmental impact report for the project and adopting amendments to the City’s
[footnote continued on next page]
4
hearing before the city council on the project approvals was originally scheduled for June
17, 2008, but the hearing was continued to July 1 because the city administrator failed to
publish notice of the July 1 hearing. On June 21, 2008, the City published notice of the
July 1 hearing in the San Bernardino County Sun, a local newspaper.
The notice stated that the city council would hold a public hearing on July 1, 2008,
to consider the project approvals. The hearing proceeded as noticed on July 1 and, on
that date, was continued to July 15 for “final consideration” of the project approvals and
to allow City staff to prepare written responses to comments received at the July 1
hearing. At the conclusion of the continued hearing on July 15, the city council adopted
the project approvals.
Roberson filed his original writ petition in October 2008, and filed an amended
petition in November 2008. In a single cause of action, the amended petition alleged that
the notice of the July 1 city council hearing on the project approvals was defective
because it failed to include, among other things, “a general explanation of the matter to
be considered.” (§§ 65090, 65094.) In his trial brief, he argued only that the notice of
the July 1 city council hearing was defective because it did not include the planning
commission’s recommendations on the project approvals. This point is not in dispute.
The parties and we agree the notice was defective because it did not include the planning
[footnote continued from previous page]
general plan and the specific plan governing the project site, and a city council ordinance
approving a development agreement for the project.
5
commission’s recommendations on the project approvals. (Environmental Defense
Project, supra, 158 Cal.App.4th at pp. 890-893.)
In Environmental Defense Project, the Third District Court of Appeal held that a
notice of a public hearing before the Sierra County board of supervisors to consider a
zoning ordinance amendment was defective because it was given before the county
planning commission first considered the amendment. (Environmental Defense Project,
supra, 158 Cal.App.4th at pp. 890-893.) Hence, the notice of the hearing before the
board did not indicate whether the planning commission was recommending that the
board adopt the amendment. (Id. at p. 882.) The notice was required to include, among
other things, “a general explanation of the matter to be considered” by the board at its
hearing on the amendment (§ 65094), and the court concluded that this “general
explanation” included the planning commission’s recommendation on the amendment.
(Environmental Defense Project, supra, at p. 891.)5
5 The Environmental Defense Project court interpreted section 65094 in light of
section 65033 of the Planning and Zoning Law, which recognized “‘the importance of
public participation’” “‘at every level of the planning process,’” and the related policy of
affording members of the public “‘the opportunity to respond to clearly defined
alternative objectives, policies, and actions.’” (Environmental Defense Project, supra,
158 Cal.App.4th at p. 891.) The court reasoned “there can be little doubt that the purpose
of notice in cases such as this one is to inform the public of the legislative body’s hearing
so they will have an opportunity to respond to the planning commission’s
recommendation and protect any interests they may have before the legislative body
approves, modifies, or disapproves that recommendation. If notice could be given before
the planning commission made its recommendation and, therefore, without inclusion of
what that recommendation was, the purpose behind the notice provision would be ill
served, as the notice would not inform the public to what ‘clearly defined alternative
objectives, policies, and actions’ they would be responding.” (Id. at pp. 891-892.)
6
In a declaration supporting his trial brief, Roberson averred he did not participate
in the July 1 or 15 city council hearings because he was unaware of the planning
commission’s recommendation that the city council adopt the project approvals. Had he
been aware of the recommendations, he claimed he would have submitted written
comments or testimony at the city council hearings, but he did not explain what
comments or testimony he would have submitted.
Following briefing and oral argument at an April 2, 2009, court trial, the trial court
denied Roberson’s petition to nullify and set aside the project approvals and adopted its
tentative decision as its order denying the petition. The record contains neither a copy of
the tentative decision nor a transcript of the April 2, 2009, court trial, and the judgment
contains no factual findings. Thus, the record is silent concerning the trial court’s reasons
for denying Roberson’s petition.
Previously, in August 2008, Rialto Citizens petitioned the trial court to invalidate
and set aside the project approvals based in part on the same defect in the notice of the
July 1 city council hearing that was the subject of Roberson’s original and amended
petitions. Unlike Roberson, Rialto Citizens participated in the July 1 city council hearing
through one of its members, Citizens for Responsible Equitable Environmental
Development (CREED). (Rialto Citizens, supra, 208 Cal.App.4th at pp. 912-913.)
Through CREED, Rialto Citizens, then an unincorporated nonprofit association, argued
the project approvals would violate the California Environmental Quality Act (CEQA),
the Planning and Zoning Law, and other land use laws.
7
The judgment in the present action was entered in January 2013, shortly after the
California Supreme Court denied review in Rialto Citizens, this court issued its remittitur
in the case, and the judgment denying Rialto Citizens’s writ petition (and defective notice
claim) became final. (See Eisenberg et al., Cal Practice Guide: Civil Appeals and Writs
(The Rutter Group 2013) ¶ 2:13.5, p. 2-12 [appealable judgment becomes final for all
purposes once all avenues for appellate review are exhausted or time frame for appeal has
otherwise lapsed].) The same attorneys who represented Roberson throughout the
present writ proceedings represented CREED in the July 1 and 15 city council hearings
and later represented Rialto Citizens throughout the Rialto Citizens action.
In Rialto Citizens, this court followed Environmental Defense Project and
concluded the notice of the July 1 city council hearing was defective because it did not
include the planning commission’s recommendation that the city council adopt the
project approvals. (Rialto Citizens, supra, 208 Cal.App.4th at p. 916.) But we also noted
that Rialto Citizens made no attempt to show in the trial court, and the trial court in Rialto
Citizens did not find, that the defect in the notice was prejudicial, caused substantial
injury to any of Rialto Citizens’s members, or that a different result (e.g., modified
project approvals) was probable absent the defect. (Id. at pp. 919-921; § 65010, subd.
(b).)6
6Section 65010, subdivision (b) of the Planning and Zoning Law states: “No
action, inaction, or recommendation by any public agency or its legislative body or any of
its administrative agencies or officials on any matter subject to this title shall be held
invalid or set aside by any court on the ground of the improper admission or rejection of
evidence or by reason of any error, irregularity, informality, neglect, or omission
[footnote continued on next page]
8
Thus, in Rialto Citizens, we concluded the trial court erroneously invalidated the
project approvals and ordered them set aside based solely on the defective notice, without
making the necessary factual findings of prejudice, substantial injury, and probability of a
different result absent the error. (Rialto Citizens, supra, 208 Cal.App.4th at p. 919.) We
distinguished Environmental Defense Project as an action for declaratory relief in which
the plaintiff was not seeking to invalidate or set aside the board’s adoption of the zoning
amendment, but was only seeking a judicial declaration that Sierra County’s “streamlined
zoning process,” of noticing board hearings on actions before its planning commission
made recommendations on those actions, violated the Planning and Zoning Law. (Rialto
Citizens, supra, at p. 920.)
III. DISCUSSION
A. Roberson Has Not Demonstrated Reversible Error
Roberson claims his petition to nullify and set aside the project approvals based on
the defect in the notice of the July 1 city council hearing was erroneously denied. He
argues this case differs from Rialto Citizens because here, “the appellate record contains
evidence of prejudice to [Roberson], and case law presumes substantial injury and the
[footnote continued from previous page]
(hereafter, error) as to any matter pertaining to petitions, applications, notices, findings,
records, hearings, reports, recommendations, appeals, or any matters of procedure subject
to this title, unless the court finds that the error was prejudicial and that the party
complaining or appealing suffered substantial injury from that error and that a different
result would have been probable if the error had not occurred. There shall be no
presumption that error is prejudicial or that injury was done if the error is shown.”
(Italics added.)
9
probability of a different result as a matter of law.” For the reasons we explain,
Roberson’s arguments fail to demonstrate reversible error.
First, as “evidence of prejudice,” Roberson points to his declaration in support of
his trial brief and petition, in which he averred that, “[h]ad [he] known about the
[planning commission’s] recommendation, [he] would have shared [his] views with the
city council and urged that it not approve the proposal—either by submitting written
comments or by attending the public hearing and testifying in person.” But as noted,
Roberson did not explain what comments or testimony he would have submitted to the
city council had he known of the planning commission’s recommendation to adopt the
project approvals. Moreover, the record is inadequate to support Roberson’s claim of
trial court error.
Roberson has a duty to provide an adequate record on appeal to support his claim
of error. (In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498.) In the absence of
an adequate record, the judgment is presumed correct. (Stasz v. Eisenberg (2010) 190
Cal.App.4th 1032, 1039.) “All intendments and presumptions are made to support the
judgment on matters as to which the record is silent.” (Cahill v. San Diego Gas &
Electric Co. (2011) 194 Cal.App.4th 939, 956.) Error must be affirmatively shown.
(Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140.)
The record on appeal is inadequate to show the trial court somehow erroneously
disregarded the “evidence of prejudice” in Roberson’s declaration or, more generally,
erroneously failed to find that the defective notice of hearing was prejudicial. Indeed, the
10
record is completely silent on why the court denied Roberson’s petition. The judgment
denying Roberson’s petition contains no factual findings, and Roberson’s appellant’s
appendix on appeal includes neither a copy of the trial court’s tentative decision, which
the trial court adopted as its order denying the petition, or a transcript of the April 2,
2009, court trial on Roberson’s petition.
But the administrative record before the trial court did show, and the court was
presumably well aware, that the attorneys for Rialto Citizens vigorously challenged the
project approvals on behalf of Rialto Citizens at the July 1 city council hearing. The
record before the trial court and on this appeal shows the attorneys for Rialto Citizens
presented a letter to the city council, which explained in a detailed attachment why the
project approvals violated CEQA, the Planning and Zoning Law, the Subdivision Map
Act (§ 66410 et seq.), and other laws. The attorneys also submitted an “opposition DVD”
for the city council’s consideration.
Again, the record on appeal does not indicate that Roberson ever explained to the
trial court what written comments or testimony he would have submitted at the July 1 and
15 city council hearings had he known of the planning commission’s recommendation to
adopt the project approvals. Nor does the record on appeal indicate that Roberson would
have submitted any evidence in opposition to the project approvals other than or in
addition to the evidence his attorneys submitted on behalf of Rialto Citizens.
Thus, on this record, Roberson did not demonstrate to the trial court that the defect
in the notice of the July 1 city council hearing was prejudicial, resulted in substantial
11
injury to Roberson, or that a different result was probable absent the defect in the notice.
(§ 65010, subd. (b).) To the contrary, ample evidence supports the trial court’s implied
finding—implied in the judgment denying the petition—that the defect in the notice was
not prejudicial, did not result in substantial injury to Roberson, and that a different result
was not probable if the defect had not occurred. (Ibid.) Even though this court’s July
2012 decision in Rialto Citizens was issued after the April 2009 court trial on Roberson’s
petition, we presume the trial court was aware of the factual findings it was required to
make under section 65010, subdivision (b) in order to invalidate the project approvals.
(Rialto Citizens, supra, 208 Cal.App.4th at pp. 916-921.)
We also disagree with Roberson’s assertion that “case law presumes substantial
injury and the probability of a different result as a matter of law.” This proposition is
contrary to the language of section 65010, subdivision (b) and is unsupported by the
cases Roberson cites in its support. The statute states: “There shall be no presumption
that error is prejudicial or that injury was done if the error is shown” (§ 65010, subd. (b),
italics added), and requires the court to make findings of prejudice, substantial injury to
the complaining party, and a probability of a different result absent the error, before it
may invalidate or set aside an action undertaken by a legislative body under the Planning
and Zoning Law (here, the city council’s project approvals).
Sounhein v. City of San Dimas (1992) 11 Cal.App.4th 1255 does not assist
Roberson’s argument. There, the City of San Dimas did not give any notice of hearing
and even failed to hold any public hearing on its enactment of a zoning ordinance. (Id. at
12
pp. 1259-1260.) Sounhein concluded that failure to provide notice or hold a hearing
“cannot be deemed harmless or nonprejudicial” under section 65010, subdivision (b),
given that the omissions were “not a mere minor technical defect [citations], but rather
the process was fundamentally flawed by the complete omission of any public notice or
hearings . . . .” (Id. at pp. 1260-1261.) Here, the defect in the notice at issue was minor
and technical; it failed to include the planning commission’s recommendations on the
project approvals. And here, prejudice was not shown.
Roberson also relies on this court’s observation in Taschner v. City Council (1973)
31 Cal.App.3d 48 [Fourth Dist., Div. Two]: “Where interested persons have been denied
notice and opportunity to have their claims, suggestions and welfare considered by a
planning commission or a legislative body in connection with a contemplated zoning
action, it is reasonable to conclude that a different result would have been probable had
such notice and opportunity to be heard been afforded.” (Id. at p. 64, applying former
§ 65801, predecessor to § 65010, subd. (b).) Like Sounhein, Taschner is distinguishable
because it involved no notice and no public hearing, rather than a minor, technical defect
in the notice of hearing. Taschner involved a challenge to the validity of building height
limit ordinance enacted by a general city law through the initiative process, rather than in
accordance with noticed hearing procedures of the Planning and Zoning Law and due
process. (Taschner v. City Council, supra, at pp. 53-54, 63-65.) This court explained
that the initiative process did not afford persons affected by the ordinance “a full and fair
hearing on the merits of their respective claims,” and, unlike the noticed hearing process
13
under the Planning and Zoning Law, did not allow the legislative body to modify the
ordinance to account for the suggestions of persons individually affected by the
ordinance. (Id. at p. 64.) Thus, in Taschner, it was reasonable to conclude that a
different result was probable (e.g., a more narrowly drawn ordinance may have been
adopted) had the public been afforded notice and an opportunity to be heard on the
ordinance. (Id. at pp. 64-65.)
The two other cases Roberson relies on are similarly distinguishable. (Scott v.
City of Indian Wells (1972) 6 Cal.3d 541, 550 [prejudice presumed when entire class of
affected landowners were not given notice of a hearing on zoning amendments affecting
their properties]; City of Sausalito v. County of Marin (1970) 12 Cal.App.3d 550, 559,
567 [“substantive defect” in rezoning an area by resolution rather than by ordinance was
jurisdictional, not “a procedural defect” which could be deemed harmless under former
§ 65801, predecessor to § 65010, subd. (b)].)
Finally, Roberson faults real parties for failing to bring section 65010, subdivision
(b) to the trial court’s attention, and claims real parties have therefore waived any claim
that the defect in the notice was prejudicial, caused substantial injury to Roberson, or that
a different result was probable absent the error. (§ 65010, subd. (b).) We rejected the
same argument in Rialto Citizens. (Rialto Citizens, supra, 208 Cal.App.4th at p. 920.)
Just as it was Rialto Citizens’s burden to make the required factual showings in Rialto
Citizens, it was Roberson’s burden to make the factual showings here, and on this record
he did not do so.
14
B. Roberson’s Defective Notice Claim is Barred by Res Judicata
The doctrine of res judicata bars a party and persons in privity with that party from
relitigating a claim following a final judgment on the merits of the claim. “‘“The
prerequisite elements for applying the doctrine to either an entire cause of action or one
or more issues are the same: (1) A claim or issue raised in the present action is identical
to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a
final judgment on the merits; and (3) the party against whom the doctrine is being
asserted was a party or in privity with a party to the prior proceedings. [Citations.]”’
[Citation.]” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.)
Real parties claim Roberson’s defective notice claim is barred by res judicata
because the same claim was litigated in Rialto Citizens; Rialto Citizens resulted in an
adverse, final judgment on the claim, and Roberson is in privity with Rialto Citizens.
Roberson concedes that Rialto Citizens resulted in a final, adverse judgment on the merits
of Rialto Citizens’s defective notice claim, but he argues his defective notice claim is
different and he is not in privity with Rialto Citizens. For the reasons we explain, we
conclude that Roberson’s defective notice claim is identical to the defective notice claim
raised in Rialto Citizens, and Roberson is in privity with Rialto Citizens.
1. The Defective Notice Claims are Identical
Roberson argues his defective notice claim differs from Rialto Citizens because he
did not have an opportunity to address the city council on the project approvals, while
Rialto Citizens did participate in the July 1 city council hearing. Therefore, he argues,
15
“[his] claim could not include the same prejudice issue” as Rialto Citizens’s defective
notice claim.
On this record, Roberson’s claim that his defective notice claim “could not include
the same prejudice issue” is completely devoid of substance. Indeed, Roberson’s
defective notice claim is identical in all respects to the defective notice claim raised by
Rialto Citizens in Rialto Citizens: both claims sought to invalidate the project approvals
because the notice of the July 1 city council hearing did not indicate that the planning
commission was recommending that the city council adopt the project approvals. (Rialto
Citizens, supra, 208 Cal.App.4th at pp. 916-921.)
And as discussed, Roberson never explained to the trial court what comments or
testimony he would have submitted to the city council in opposition to the project
approvals had he known of the planning commission’s recommendations and attended
the July 1 hearing. Nor did Roberson explain what he would have presented to the city
council in opposition to the project approvals, other than or in addition to the comments
and lengthy analysis presented by representatives of Rialto Citizens at the July 1 hearing.
Finally, the notice of the July 1 hearing fully informed the public that the city council
would be considering the project approvals, and identified each project approval under
consideration, even though the notice did not include the planning commission’s
recommendations.
In sum, just as Roberson’s claim that he was somehow prejudiced by the defective
notice of the July 1 hearing is completely devoid of substance, his claim that “his”
16
prejudice differed from Rialto Citizens’s undemonstrated prejudice is equally devoid of
substance.
2. Roberson is in Privity with Rialto Citizens
(a) The Concept of Privity
“‘The concept of privity . . . refers “to a mutual or successive relationship to the
same rights of property, or to such an identification in interest of one person with another
as to represent the same legal rights . . . and, more recently, to a relationship between the
party to be estopped and the unsuccessful party in the prior litigation which is
‘sufficiently close’ so as to justify application of the doctrine of collateral estoppel.”’
[Citations.]
“‘In the final analysis, the determination of privity depends upon the fairness of
binding [a party to the present proceeding] with the result obtained in earlier proceedings
in which it did not participate. . . . “‘Whether someone is in privity with the actual parties
requires close examination of the circumstances of each case.’”’ [Citations.] [¶] ‘“‘This
requirement of identity of parties or privity is a requirement of due process of law.’ . . .
‘Due process requires that the nonparty have had an identity or community of interest
with, and adequate representation by, the . . . party in the first action.’”’ [Citations.]
“‘A party is adequately represented for purposes of the privity rule “if his or her
interests are so similar to a party’s interest that the latter was the former’s virtual
representative in the earlier action. . . .” . . . We measure the adequacy of “representation
by inference, examining whether the . . . party in the suit which is asserted to have a
17
preclusive effect had the same interest as the party to be precluded, and whether that . . .
party had a strong motive to assert that interest. If the interests of the parties in question
are likely to have been divergent, one does not infer adequate representation and there is
no privity. . . . If the . . . party’s motive for asserting a common interest is relatively weak,
one does not infer adequate representation and there is no privity.”’ [Citation.]”
(Gottlieb v. Kest (2006) 141 Cal.App.4th 141, 149-150.)
(b) Analysis
Roberson maintains he is not in privity with Rialto Citizens because he brought his
petition “in his own interest,” while Rialto Citizens challenged the project approvals on
public interest grounds. He claims Rialto Citizens sought to vindicate public interests by
challenging the project approvals based on the defective notice, while “he only allege[d]
harm to himself.” But Roberson never explained to the trial court what “harm to himself”
he was seeking to prevent by challenging the project approvals based on the defective
notice, and his declaration shows he was seeking to vindicate the same public interests
Rialto Citizens was seeking to vindicate, not his private interests.
As we recognized in Rialto Citizens, Rialto Citizens is a nonprofit mutual benefit
corporation “formed for the purpose of promoting ‘social welfare through advocacy for
and education regarding responsible and equitable environmental development.’” (Rialto
Citizens, supra, 208 Cal.App.4th at p. 915.) By its writ petition in Rialto Citizens, Rialto
Citizens sought to “enforce the City’s public duties to comply with CEQA and the
Government Code in considering” the project approvals. (Ibid.)
18
In his petition Roberson averred he is “a natural person who resides in the City of
Rialto,” around three miles from the proposed Wal-Mart Supercenter, and he regularly
drove through the intersections near the project site. And in his declaration in support of
his trial brief, Roberson effectively admitted he was seeking to vindicate a public interest,
not a private one, by challenging the project approvals based on the defective notice of
hearing. He averred: “I regularly read local and regional newspapers like the San
Bernardino County Sun in order to find out what is happening in and around my
community. Matters in the public sphere and in the private sphere are of interest to me.
Among the matters that interest me in the public sphere are the hearings by the City of
Rialto’s city council . . . . [¶] . . . I am opposed to the proposed Wal-Mart Supercenter
because in my view it is likely to harm the community and should not have been
approved, but I am even more troubled by the City’s failure to follow the procedures that
the law requires for giving consideration to such proposals in the first place. . . .” (Italics
added.)
Roberson’s declaration completely belies his claim that he brought his petition in
his own interest rather than the public interest. Indeed, his declaration shows he
challenged the project approvals based on the defective notice because the project was
“likely to harm the community” and in order to vindicate the public’s interest in seeing
that the City followed “the [noticed hearing] procedure that the law requires.” There is
no mention anywhere in the record of any harm Roberson would have suffered “to
19
himself” as a result of defective notice or the project approvals that differs in any respect
from any alleged harm to the community or the public.
Thus, the record on appeal and our decision in Rialto Citizens shows Roberson
“‘“‘had an identity or community of interest with, and adequate representation by’”’”
Rialto Citizens on his defective notice claim, both during the July 2008 city council
hearings and in the Rialto Citizens action. (Gottlieb v. Kest, supra, 141 Cal.App.4th at p.
150; see also Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011)
197 Cal.App.4th 282, 298-299 [two parties asserting public interest claims against same
project concerning enforcement of CEQA in privity for res judicata purposes]; Citizens
for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1070-1071
[“public interest” group in privity with “state agencies responsible for representation of
the public interest” in the same dispute].)
C. The Motion to Dismiss and Motion for Sanctions are Denied
Lastly, we address real parties’ motion to dismiss Roberson’s appeal as frivolous
and dilatory, or as solely intended to cause delay, and their related motion for $12,860 in
sanctions, the amount of their attorney fees incurred in opposing Roberson’s appeal. (In
re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 516 [“California courts have
the inherent power to dismiss frivolous appeals”]; Code Civ. Proc., § 907 [“When it
appears to the reviewing court that the appeal was frivolous or taken solely for delay, it
may add to the costs on appeal such damages as may be just”]; Cal. Rules of Court, rule
20
8.276(a)(1) [authorizing sanctions against party or attorney for taking frivolous appeal or
appealing solely to cause delay].)
We deny the motion to dismiss and the related motion for sanctions, even though
we believe the issue is a close one. “‘[A]n appeal should be held to be frivolous only
when it is prosecuted for an improper motive—to harass the respondent or delay the
effect of an adverse judgment—or when it indisputably has no merit—when any
reasonable attorney would agree that the appeal is totally and completely without merit.’”
(Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 790, fn. 6.)
As we have discussed, Roberson did not designate an adequate record on appeal to
support his claim that the trial court somehow erroneously disregarded his so-called
“evidence of prejudice,” namely, that he would have presented written comments or
testimony at the July 1 city council hearing in opposition to the project approvals had he
known of the planning commission recommendations. He claims he did not present any
input to the city council because he did not know of the planning commission
recommendations, but he never explained what input that would have been, or whether it
would have differed in respect from the lengthy analysis Rialto Citizens submitted in
opposition to the project approvals at the July 1, 2008, city council hearing.
Nonetheless, we are reluctant to conclude that Roberson’s appeal from the
judgment denying his petition to set aside the project approvals based on the defective
notice of hearing is frivolous or was intended solely to delay the finality of the judgment
in this action. The declarations in opposition to the motions show, and real parties do not
21
dispute, that Roberson is not and has never been a member of Rialto Citizens. We also
believe reasonable attorneys could agree that, as a private citizen and resident of the City
at the time of the July 1 and 15 city council hearings,7 Roberson had every right to
petition the trial court to set aside the project approvals based on the defective notice,
independently of Rialto Citizens’s petition, even though Roberson’s private interests in
the project approvals were no different from the public interests Rialto Citizens was
seeking to vindicate in its petition. We also believe reasonable attorneys could agree that
7 On April 1, 2014, real parties filed a second motion to dismiss Roberson’s
appeal on the ground he lacks standing to appeal and his appeal is moot, because he no
longer lives in the City of Rialto and therefore lacks a beneficial interest in the project
approvals. (See Rialto Citizens, supra, 208 Cal.App.4th at p. 913 [as a general rule, legal
standing to petition for writ of mandate requires petitioner to have beneficial interest in
writ’s issuance, but petitioner who is not beneficially interested may nevertheless have
public interest standing under the public interest exception to the beneficial interest
requirement]; Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th
1559, 1574 [pivotal question in determining whether case is moot is whether court can
grant plaintiff any effectual relief].) Real parties also request that we take judicial notice
of a “trust transfer deed” and other documents indicating Roberson relocated to
Beaumont in September 2013, after Roberson filed the present appeal.
In opposition to the motion, Roberson admits he “recently” changed his place of
residence from Rialto to Beaumont, but argues he nevertheless has a beneficial interest in
the project approvals because his office is located “less than half a mile” from the project
site, and he has to “drive or walk by [the project site] more frequently today than [he] did
when [his] lawsuit was filed.”
It is unnecessary to address the merits of real parties’ second motion to dismiss
based on Roberson’s current lack of standing to appeal or the related request for judicial
notice. For the reasons discussed, Roberson has not demonstrated reversible error, and
his defective notice claim, which in the trial court was based squarely on the project
approvals’ “likely . . . harm to the community,” and not on any distinct, personal harm to
Roberson, is barred by the doctrine of res judicata. (See also Braude v. City of Los
Angeles (1990) 226 Cal.App.3d 83, 88-89 [beneficial interest standing must be based on
interest not held in common with public at large].)
22
the present appeal may have had some merit, simply because Roberson is a private
citizen and not a member of Rialto Citizens.
Furthermore, the declaration of attorney Cory J. Briggs shows, and real parties do
not dispute, that real parties submitted but promptly withdrew a proposed judgment
denying Roberson’s petition, shortly after the April 2, 2009, court trial on the petition.
Real parties withdrew that proposed judgment because they and Roberson agreed to wait
until the judgment in Rialto Citizens was final before real parties submitted their
proposed judgment denying Roberson’s petition. Thus, it appears that real parties share
responsibility for the four-year delay in the entry of the judgment in this action and the
concomitant delay in resolving the present appeal.
IV. DISPOSITION
The judgment is affirmed. Respondents and real parties shall recover their costs
on appeal. (Cal. Rule of Court, rule 8.278(a)(2), (d).)
KING
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
23
Filed 6/17/14
COURT OF APPEAL -- STATE OF CALIFORNIA
FOURTH DISTRICT
DIVISION TWO
ORDER
MARCUS L. ROBERSON,
E058187
Plaintiff and Appellant,
(Super.Ct.No. CIVSS814327)
v.
The County of San Bernardino
CITY OF RIALTO,
Defendant and Respondent;
WAL-MART REAL ESTATE BUSINESS
TRUST et al.,
Real Parties in Interest and
Respondents.
THE COURT
A request having been made to this Court pursuant to California Rules of Court,
rule 8.1120(a), for publication of a nonpublished opinion heretofore filed in the above
entitled matter on May 21, 2014, and it appearing that the opinion meets the standard for
publication as specified in California Rules of Court, rule 8.1105(c),
IT IS ORDERED that said opinion be certified for publication pursuant to
California Rules of Court, rule 8.1105(b).
KING
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
1
2
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602 F.Supp. 541 (1984)
Gordon C. BRAZIER, Jr., Plaintiff,
v.
TRAVELERS INSURANCE COMPANY, Defendant.
Civ. A. No. C84-1550A.
United States District Court, N.D. Georgia, Atlanta Division.
November 2, 1984.
*542 J. Calloway Holmes, Jr., Cedartown, Ga., for plaintiff.
Bryan F. Dorsey, Atlanta, Ga., for defendant.
ORDER OF COURT
HORACE T. WARD, District Judge.
This is an action alleging fraud, deceit, conversion, abuse of process, intentional infliction of emotional distress, and/or misrepresentation arising out of defendant's cessation and withholding of plaintiff's workers' compensation benefits. The defendant has moved to dismiss this action pursuant to Rule 12(b)(6), contending that plaintiff has failed to state a claim upon which relief can be granted. The gist of defendant's argument is that the Georgia workers' compensation system, as administered by the State Board of Workers' Compensation, provides the exclusive remedy for plaintiff's claim and that resort to this court is improper.[1] This case raises important questions of law which the courts of the state of Georgia have not as yet addressed. For the reasons which follow, the court has concluded that defendant's motion to dismiss must be DENIED.
BACKGROUND
Defendant Travelers Insurance Company ("Travelers") is the workers' compensation carrier for Goodyear Tire and Rubber Company ("Goodyear"). The plaintiff, Gordon C. Brazier, was formerly employed by Goodyear. In December 1981, while working for Goodyear in its Cedartown, Georgia plant, Brazier sustained a work-related injury. Thereupon Travelers began paying $115.00 weekly compensation to the plaintiff as disability benefits without the necessity of an award by an administrative law *543 judge for the State Board of Workers' Compensation or any settlement of the claim.
In September 1982, a portion of plaintiff's benefits were garnished, pursuant to a "continuing garnishment" proceeding,[2] to satisfy a judgment against him. Travelers was ordered by the Superior Court of Polk County (Georgia) to pay one half of plaintiff's workers' compensation benefits payable between August 13 and September 21, 1982 into the court to be applied to a judgment for alimony or child support against plaintiff and in favor of his former wife. Travelers paid the remaining one-half of the weekly benefits ($57.50) to the plaintiff. Apparently, this arrangement (one-half of plaintiff's benefits to the Polk County Court and one-half to plaintiff) continued until June 1983. In July 1984, plaintiff filed this action in the Superior Court of DeKalb County (Georgia). Travelers subsequently removed the case to this court and filed its motion to dismiss.
In his complaint, plaintiff alleges several claims, each sounding in tort, arising out of the alleged wrongful "reduction" of his workers' compensation benefits by the defendant. Plaintiff claims that defendant wilfully failed, in its fiduciary duty to him, to file a proper response and raise available defenses to the garnishment proceedings. Complaint at ¶ 4. Plaintiff further alleges that, even if his workers' compensation benefits were the proper subject of a continuing garnishment, Travelers intentionally continued to withhold and convert half of his weekly benefits beyond the expiration of the 179-day limit on continuing garnishment imposed by statute. Complaint at ¶¶ 7-9. Moreover, plaintiff claims, defendant "abused the process of Polk Superior Court by serving a copy of the [garnishment] Order of September 21, 1982 on the plaintiff on February 15, 1983 as a fraudulent misrepresentation of lawful justification for continuing to withhold his lawful monies from him." Complaint at ¶ 9. Finally, plaintiff alleges that defendant's intentional misconduct caused plaintiff to suffer emotional distress and placed him in such a detrimental financial position that he was subject to foreclosure proceedings. Complaint at ¶ 11. Plaintiff seeks $2,357.50 for reimbursement of the amount withheld and $100,000 for exemplary damages. Complaint at ¶¶ 10, 13. Defendant's motion to dismiss raises the issue of whether the Georgia workers' compensation statute provides the sole remedy for intentional tortious conduct arising out of the cessation or withholding of workers' compensation by a compensation insurer or whether such a claim may be prosecuted as a common law tort action.
DISCUSSION
I.
The Georgia Worker's Compensation Act, O.C.G.A. § 34-9-1 et seq., is "the Georgia statutory scheme which provides compensation to employees who are the victims of work related injury, disease or death." 29 Encyclopedia of Georgia Law, Workers' Compensation § 1 (1980). Like workers' compensation acts throughout the country, the Georgia statute represents an important historic compromise: the employee has given up her right to sue at common law for workplace injury, and the employer has given up her right to assert various common law defenses. The Act provides, in relevant part:
The rights and the remedies granted to an employee by [the Workers' Compensation Act] shall exclude all other rights and remedies of such employee ...; provided, however, that no employee shall be deprived of any right to bring an *544 action against any third-party tort-feasor, other than ... any person who, pursuant to a contract or agreement with an employer, provides workers' compensation benefits to an injured employee, notwithstanding the fact that no common-law master-servant relationship or contract of employment exists between the insured employee and the person providing the benefits.
O.C.G.A. § 34-9-11. The Georgia act, then, is designed to provide the exclusive remedy against an employer for injuries by accident arising out of and in the course of employment. Allied Chemical Corp. v. Peacock, 151 Ga.App. 278, 259 S.E.2d 681 (1979). The Workers' Compensation Act, thereby bars all suits at common law brought by an employee against her employer for workplace accidents covered by the terms of the statute. A court of law simply does not have jurisdiction over claims which are covered by the provisions of the workers' compensation law because an injured workers' remedies are limited to those set forth in the detailed provisions of the Act. The question raised by the instant case is whether a workers' compensation insurance carrier which engages in conduct which rises to the level of actionable fraud, deceit, misrepresentation, abuse of process, intentional infliction of emotional distress and/or conversion in regard to the withholding of compensation benefits which it was obligated to pay and had been paying,[3] may be sued at law, or whether the exclusive remedy for injury caused by such conduct is in accordance with the statutory remedy provided in the Workers' Compensation Act.
Defendant Travelers was the Goodyear Tire and Rubber Company's compensation insurer at all times relevant to the facts giving rise to the instant claim. It did not act in any capacity in its relationship with Goodyear other than to provide workers' compensation insurance to the employer. Nothing in the complaint or plaintiff's response to defendant's motion to dismiss indicates otherwise. In Georgia, a workers' compensation insurer enjoys the same immunity from common law tort action as the employer. See O.C.G.A. § 34-9-1(3); Sims v. American Casualty Co., 131 Ga. App. 461, 206 S.E.2d 121, aff'd sub nom. Providence Washington Ins. Co. v. Sims, 232 Ga. 787, 209 S.E.2d 61 (1974). In order for the instant action against this insurer to be maintainable, then, it must be found that plaintiff is seeking redress for an injury which falls outside the scope of the Workers' Compensation Act and therefore is not subject to the bar to common law action imposed by O.C.G.A. § 34-9-11.
It is, of course, axiomatic that "[t]he exclusivity of the Act is irrelevant to causes of action which are not covered by it." Reed v. Hartford Accident & Indemnity Co., 367 F.Supp. 134, 135-36 (E.D.Pa. 1973). To a large extent, the scope of the exclusive remedy in Georgia is governed by O.C.G.A. § 34-9-1(4), the pertinent portion of which defines injury compensable under the Act as "injury by accident arising out of and in the course of the employment." *545 The term "accident" has been held to encompass intentional torts. See Burbank v. Mutual of Omaha Ins. Co., 484 F.Supp. 693 (N.D.Ga.1979), aff'd, 616 F.2d 565 (5th Cir.1980); Southern Wire & Iron, Inc. v. Fowler, 217 Ga. 727, 124 S.E.2d 738 (1962). However, not every injury, much less every intentional tort committed by an employer against an employee, is necessarily covered by the terms of the Act. See Smith v. Rich's Inc., 104 Ga.App. 883, 123 S.E.2d 316 (1961) (employee's action against employer for false imprisonment not barred by compensation statute); Skelton v. W.T. Grant Co., 331 F.2d 593 (5th Cir.1964) (employee's action against employer for false arrest and illegal detention not barred by Georgia Workmen's Compensation Act).
An injury by accident compensable through workers' compensation must "arise out of" the employment. This means that there must be some appropriate causal connection between the employment and the injury. See Helton v. Interstate Brands Corp., 155 Ga.App. 607, 271 S.E.2d 739 (1980); State Dept. of Labor v. Yates, 131 Ga.App. 71, 205 S.E.2d 36 (1974). In addition to this causal connection, an independent requirement is that the compensable injury must "arise in the course of" the employment. This requirement is understood to refer to the time, place, and circumstances of the injury; an accident arises in the course of the employment when it occurs within the period of employment at a place where the employee may reasonably be in the performance of her duties and while she is fulfilling those duties. See New Amsterdam Casualty Co. v. Sumrell, 30 Ga.App. 682, 118 S.E. 786 (1923).
II.
There is no case in Georgia which addresses the question of whether an injury caused by intentional termination or disruption of the payment of compensation benefits by an insurer is actionable despite the exclusive remedy provision of the Act. In Stafford v. Westchester Fire Ins. Co. of N.Y., Inc., 526 P.2d 37 (Alaska 1974), the plaintiff alleged that the insurance carrier did more than delay payment of his workers' compensation benefits; he alleged, just as the plaintiff does here, that the carrier intentionally and maliciously misled him about his right to compensation and discouraged him from exercising that right, resulting in emotional injury. The Supreme Court of Alaska became the first court to hold that where there is intentional tortious conduct by a workers' compensation carrier which goes beyond the bounds of untimely payments, the immunity from suit provided by the workers' compensation law is lost. Id. at 43-44.
Several states have followed the lead of the Alaska court. See 2A Larson, Workmen's Compensation Law § 68.34(c) at 13-74 n. 49.20 (1983) (collecting cases). In Coleman v. American Universal Insurance Co., 86 Wis.2d 615, 273 N.W.2d 220 (1979), the Supreme Court of Wisconsin, after noting that the principle of exclusivity of the workers' compensation remedy is firmly entrenched in Wisconsin law, concluded that the state workers' compensation act does not bar a common law action against a compensation insurer for the intentional tort of bad faith for failure to honor or pay a compensation claim. The court reasoned that the injury sustained by the plaintiff-worker due to the alleged bad-faith conduct of the defendants did not meet the statutory definition of a compensable injury:
Moreover, the event the alleged intentional and malicious withholding of compensation payments which caused the injury did not arise out of the employment but occurred long after the employment had ceased and had its genesis in conduct by the insurer that arose not out of the employment but out of the contractual obligation of the insurer to pay.
The injury for which remedy is sought in the instant case is the emotional distress and other harm caused by the defendants' intentional acts during the investigation and during the course of payment of the claim. This claimed injury *546 was distinct in time and place from the original on-the-job physical injury which was subject to the Compensation Act. The injury for which recovery is sought in the present actions did not occur while the plaintiff was employed or while he was performing services growing out of and incidental to his employment. As the plaintiff repeatedly and correctly stresses in his brief, this action is based not on the original work-related injury but on a second and separate injury resulting from the intentional acts of the insurer and its agents while investigating and paying the claim. The Act does not cover the alleged injury, and the exclusivity provision does not bar the claim.
273 N.W.2d at 223 (emphasis added). The court went on to reject, as spurious, the argument that the second injury (arising from the intentional withholding of benefits) should be reviewed as merely an extension or aggravation of the prior work-related injury as such reasoning "relies on an extended `but for' analysis that leads to preposterous results." Id. at 223.
In Gibson v. National Ben Franklin Ins. Co., 387 A.2d 220 (Me.1978), the plaintiff brought suit against her employer's workers' compensation carrier seeking damages that she claimed resulted from its termination of benefit payments, including payment of medical expenses. The defendant insurer asserted that dismissal of the claim was required because the Maine Workmen's Compensation Act provided an exclusive remedy. The Supreme Judicial Court of Maine, after noting that under the Maine compensation statute (just as under the Georgia law) an "employer" includes the employer's compensation carrier for most purposes, concluded that the insurer's argument was not persuasive. In reasoning similar to that put forth by the Court in Coleman, the Gibson Court pointed out:
the case arises not out of appellant's original employment relationship but out of her relationship to the insurance carrier after her basic remedies as an injured employee had been settled through procedures provided by the Act. The severe mental distress she alleges as the injury resulting from appellees' actions was not an injury "arising out of the employment" within the meaning of the Act. Her complaint may be deemed to allege that appellant had pursued her remedies under the Act and that the appellees had willfully deprived her of the benefits she had become entitled to under an approved compensation agreement. The status she asserts is not that of employee seeking a remedy against her employer but of a compensation claimant with established remedial rights.
387 A.2d at 222 (emphasis added).
In other cases raising the issue after Stafford, and perhaps the majority of such cases, for one reason or another, a cause of action was held not to lie. See 2A Larson, supra, § 68.34(c) at 13-72 n. 49.19 (collecting cases). In Sandoval v. Salt River Project Agricultural Improvement & Power District, 117 Ariz. 209, 571 P.2d 706 (Ariz.App.1977), the Court of Appeals of Arizona held that "where the essence of the claim is the alleged wrongful deprivation of benefits, the Industrial Commission (Arizona's equivalent of Georgia's State Board of Workers' Compensation) has the exclusive jurisdiction to adjudicate that controversy." 571 P.2d at 712. Although the complaint alleged, among other things, intentional breach of fiduciary duty, false representations, outrageous conduct, and intentional infliction of mental suffering, the court specifically rejected the conclusion of the Alaska Supreme Court in Stafford "as contrary to the basic philosophy" of the Arizona workers' compensation system. Id. However, it should be noted that the Sandoval court never considered the rationale upon which the Wisconsin and Maine courts concluded that their states' workers' compensation statutes would not prevent a common law tort action under the facts alleged. Similarly, in Young v. United States Fidelity & Guaranty Co., 588 S.W.2d 46 (Mo.App.1979), the Missouri Court of Appeals reached the same conclusion, refusing to permit a tort action challenging *547 the insurer's alleged bad faith refusal to pay further compensation benefits. The Missouri court, however, seems to have rested its conclusion in large part on several features of the Missouri Workmen's Compensation Act not present in Georgia law. Id. at 48.
III.
While the court recognizes the vital purpose of the Workers' Compensation Act and the important role played by the exclusivity concept in effectuating the statute's remedial goals, the court is persuaded by the reasoning of the Stafford, Coleman, and Gibson courts that intentional tortious conduct related to the disruption of the payment of workers' compensation benefits neither "arises out of" nor "arises in the course of" the employee's employment within the meaning of those phrases in the Georgia Workers' Compensation Act. A noted commentator has pointed out that "cases involving allegations of deceit, fraud, and false representation can best be sorted out by distinguishing those in which the deceit precedes and helps produce the injury, and those in which the deceit follows the injury and produces a second injury or loss." 2A Larson, supra, § 68.32 at 13-45. Plaintiff's allegations in the instant case place it squarely among the latter type of case wherein the exclusive remedy provision generally presents less of an obstacle to the maintenance of a common law tort action.
Injury caused by conduct such as that alleged in the instant case cannot be said to "arise out of" employment because the causal connection to the workplace accident is unduly attenuated. Unless causation-in-fact is to be extended beyond any reasonable limit contemplated by the concept, it cannot be said that injury caused by the intentional conduct of a compensation carrier subsequent to a workplace accident, conduct alleged to involve fraud, misrepresentation, or intentional infliction of emotional distress, realistically constitutes "injury by accident arising out of ... the employment." Moreover, the conduct by the defendant which plaintiff complains of and the resulting injury herein alleged cannot be said to have occurred "in the course of" employment as the time, place and circumstances of plaintiff's alleged injury by misrepresentation exhibit no connection to his work at Goodyear. In fact, the alleged misrepresentation which forms the basis of plaintiff's claimed injury came about more than one month after plaintiff's employment with Goodyear was terminated and therefore cannot realistically constitute "injury by accident arising ... in the course of the employment."
IV.
Although defendant did not argue that the "penalty provision" in Georgia's Workers' Compensation Act, O.C.G.A. § 34-9-221, requires this court to conclude that the legislature adequately provided a remedy for the wrongs alleged by plaintiff, this court will address the argument, as it has been, at least in part, the basis for court decisions in other jurisdictions denying the relief claimed by plaintiff in the instant case. See, e.g., Hicks, supra, 33 Ill.Dec. 686-687, 397 N.E.2d at 19-20. The relevant statutory provisions regarding payment of workers' compensation benefits read as follows:
(a) Income benefits shall be paid periodically, promptly, and directly to the person entitled thereto, without an award, except where liability is controverted by the employer.
(b) The first payment of income benefits shall become due on the fourteenth day after the employer has knowledge of the injury or death, on which day all income benefits then due shall be paid....
....
(c) If any income benefits payable without an award are not paid within 14 days after becoming due, there shall be added to the accrued income benefits an amount equal to 15 percent thereof, which shall be paid at the same time as, but in addition to, the accrued income *548 benefits unless notice is filed under subsection (d) of this Code section or unless this nonpayment is excused by the board after a showing by the employer that owing to conditions beyond control of the employer the income benefits could not be paid within the period prescribed.
....
(j) The board or any administrative law judge shall issue such orders as may be necessary to enforce the penalty provisions of this Code section.
O.C.G.A. § 34-9-221. See also, O.C.G.A. § 34-9-108(b)(2) (authorizing State Board of Workers' Compensation to award attorneys' fees and costs to enforce rights under § 34-9-221 where employer has failed to comply without reasonable grounds). Termination of benefits due a claimant without reason has been held to justify the imposition of a 15% penalty assessment by the State Workers' Compensation Board on the overdue benefits under § 34-9-221(e). See Sadie G. Mays Memorial Nursing Home v. Freeman, 163 Ga.App. 557, 295 S.E.2d 340 (1982).
Initially, it should be noted that when a penalty has been built into a compensation act to cover employer misconduct, the boundaries of the general exclusivity principle are often expanded to take in that conduct. See Larson, supra, § 69.30 at 13-130. Inspite of this general approach, in each case relied on above permitting a cause of action for tortious conduct related to the withholding of compensation benefits, the court held that the action could be maintained notwithstanding a penalty provision which would apply to the circumstances before the court.
Thus, in Stafford, the Alaska court held that the penalty provision for failure to pay (a provision strikingly similar to that in O.C.G.A. § 34-9-221) does not provide the sole remedy available to an employee where the tortious conduct involved goes beyond the bounds of untimely payments. 526 P.2d at 43-44. Likewise, in Coleman, the Wisconsin Supreme Court expressed the view that "a [statutory] penalty for delayed worker's compensation payments does not preclude a cause of action for the intentional tort of bad faith for failure to honor or pay the claim," and held that the penalty provision did not bar the additional remedy at common law for intentional wrongdoing which goes beyond the mere late payment of benefits. 273 N.W.2d at 224.
The Georgia courts have not interpreted O.C.G.A. § 34-9-221 in the circumstances of the facts alleged in the instant case. In Sadie G. Mays Memorial Nursing Home v. Freeman, supra, the Georgia Court of Appeals did not address the issue of whether the availability of statutory penalties would preclude a compensation claimant from obtaining relief through a common law action for intentional tortious conduct related to the nonpayment of benefits. Finding the reasoning of the Stafford and the Coleman courts to be persuasive, this court is of the view that the Georgia penalty provision will not preclude plaintiff from maintaining his claim for damages. Much of this conclusion, of course, is properly intertwined with the view that plaintiff's claim, being one for intentional wrongdoing and not for compensation, is not controlled by the provisions of the state workers' compensation act in the first place.
CONCLUSION
The court has given careful consideration to defendant's argument that the provisions of the Georgia Workers' Compensation Act, O.C.G.A. §§ 34-9-1 et seq., preclude the plaintiff from pursuing an action at law for injury arising out of alleged misrepresentations and/or other intentional misconduct in connection with the payment and withholding of workers' compensation benefits by a compensation insurer. The courts of Georgia have not yet addressed the important issues raised by this litigation. In the absence of such guidance, this court should not construe the Georgia statute as being designed to deprive an employee of any common law action which she might otherwise have against her "employer," *549 unless the action which she seeks to assert is one for an injury as to which relief has actually been granted under the compensation laws. Skelton, 331 F.2d at 595. Thus, where, as here, the alleged intentional wrongdoing and injury arises not out of employment or in the course of an ongoing employment relationship but instead arises subsequent to and independent of any employment relationship, a claim which seeks to redress such injury is not barred by the Georgia workers' compensation laws. Accordingly, defendant's motion to dismiss for failure to state a claim upon which relief can be granted (or for lack of subject matter jurisdiction) is hereby DENIED.
NOTES
[1] Although cast as a motion to dismiss under 12(b)(6) for failure to state a claim upon which relief can be granted, defendant's arguments that the state workers' compensation system provides the plaintiff with the sole remedy for his claims and that the plaintiff has therefore failed to exhaust his administrative remedies indicate to the court that defendant's motion is probably better brought pursuant to Rule 12(b)(1). The defendant does not, at this point, challenge the legal sufficiency of plaintiff's tort claims themselves; rather defendant argues that this court is without jurisdiction to adjudicate a cause of action sounding in tort against a workers' compensation insurance carrier based on a failure to pay benefits as alleged in the instant case. In other words, defendant argues that remedy for plaintiff's claim lies elsewhere. Accordingly, the motion will be treated as a motion to dismiss for lack of subject matter jurisdiction.
In a supplemental brief in opposition to defendant's motion to dismiss, plaintiff has brought to the court's attention an order of the court in the case of Goble v. United States Fidelity and Guaranty Co., Civil Action No. 582-39 (S.D.Ga. June 21, 1983). In that case, Judge Alaimo held that the deliberate failure to pay workers' compensation benefits may give rise to a right of action in tort. The motion to dismiss under consideration in the instant case does not assert that plaintiff's claims do not state a cause of action in tort. Therefore, the court expresses no opinion as to that issue.
[2] In a continuing garnishment proceeding a judgment creditor may obtain garnishment against any garnishee who is an employer of the person against whom the judgment has been obtained. O.C.G.A. §§ 18-4-110 et seq. All debts owed by the employer-garnishee to the employee at the time of service of summons of continuing garnishment upon the garnishee and all debts accruing from the employer to the employee (i.e., wages) from such date of service to and including the one hundred and seventy-ninth day thereafter are subject to continuing garnishment. O.C.G.A. § 18-4-111(a).
[3] At this point it should be noted that this is not a case of an insurer's mere refusal to provide compensation, wilful or negligent delay in claim processing, or "simple" wrongful termination (whether negligent or wilful) of benefits. Plaintiff has alleged facts which, if proved, might provide the basis for a finding that defendant denied plaintiff his rightful benefits by engaging in fraud, deceit, misrepresentation, abuse of process, and/or conversion (each being distinct and cognizable tortious conduct). For this reason, the court finds cases involving wilful or negligent delay, denial, or termination of workers' compensation benefits without more to be of little assistance in the resolution of this case. Such cases include: Hixon v. State Compensation Fund, 115 Ariz. 392, 565 P.2d 898 (Ariz.App. 1977) (wilful termination); Noe v. Travelers Ins. Co., 172 Cal.App.2d 731, 342 P.2d 976 (1959) (delay); Sullivan v. Liberty Mutual Ins. Co., 367 So.2d 658 (Fla.App.), cert. denied, 378 So.2d 350 (Fla.1979) (wilful termination); Hicks v. Bd. of Educ., 77 Ill.App.3d 974, 33 Ill.Dec. 683, 397 N.E.2d 16 (1979) (deliberate failure to process claim); Physicians & Surgeons Hospital, Inc. v. Leone, 399 So.2d 806 (La.App.), cert. denied, 401 So.2d 993 (La.1981) (failure to pay benefits); Chavez v. Kennecott Copper Corp., 547 F.2d 541 (10th Cir.1977) (applying New Mexico law) (denial of claim); Whitten v. American Mutual Liability Ins. Co., 468 F.Supp. 470 (D.S.C.1977), aff'd without opinion, 594 F.2d 860 (4th Cir. 1979) (applying South Carolina law) (wilful termination).
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1 N.Y.3d 586 (2004)
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
NICHOLSON McCOY, Appellant.
Court of Appeals of the State of New York.
Submitted December 22, 2003.
Decided January 8, 2004.
Motion by Thomas Aloi, et al. for leave to appear amici curiae on the appeal herein granted to the extent that 15 copies of a brief may be filed and 3 copies served within 20 days. The brief shall be one bound document captioned People v Nicholas McCoy listing all amici curiae and shall include the brief, supplemental brief and index of exhibits accepted by the Court of Appeals by orders dated July 1, 2002 and February 18, 2003 in the case People v James Cahill [see 2 NY3d 14 (2003)].
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50 So.3d 665 (2010)
INTERSTATE BRANDS CORP./BROADSPIRE, Appellants,
v.
Edwin BLANCO, Appellee.
No. 1D10-271.
District Court of Appeal of Florida, First District.
November 30, 2010.
Rehearing Denied January 6, 2011.
*666 Michael G. Rabinowitz of Banker, Lopez, Gassler, P.A., Tampa, for Appellants.
Bradley Guy Smith of Smith, Feddeler, Smith & Miles, P.A., Lakeland; Susan W. Fox of Fox & Loquasto, P.A., Tampa, for Appellee.
THOMAS, J.
In this workers' compensation case, the Employer/Carrier (E/C) appeals an order awarding attorney's fees and costs to Claimant's counsel. We reverse based on Interior Custom Concepts v. Slovak, 969 So.2d 1095 (Fla. 1st DCA 2007).
Background
Claimant was injured in an industrial accident on May 5, 1997, and administratively accepted as permanently and totally disabled in 1999. The E/C paid permanent total disability (PTD) benefits and PTD supplemental benefits until January 10, 2008, when those benefits stopped without explanation. Claimant filed a petition for benefits on March 25, 2008, seeking their reinstatement, plus attorney's fees and costs. The E/C did not file a response to the petition. On May 7, 2008, however, the E/C paid Claimant a lump sum of $9,060.49, representing PTD and PTD supplemental benefits due from January 10, 2008, with penalties and interest. The E/C also resumed paying PTD and PTD supplemental benefits.
Claimant's counsel filed a petition for attorney's fees on June 18, 2009, seeking $56,288.95 in fees from the E/C based on benefits counsel asserted he obtained for Claimant. In addition to certain medical benefits not at issue in this appeal, the value of those benefits included not only the $9,060.49 in past due PTD and PTD supplemental benefits, plus penalties and interest, paid on May 7, 2008, but also the present value of all future PTD and PTD supplemental benefits which Claimant's counsel alleged to be $532,810.88.
The only testimony presented at the subsequent fee hearing came from the E/C's adjuster, who testified that benefits stopped due to an administrative error when the claim file was transferred from another adjuster to her in January 2008. She testified the E/C never intended to deny benefits and that the failure to pay was "merely an oversight." The adjuster did not explain why the E/C did not reinstate benefits and pay past due PTD and PTD supplemental benefits before May 7, 2008.
Following the fee hearing, the JCC initially entered an order awarding Claimant's counsel a fee in the full amount requested. The JCC rejected the E/C's argument that the value of future PTD and PTD supplemental benefits should not be included in determining the value of benefits obtained by Claimant's counsel, finding that the E/C never intended to permanently suspend those benefits. Following rehearing, the JCC entered an amended order reducing the fee to $40,237.45, based on the statutory provision that a fee based on benefits obtained should include an amount equal to only 5% of benefits secured after 10 years. See § 440.34(1), Fla. Stat. (1995). The JCC, however, again rejected the E/C's argument that the value of future PTD and PTD supplemental benefits should not be included in the fee calculation, and based the fee on calculations *667 which included the value of future benefits.
In rejecting the E/C's argument, the JCC first concluded the E/C's intent was irrelevant to the issue of Claimant's counsel's entitlement to attorney's fees, because the E/C did not respond to the petition for benefits within 30 days. Distinguishing this court's opinion in Slovak, the JCC then concluded that future PTD and PTD supplemental benefits should be considered in determining the value of benefits obtained because Claimant's counsel was responsible for reinstatement of the PTD and PTD supplemental benefits.
Analysis
Under section 440.34(3)(b), Florida Statutes (1995), the paragraph of the attorney fee statute applicable to this May 5, 1997, date of accident, a claimant is entitled to recover a reasonable attorney's fee from an employer or carrier "in any case in which the employer or carrier files a notice of denial with the division and the injured person has employed an attorney in the successful prosecution of his claim." Our decisions hold that an employer or carrier's failure to pay the requested benefits, file a notice of denial, or invoke the "pay and investigate" provisions of section 440.20(4), Florida Statutes (1995), results in the E/C being responsible for Claimant's attorney's fees under section 440.34(3)(b). See, e.g., McDonald's Rest. # 7160 v. Montes, 736 So.2d 768, 769 (Fla. 1st DCA 1999). Because the E/C took no action within 14 days of receipt of the petition requesting PTD and PTD supplemental benefits, but later paid those benefits, the JCC properly determined Claimant's counsel was entitled to attorney's fees from the E/C. Cf. Stolzer v. Magic Tilt Trailer, Inc., 878 So.2d 437, 438 (Fla. 1st DCA 2004) (holding that 2002 amendment to section 440.34(3), Florida Statutes, providing that attorney's fees shall not attach under that subsection until 30 days after the date the carrier or employer receives the petition for benefits, was substantive change and thus could not be applied retroactively).
Although the JCC correctly determined that Claimant's counsel was entitled to attorney's fees for obtaining reinstatement of PTD and PTD supplemental benefits, the JCC erred in considering the value of future benefits in determining the amount of fees due. Where the E/C does not intend to permanently suspend PTD and PTD supplemental benefits, our decision in Slovak holds that only the value of past due benefits should be considered in determining the amount of attorney's fees. 969 So.2d at 1097. Here, the JCC accepted the adjuster's testimony and specifically found that the E/C had absolutely no knowledge it had ever stopped paying benefits. Given this finding of fact, it was not permissible for the JCC to find (nor did she find) that the E/C intended to permanently suspend PTD and PTD supplemental benefits.
We do not condone the E/C's negligent failure to timely provide disability benefits. In cases where there is competent, substantial evidence that the E/C intended to permanently suspend PTD and PTD supplemental benefits, a JCC may find the E/C intended to permanently suspend those benefits, and may properly consider the value of future benefits in determining the amount of attorney's fees to award. Here, however, the JCC made no such finding, and the reasons for including the value of future PTD and PTD supplemental benefits in the fee calculation are no more compelling than in Slovak. We therefore reverse the order on appeal and remand with instructions that the amount of attorney's fees be determined without considering the value of future PTD and PTD supplemental benefits.
*668 REVERSED and REMANDED with instructions consistent with this opinion.
ROWE, J., concurs; WOLF, J., dissents with written opinion.
WOLF, J., Dissenting.
The cornerstone of the majority opinion is that "the JCC accepted the adjuster's testimony and specifically found that the E/C had absolutely no knowledge it had ever stopped paying benefits. Given this finding of fact, it was not permissible for the JCC to find (nor did she find) that the E/C intended to permanently suspend PTD and PTD supplemental benefits." The majority, therefore, determined that Interior Custom Concepts v. Slovak, 969 So.2d 1095 (Fla. 1st DCA 2007), is controlling.
I cannot agree. As the JCC correctly determined, the initial subjective intent or lack of culpability of the E/C in originally cutting off benefits is irrelevant. Competent, substantial evidence and the objective measures as reflected by the record support the JCC's specific factual finding, "[w]ithout the intervention of claimant's counsel, claimant may never have been paid again." This determination distinguishes the holding in Interior Custom Concepts and is the reason the JCC's decision to award fees based on future benefits should be affirmed.
Claimant filed a petition for benefits on March 25, 2008. The E/C chose not to respond for more than 14 days. The failure to respond to the petition operated "as a denial of every allegation in the petition for benefits." Russell Corp. v. Brooks, 698 So.2d 1334, 1335 (Fla. 1st DCA 1997). This denial included the entitlement to future benefits. Benefits were not actually reinstated until May 7, 2008. The record further reflects the E/C failed to respond to telephone calls made in February and March 2008 inquiring about Claimant's benefits.
In Interior Custom Concepts, unlike the instant case, the record, including the pleadings, specifically reflected the carrier only intended benefits to be cut off for a discrete amount of time (until a functional medical evaluation occurred). While the carrier in Interior Custom Concepts may have ultimately taken the position that further benefits were not due based on the functional medical evaluation, it never took the position on the record that these future benefits were not due. In fact, benefits were immediately reinstated after its motion to compel was denied. The objective actions of the carrier in the instant case, especially the failure to respond to the petition for benefits or reinstate benefits within 14 days, distinguish this case from Interior Custom Concepts. I would affirm.
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322 F.Supp.2d 667 (2004)
J.R. LILIENTHAL, Plaintiff,
v.
CITY OF SUFFOLK, and Mark R. Outlaw, Defendants.
No. 2:03CV229.
United States District Court, E.D. Virginia, Norfolk Division.
June 18, 2004.
*668 Douglas L. Steele, Thomas A. Woodley, Woodley & McGillivary, Washington, DC, Gregory A. Giordano, Shuttleworth, Ruloff, Giordano & Swain, Virginia Beach, VA, Counsel for Plaintiff.
Robert W. McFarland, Stacy M. Landis, McGuireWoods, LLP, Norfolk, VA, Counsel for Defendants.
OPINION AND ORDER
REBECCA BEACH SMITH, District Judge.
This matter comes before the court on plaintiff's petition for an award of attorneys fees and costs. For the reasons set forth below, the petition is GRANTED in part, and DENIED in part.
I. Factual and Procedural History[1]
Plaintiff J.R. Lilienthal is a lieutenant in the fire department of the City of Suffolk, where Mark R. Outlaw ("Fire Chief Outlaw") is the Fire Chief. In addition, plaintiff has been the President of the Suffolk Professional Fire and Rescue Association since 1998.
On several occasions prior to September 24, 2002, plaintiff spoke to the City Council and employees of the City Manager's Office on various topics concerning the fire department. Plaintiff also associated with members of the City Council, City Manager's *669 Office, and individual city department directors in the course of addressing fire department matters.
On September 25, 2002, Fire Chief Outlaw met with plaintiff, and handed to plaintiff a memorandum regarding his previous communications with city officials on fire department issues. Plaintiff believes that the policy stated in the September 2002 memorandum violates his First Amendment rights of free speech and association. Since receiving the September 2002 memorandum, plaintiff refrained from addressing substantive fire department matters with the City Council, members of the City Manager's Office, or other department directors.
On October 28, 2002, and on several subsequent occasions, plaintiff requested that the policy expressed in the September 2002 memorandum be rescinded. On March 6, 2003, the City of Suffolk responded to plaintiff's requests by stating that the September 2002 memorandum did not violate plaintiff's constitutional rights. On March 25, 2003, plaintiff filed this lawsuit under 42 U.S.C. § 1983, seeking a declaratory judgment, an injunction, compensatory damages, and punitive damages. (Compl. at 11.)
On March 10, 2004, a hearing was scheduled before United States Magistrate Judge James E. Bradberry. Prior to the hearing, the court inquired of plaintiff and Fire Chief Outlaw whether they had spoken at any length about the September 2002 memorandum. (Mar. 18, 2004, Order at 1.) The parties replied in the negative. (Id.) Accordingly, the court advised the litigants and their counsel that the matter would be continued to the following week, and that plaintiff and Fire Chief Outlaw were to meet and discuss whether the matters raised within the September 2002 memorandum could be resolved in a way that would avoid continuing litigation. (Id.)
On March 17, 2004, the parties reconvened before Judge Bradberry and informed the court that, with the exception of one phrase, they had reached agreement on a memorandum expressing a mutually satisfying statement of policy. (Tr. at 2.) Defendants preferred a formulation stating that the new memorandum "supplements" the September 2002 memorandum. (Id.) Plaintiff preferred a formulation stating that the new memorandum "supersedes and replaces" the September 2002 memorandum. (Id.) The court suggested that the parties delete any reference to whether the March 2004 memorandum supplements or replaces the September 2002 memorandum, and instead include language to clearly indicate that the March 2004 memorandum states governing policy. (Id. at 5-7.) The parties agreed to this proposal, and adopted the following as the opening paragraph of the new memorandum:
This document is intended to govern the nature, scope and place/circumstances under which fire employees may engage in discussion of issues related to the fire and emergency services of Suffolk, Virginia.
(Mar. 18, 2004, Order at 2.)
Throughout the hearing, the court clearly and repeatedly stated its opinion that although the settlement arrived at obviated the need to decide whether constitutional rights had been violated, the nature of the settlement merited the award of attorneys fees.[2] The court was equally clear in *670 its opinion that the nature of the settlement and the relief obtained merited a partial, rather than complete, award of attorneys fees.[3] The court ordered that plaintiff submit his petition for fees by April 14, 2004, with defendants' objections to be filed by May 14, 2004, and plaintiff's rebuttal to be filed by May 24, 2004. All filings have been submitted as ordered, and the matter is now ripe for review.
II. Legal Standards
In any action brought under 42 U.S.C. § 1983, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988. A prevailing plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quoting S.Rep. No. 94-1011, at 4 (1976)). The fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. Id. at 437, 103 S.Ct. 1933.
The Supreme Court announced in Farrar v. Hobby the standard for qualifying as a prevailing party for purposes of § 1988:
[A] civil rights plaintiff must obtain at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought or comparable relief through a consent decree or settlement. Whatever relief the plaintiff secures must directly benefit him at the time of judgment or settlement.
506 U.S. 103, 112, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). "In short, a plaintiff `prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Id.
In determining a reasonable attorneys fee, the proper first step is to calculate the lodestar amount, which results from multiplying "the number of hours reasonably expended on the litigation times a reasonable hourly rate." Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 564, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (quoting Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). To make this calculation, the court must necessarily exclude any hours that are "excessive, redundant, or otherwise unnecessary," and therefore not reasonably expended on the litigation. Hensley, 461 U.S. at 434, 103 S.Ct. 1933. This process requires the use of the same "billing judgment" that guides a lawyer in private practice in billing his client. Id.
Although a properly calculated lodestar figure is presumed to be a reasonable fee, Del. Valley Citizens' Council for Clean Air, 478 U.S. at 565, 106 S.Ct. 3088, the court's discretion to award fees necessarily "encompass[es] the ability to depart from the lodestar in appropriate circumstances." Carroll v. Wolpoff & Abramson, 53 F.3d 626, 629 (4th Cir.1995). Certain considerations, including the twelve factors identified in Johnson v. Georgia Highway *671 Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974),[4] may lead the court to adjust a fee upward or downward from the lodestar. Hensley, 461 U.S. at 434, 103 S.Ct. 1933. The "most critical factor" in determining the reasonableness of a fee award is "the degree of success obtained" by the plaintiff. Id. at 436, 103 S.Ct. 1933. When a plaintiff has achieved "only partial or limited success," the district court "may simply reduce the award to account for the limited success." Id. at 436-37, 103 S.Ct. 1933; Carroll, 53 F.3d at 629.
III. Analysis
Plaintiff seeks an award of attorneys fees in the amount of $132,938.50, and expenses in the amount of $13,968.06. Defendants raise three main arguments in opposition to plaintiff's requested fees: (1) plaintiff is not a "prevailing party" within the meaning of § 1988, and therefore not entitled to attorneys fees; (2) the hours actually expended by plaintiff's counsel were excessive; and (3) plaintiff's award should be reduced to account for limited success on the merits.[5]
A. Plaintiff's Status as a Prevailing Party
Defendants assert that plaintiff is not a prevailing party within the meaning of § 1988 because this dispute was resolved without deciding the merits of plaintiff's constitutional claims or nullifying the September 2002 memorandum. Despite these contentions, plaintiff has achieved sufficient relief on his claims to merit the award of attorneys fees.
At the March 17, 2004, hearing, Judge Bradberry aptly described the nature and purpose of this litigation:
[T]he fact of the matter is that this particular document has affected what [plaintiff] has chosen to do or not chosen to do, and so the resolution of the issue is entirely appropriate because the whole purpose of bringing this action is to try and resolve exactly what firefighters can do in the department.
(Tr. at 5.) In bringing this suit, plaintiff sought to "create an environment where [he] doesn't face a prospect of discipline for exercising what may be a legitimate right to express concern." (Id. at 6.)
The settlement here provides plaintiff with meaningful relief on his claims. As Judge Bradberry sensibly observed, determining whether the March 2004 memorandum nullifies, supplements, replaces, clarifies, abolishes, or complements the *672 September 2002 memorandum is an unnecessary exercise in wordplay. (Id. at 3-8.) Plainly declaring the March 2004 memorandum to be governing fire department policy is sufficient to dispel the pall of uncertainty which burdened plaintiff's speech and associational rights, and thereby assure that "[plaintiff's] side is ultimately going to prevail." (Id. at 14.) The March 2004 memorandum is embodied in the March 18, 2004, Order of this court, and both that Order and the parties' settlement directly benefit plaintiff. As such, plaintiff is a prevailing party within the meaning of § 1988.[6]
B. Calculation of the Lodestar Figure
As already discussed, the proper first step in determining a fee award for a prevailing party is to calculate the lodestar amount by multiplying "the number of hours reasonably expended on the litigation times a reasonable hourly rate." Del. Valley Citizens' Council for Clean Air, 478 U.S. at 564, 106 S.Ct. 3088. Plaintiff is seeking an award of attorneys fees in the amount of $132,938.50, and expenses in the amount of $13,968.06. In calculating these figures, plaintiff has excluded certain charges in a good faith application of the "billing judgment" required under the applicable precedents. Specifically, plaintiff has excluded charges for travel time, an unsuccessful motion to join other firefighters as co-plaintiffs, and half of the time spent in preparing the fee petition and rebuttal. (Pl.'s Reply at 16 n. 15.) Plaintiff's counsel have also indicated that they do not intend to petition for fees in a related case, Triplett v. City of Suffolk, No. 2:04cv86. (Id.)
Plaintiff's fee petition is properly supported with affidavit evidence regarding the reasonableness of the hourly rates sought in light of the nature of this litigation, the customary fees in this market, and the experience, reputation, and abilities of plaintiff's counsel. (Pl.'s Pet. Ex. H.) Defendants do not contest the reasonableness of the hourly rates sought (Defs.' Br. in Opp. at 11), and instead challenge only the number of hours expended.
Defendants argue generally that the 528.8 hours expended by plaintiff's counsel are excessive given that defendants' counsel expended only 343.4 hours on this suit.[7] More specifically, defendants target three areas of plaintiff's claimed hours as excessive and unreasonable: (1) time expended on client consultations; (2) time expended in discovery; and (3) time expended on a second motion for summary judgment. Having reviewed the parties' submissions and the record as a whole, the court agrees that part of the time claimed by plaintiff is appropriately excluded from a reasonable fee.
1. Hours Claimed for Client Communications
Defendants note that the records of plaintiff's primary attorney, Thomas A. Woodley, indicate "communications with the plaintiff by telephone, email and/or correspondence on at least sixty different dates, including numerous communications regarding `strategy.'" (Juren Aff. ¶ 5.) Defendants argue that given the limited number of core facts relevant to plaintiff's legal claims, the extent of these communications *673 is excessive. (Id.) Plaintiff's rebuttal brief does not specifically address the issue of client communications.
An attorney's "commitment to work closely with his client is certainly laudable ... and attorney time reasonably spent with clients in preparing a case should be part of the hours compensated in an attorney's fee award." Daly v. Hill, 790 F.2d 1071, 1079 (4th Cir.1986). The burden of proving entitlement to compensation for client communications, however, rests with the prevailing attorneys. Id. In circumstances where a fee petition makes numerous claims for client communications, but does not "illuminate the way in which the many hours of client conferences may have aided ... preparation of the case," the court may properly exclude some hours as excessive. Id.
Based on the record before the court, it is unclear why as many as sixty client communications would have been necessary in this case, and the court finds that plaintiff's counsel have not borne their burden of establishing the reasonableness of the hours claimed. Because the time records submitted by plaintiff do not isolate the hours claimed for client communications, an approximation is required to determine the proper number of hours excluded. Assuming that one-half, or thirty, of the client communications claimed are not within the scope of a reasonable fee, and that the average communication lasted 0.5 hours, the court finds that the exclusion of 15.0 hours is sufficient to correct this claim. Accordingly, the court excludes from the lodestar figure 15.0 hours billed at $250 per hour,[8] or $3,750.00.
2. Hours Expended in Discovery
Defendants challenge as unreasonable the hours devoted to discovery. Specifically, defendants argue that it was unnecessary for plaintiff to depose all of the witnesses identified in defendants' initial disclosures. Defendants cite the depositions of former City Manager Myles Standish, Councilman Leroy Bennett, Assistant City Manager James Vacalis, and Assistant Human Resources Director Jessica Stallings as ones which plaintiff should have known were unlikely to involve probative information. (Defs.' Br. in Opp. at 12-13.)
In response, plaintiff notes that with one exception, the city representatives deposed were identified by defendants as individuals having discoverable information and possible witnesses at trial. (Pl.'s Reply at 13 n. 10; id. Ex. 5.) The only individual not so identified was Councilman Bennett. A review of plaintiff's time records shows that Councilman Bennett and three other city representatives were deposed on December 8, 2003, and that plaintiff's counsel have claimed 9.3 hours for the four depositions. (Pl.'s Pet. Ex. A at 9.) Plaintiff's counsel claim a total of 4.7 hours on December 5, 2003, and December 7, 2003, in preparation for the four depositions taken December 8, 2003. (Id.)
Under these circumstances, the time claimed by plaintiff for the challenged depositions is reasonable. It is generally reasonable to depose a potential trial witness, and the records before the court reflect that plaintiff's counsel made efforts to conduct depositions in a time-efficient manner. Certainly 14.0 hours is not an unreasonable total for preparing and taking four depositions.[9] Accordingly, the *674 court does not find reason to exclude any hours claimed for depositions.
3. Time Expended on a Second Motion for Summary Judgment
Defendants raise two arguments in regard to the hours claimed for plaintiff's second motion for partial summary judgment, filed February 6, 2004. First, defendants assert that the utility of a second summary judgment motion in this case was questionable, and that it is unreasonable to claim any time expended on that motion. (Defs.' Br. in Opp. at 13.) Second, and more specifically, defendants argue that the hours billed by plaintiff's counsel Douglas L. Steele in preparation for a hearing on the second summary judgment motion were excessive. (Id.)
Defendants' first argument is unpersuasive. Plaintiff's initial motion for summary judgment came in response to defendants' motion to dismiss, and was made prior to discovery in this case. Under the circumstances presented, it was not unreasonable for plaintiff to file a second motion for summary judgment after discovery had been completed.
Defendants' second argument, however, rests on firmer ground. Attorney Steele had the principal role in representing plaintiff at the summary judgment hearings on March 10, 2004, and March 17, 2004, and also had primary responsibility for making certain pretrial preparations. (Woodley Aff. ¶ 7, at 4.) For the period of March 4, 2004, through March 18, 2004, Attorney Steele claims 90.4 hours.
Defendants challenge this amount as excessive, arguing that because all briefs on the second motion for summary judgment had already been filed, "[a]ll that was necessary at that point to prepare for the hearings was to review the previously filed papers and prepare for argument." (Defs.' Br. in Opp. at 14.) It is not clear from plaintiff's submissions how many of the 90.4 hours claimed by Attorney Steele were specifically devoted to preparation for the summary judgment hearing, and how many were devoted to pretrial matters. (See Pl.'s Pet. Ex. B.) Defendants estimate that 35-45 of the 90.4 hours were spent preparing for the summary judgment hearing. (Juren Aff. ¶ 7, at 5.)
Upon review of Attorney Steele's time records, it appears that approximately 40.0 of the 90.4 hours claimed during this period involved preparation for the summary judgment hearing. The court agrees with defendants that this time is excessive. Attorney Steele is a knowledgeable and experienced practitioner, and the relevant legal issues had been effectively clarified in the parties' briefs. Under these circumstances, the court finds that one-half of the time, which is 20.0 hours, properly captures a reasonable fee for preparation for the hearing. While the court does not fault Attorney Steele for expending more than 20.0 hours in so preparing (and indeed appreciates his diligence), it is nonetheless appropriate to exclude from the lodestar figure 20.0 hours billed at $225 per hour, or $4,500.00.
C. Reduction from the Lodestar Figure for Limited Success
Both the Supreme Court and the Fourth Circuit have acknowledged the district court's discretion to depart from the lodestar when an award of that figure would be excessive in light of a plaintiff's limited success. Hensley v. Eckerhart, *675 461 U.S. 424, 436-37, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); McDonnell v. Miller Oil Co., 134 F.3d 638, 641 (4th Cir.1998); Carroll v. Wolpoff & Abramson, 53 F.3d 626, 629 (4th Cir.1995). Because the degree of success obtained by the plaintiff is the "most critical factor" in determining the reasonableness of a fee award, the district court "may simply reduce the award to account for the limited success." Hensley, 461 U.S. at 436-37, 103 S.Ct. 1933.
Defendants suggest that any award of fees should be "dramatically reduced," arguing that because the settlement reached did not require the withdrawal of the September 2002 memorandum, plaintiff's success was de minimus. (Defs.' Br. in Opp. at 9-10.) For the reasons discussed supra Part III.A, the court rejects this characterization, and finds that the relief afforded to plaintiff through this settlement is quite meaningful, not inconsequential.
Despite the significance of the relief achieved, however, it is clear that plaintiff's success in this litigation is less than total. Plaintiff initially sought a declaration of constitutional violations, an injunction of the September 2002 memorandum, and both compensatory and punitive damages. (See Compl. at 11.) Defendants opposed all relief and any change to then-existing fire department policy. In settling this case, the parties and the Magistrate Judge charted a course in which a determination of constitutional rights became unnecessary, plaintiff voluntarily dropped all claims for damages, and a new, governing policy was implemented to protect and promote the constitutional rights of Suffolk firefighters. Plainly, the settlement reached reflects substantial movement by both parties from their long-entrenched positions.
The court finds it appropriate to depart from the lodestar figure to properly account for this type of compromise relief. See Thomas S. v. Burke County Bd. of Educ., 1987 U.S. Dist. LEXIS 10763, *5-8 (S.D.Ga.1987) (adjusting attorneys fees to reflect compromise relief).[10] In so doing, the court applies "a rough sense of equity" to its knowledge of this litigation. Id. at *8. In calculating a proper lodestar figure, the court excluded $8,250.00 from the requested $132,938.50, see supra Part III.B.1 & III.B.3, leaving a fee amount of $124,688.50. Considering both the relief sought and the relief obtained in this case, the court finds that a forty percent reduction in the lodestar amount is appropriate to account for plaintiff's partial success. Accordingly, the fee award is reduced from $124,688.50 to $74,813.10.
D. Litigation Expenses
A prevailing plaintiff is entitled under § 1988 to reasonable litigation expenses. Spell v. McDaniel, 852 F.2d 762, 771 (4th Cir.1988); Daly v. Hill, 790 F.2d 1071, 1084 (4th Cir.1986). Here, plaintiff has documented expenses in the amount of $13,968.06. Having reviewed this documentation, the court finds the full amount to be reasonable and compensable under § 1988.
IV. Conclusion
For the reasons set forth above, the court GRANTS petitioner's motion and AWARDS attorneys fees in the amount of $74,813.10 and litigation expenses in the amount of $13,968.06, with interest on this award to be computed as in 28 U.S.C. § 1961, and to accrue from the date of *676 judgment. 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 recitation of the facts underlying this dispute is adapted from Lilienthal v. City of Suffolk, 275 F.Supp.2d 684, 688-89 (E.D.Va.2003).
[2] An incomplete list of the court's comments includes the following: "I think they're going to be entitled to some attorney's fees" (Tr. at 11); "[I]f I was the District Court Judge I would unhesitatingly impose attorney's fees" (id.); "The City is going to have to pay an attorney's fee" (id. at 13); "[T]he City picks up the responsibility for some attorney's fees" (id. at 16).
[3] The court's comments included the following: "The Court will not grant the attorney's fees that they are seeking but will grant part of the attorney's fees" (Tr. at 9); "[I]f I was the District Court Judge.... I wouldn't impose the attorney's fees they'd want" (id. at 11); "[Y]ou're going to get an attorney's fee, [but] not as much as you hoped" (id. at 13); "[T]he plaintiff loses the right to claim all the attorney's fees they might otherwise get because there is a compromise" (id. at 16).
[4] The twelve factors identified in Johnson are as follows: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974).
[5] Defendants also urge that the court further reduce any award of fees to account for other Johnson factors, specifically the preclusion of employment by the attorney due to acceptance of the case; whether the fee is fixed or contingent; the experience, reputation, and ability of the attorneys; and the "undesirability" of the case. (Defs.' Br. in Opp. at 15-16.) Because the court finds that these factors are adequately accounted for in the lodestar figure in this case, departure from the lodestar figure on these bases is unnecessary. See Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (observing that many Johnson factors are often fully reflected in the lodestar amount).
[6] In addition to the factors already cited, the court notes that in essentially brokering the settlement between these parties, Judge Bradberry repeatedly expressed his belief that plaintiff was a prevailing party entitled to a reasonable attorneys fee. See supra note 2.
[7] "[G]eneral grousing" about the hours claimed by a prevailing party is not an effective substitute for identifying particular time entries, or groups of entries, which are believed to be excessive. See Saleh v. Moore, 95 F.Supp.2d 555, 569 (E.D.Va.2000) (Payne, J.).
[8] Attorney Woodley claims an hourly rate of $250.00 for work performed in 2003 and 2004. (Pl.'s Pet. Ex. E.)
[9] Former City Manager Standish was not deposed with the group of four on December 8, 2003, but separately on January 22, 2004. Preparing and taking Standish's deposition consumed some portion of the 13.9 hours claimed by plaintiff's counsel for January 20-22, 2004. (Pl.'s Pet. Ex. A at 10.) Based on the record before it, the court finds this time expenditure to be reasonable.
[10] It is clear from various statements at the March 17, 2004, hearing that Judge Bradberry also held the view that plaintiff's success was partial, and accordingly merited a partial fee award. See supra note 3.
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NUMBER 13-12-00345-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI C EDINBURG
JOSE ANTONIO
TORRES FLAMENCO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 430th District Court
of Hidalgo County, Texas.
ORDER TO RETURN CLERK’S RECORD
Before Justices Garza, Benavides, and Perkes
Order Per Curiam
This cause is before the Court on counsel’s failure to return the clerk’s record to
the Court. On September 13, 2013, counsel checked out the clerk’s record for a period
of thirty days, until October 14, 2013. The clerk’s office has contacted appellant’s
counsel several times requesting that the record be returned. As of this date, the clerk’s
record has not been returned.
Appellant’s counsel, Johnathan T. Ball, is hereby ORDERED to return the original
clerk’s record to this Court on or before May 16, 2014. Should counsel not be able to
locate the original clerk’s record, counsel is ORDERED to obtain another original copy of
the clerk’s record from the district clerk and have it filed on or before May 16, 2014.
The Clerk of this Court is ORDERED to serve a copy of this order on Johnathan T.
Ball by certified mail, return receipt requested.
PER CURIAM
Do not publish.
Tex. R. App. P. 47.2(b).
Delivered and filed the
12th day of May, 2014.
2
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL FLORES, No. 18-55344
Petitioner-Appellant, D.C. No.
2:13-cv-03934-JLS-AFM
v.
MEMORANDUM*
CHRISTIAN PFEIFFER, Warden
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Josephine Staton, District Judge, Presiding
Submitted March 6, 2020**
Pasadena, California
Before: HURWITZ and FRIEDLAND, Circuit Judges, and KORMAN,*** District
Judge.
While Daniel Flores was in jail after being arrested on drug charges, both he
and Jose Velasquez were surreptitiously recorded during conversations with a paid
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
confidential informant (“CI”). The CI introduced himself as a member of the
Mexican Mafia, and stated that he had heard that attacks committed by Flores and
Velasquez were drive-by shootings in violation of the Mafia’s code of conduct. The
CI stated that he was tasked with getting to the bottom of these rumors, and that their
names would be cleared if they confirmed the attacks were not drive-by shootings.
In response, Flores and Velasquez confessed to the crimes, but explained that they
were not drive-by shootings.
Flores and Velasquez were tried separately in California state court. Both
statements were admitted at Flores’ trial and he was convicted of murder and
attempted murder. After unsuccessfully pursuing direct appeals and state habeas
relief, Flores filed a 28 U.S.C. § 2254 habeas corpus petition, which the district court
denied. We have jurisdiction of Flores’ appeal under 28 U.S.C. § 1291 and affirm.
1. Flores argues that his confession was coerced because the CI told him that
his name was dirtied by rumors that he had committed drive-by-shootings, and that
he could avoid any adverse consequences if he dispelled those rumors. The
California Court of Appeal found that the CI did not threaten Flores, and that Flores
did not confess out of fear. Considering the totality of the circumstances, the Court
of Appeal’s conclusion that Flores voluntarily confessed was not contrary to, or an
unreasonable application of, clearly established federal law. See Williams v. Taylor,
529 U.S. 362, 412 (2000).
2
2. Flores argues that Velasquez’s testimony was also coerced and improperly
admitted at Flores’ trial. Flores raised this argument on direct appeal to the California
Court of Appeal but not in his petition for review to the California Supreme Court.
Accordingly, when Flores subsequently raised this claim in a state habeas petition,
the California Supreme Court summarily denied the petition, citing In re Waltreus,
397 P.2d 1001, 1005 (Cal. 1965), and In re Dixon, 264 P.2d 513, 514 (Cal. 1953).
Given the Waltreus citation, this claim is procedurally barred from habeas review,
and the record reveals no cause for the procedural default and no prejudice. See
Forrest v. Vasquez, 75 F.3d 562, 563–64 (9th Cir. 1996); see also Coleman v.
Thompson, 501 U.S. 722, 732, 750 (1991).
3. The district court correctly rejected Flores’ argument that the Sixth
Amendment was violated under the rule in Massiah v. United States, 377 U.S. 201,
203–04, 207 (1964), when he was questioned by the CI without the assistance of
counsel. This claim fails because the CI questioned Flores regarding uncharged
conduct, unrelated to the charge for which he was being detained, and therefore his
right to counsel had not attached. See Texas v. Cobb, 532 U.S. 162, 167–68 (2001).
AFFIRMED.
3
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220 S.E.2d 630 (1975)
28 N.C. App. 198
STATE of North Carolina
v.
Ricky Ray TUTTLE.
No. 7521SC468.
Court of Appeals of North Carolina.
December 17, 1975.
*631 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. John M. Silverstein, Raleigh, for the State.
Nelson, Clayton & Boyles by Laurel O. Boyles, Winston-Salem, for defendant-appellant.
MARTIN, Judge.
Defendant contends that the trial court committed prejudicial error in not allowing defendant's counsel to cross-examine the prosecutrix as to her sexual past.
The general character of the prosecutrix in a rape case may be shown as bearing upon the question of consent. State v. Grundler, 251 N.C. 177, 111 S.E.2d 1 (1959). However, specific acts of unchastity with persons other than defendant are inadmissible in such cases. State v. Grundler, supra. Of course, the prosecutrix may be cross-examined concerning specific acts of unchastity for the sole purpose of impeaching credibility, State v. Murray, 63 N.C. 31 (1868), but the defendant is bound by her answer. 1 Stansbury, N.C. Evidence, § 111 (Brandis Rev.1973). A witness called by the defendant cannot be asked about specific acts of misconduct by prosecutrix. This witness must confine himself to testimony concerning general reputation for chastity. State v. Hairston, 121 N.C. 579, 28 S.E. 492 (1897).
On cross-examination the prosecutrix was asked the following question:
"Q. How long prior to this night, Miss Ahern, was the first time you ever had sexual experiences?
Mr. Lyle: Objection.
The Court: Sustained.
Exception No. I."
The witness had previously testified on cross-examination that she had had intercourse previous to that night. The question related to a specific act of unchastity and was competent for the purpose of impeaching credibility. State v. Murray, supra. However, we hold that its exclusion under all of the circumstances of this case was not sufficiently prejudicial to warrant another trial. The evidence of independent witnesses as to the physical condition of the prosecutrix on the night the intercourse occurred corroborates her testimony.
The defendant next contends that the cross-examination of the defendant as to his court record while a juvenile was reversible error. This contention is without merit. For purposes of impeachment, it is permissible to cross-examine a juvenile defendant with reference to his prior convictions or adjudications of guilt of prior conduct which, if committed by an adult, would have constituted a conviction of crime. State v. Miller, 281 N.C. 70, 187 S.E.2d 729 (1972). Thus, the district attorney's examination of the defendant as to his past record was not more than the law allows. This assignment of error is overruled.
Defendant's remaining assignment of error is without merit.
Defendant had a fair trial, free from error.
No error.
BROCK, C. J., and VAUGHN, J., concur.
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518 F.3d 942 (2008)
UNITED STATES of America, Appellee,
v.
Shawn BURNETTE, Appellant.
No. 07-1476.
United States Court of Appeals, Eighth Circuit.
Submitted: December 11, 2007.
Filed: March 11, 2008.
*943 Terry L. Pechota, argued, Rapid City, SD, for Appellant.
Mara K. Kohn, Assistant U.S. Attorney, argued, Rapid City, SD, Jay Miller, Assistant U.S. Attorney, (on the brief), Pierre, SD, for Appellee.
Before COLLOTON, BEAM, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Shawn Lee Burnette pled guilty to one count of conspiracy to distribute, or possess with intent to distribute, methamphetamine. *944 The district court[1] sentenced him to 188 months in prison. Burnette appeals contending that the district judge should have recused, the determination of drug quantity was in error, two levels for acceptance of responsibility should have been awarded, the district court misapprehended its discretion to sentence under 18 U.S.C. § 3553(a), and the sentence was unreasonable. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court affirms.
II.
Shawn Burnette was indicted on one count of conspiracy to distribute, or possess with intent to distribute, methamphetamine and one count of conspiracy to manufacture meth, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Burnette pled guilty to the distribution count without a plea agreement.
After plea, but before sentencing, Burnette was called by the defense to testify at the sentencing of Rudy Garcia, a co-conspirator. At Garcia's sentencing, Burnette testified that Garcia had not sold illegal drugs, there were not many drug dealers on the Rosebud Reservation, and an FBI agent lied about Burnette's earlier statements. The judge did not believe Burnette, finding he "was lying." After the hearing, the government advised Burnette's counsel that he had testified and was found not credible. Burnette was sentenced by the same judge who sentenced Garcia. At the beginning of the hearing, the judge asked Burnette's counsel whether he was aware of the adverse findings made at the Garcia sentencing. Counsel responded that he was aware.
The PSR attributed 3,647.47 grams of meth to Burnette, for a base offense level 34. The PSR also recommended a two-level enhancement for possession of a gun, and disallowance of a two-level reduction for acceptance of responsibility because Burnette admitted to only eight percent of the drug amount attributed to him. With no criminal history, Burnette's recommended guideline range was 188 to 235 months. Burnette objected to the drug quantity, the firearm enhancement, and the denial of acceptance-of-responsibility credit.
Because Burnette objected to the PSR, the government began calling witnesses. One witness testified that he told law enforcement he purchased meth from Burnette 300 to 400 times, but later changed his statement to 20 times. Asked to explain the change, the witness testified that Burnette "threatened my family and me." The court told Burnette that the witness's testimony could result in a serious charge against him, and recessed the hearing to allow Burnette to consult with counsel. After the recess, Burnette's counsel stated that they were going to "withdraw our objections to the presentence report and let it stand as it was originally issued by the probation officer." The government agreed not to seek additional charges against Burnette, or an obstruction-of-justice enhancement. The court asked Burnette if that was what he wanted to do, and he replied "Yes, sir." The court then denied all objections to the PSR as moot, and accepted the PSR guidelines range of 188 to 235 months. Recognizing that it "is required to consider not only the Federal Sentencing Guidelines but the statutory factors set forth in 18 United States Code, Section 3553," the court sentenced Burnette *945 to 188 months because it did "not believe this is an appropriate case for a variance."
II.
A.
Burnette argues that the district judge should have recused due to bias from his testimony at Garcia's sentencing. Burnette did not object, or move for recusal. Therefore, this court may review only for plain error. See Fletcher v. Conoco Pipe Line Co., 323 F.3d 661, 664 (8th Cir.2003).
A judge must recuse if "his impartiality might reasonably be questioned" because of bias or prejudice. 28 U.S.C. § 455. Bias and prejudice can result from knowledge that the judge should not possess. Liteky v. United States, 510 U.S. 540, 550, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), "[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Id. at 555, 114 S.Ct. 1147. "Rules against `bias' and `partiality' can never mean to require the total absence of preconception, predispositions and other mental habits." See United States v. Bernstein, 533 F.2d 775, 785 (2nd Cir.1976), cited with approval in, United States v. Thirion, 813 F.2d 146, 155 (8th Cir.1987).
The district judge here did not plainly error by not recusing sua sponte. It was proper for the judge to note that he had found Burnette not credible at Garcia's sentencing. See Thirion, 813 F.2d at 155 (recusal not required from Thirion's trial where judge previously stated at co-defendant's sentencing that Thirion's criminal conduct was greater than the co-defendant's).
Burnette argues that the sentence of 188 months demonstrates the judge's antagonism. After noting he found Burnette lied at Garcia's sentencing, the judge stated: "I firmly believe that this defendant is one of the or was one of the big time drug dealers on Rosebud." District courts must make these types of credibility determinations and findings of fact in order to sentence defendants individually. See 18 U.S.C. § 3553(a) (listing the sentencing factors the district court must consider for each defendant). A sentence at the low end of the advisory guideline range, for a defendant found to be a "big time drug dealer," does not demonstrate deep-seated antagonism that would make fair judgment impossible.
B.
Burnette asserts several sentencing errors. This court reviews the district court's interpretation and application of the guidelines de novo, and its factual findings for clear error. See United States v. Peterson, 455 F.3d 834, 837 (8th Cir.2006).
Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard. It must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence including an explanation for any deviation from the Guidelines range. Assuming that the district court's sentencing decision is procedurally sound, the appellate court should *946 then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.
Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Procedural sentencing errors are forfeited, and therefore may be reviewed only for plain error, if the defendant fails to object in the district court. See United States v. Pirani, 406 F.3d 543, 550 (8th Cir.2005) (en banc). A defendant need not object to preserve an attack on the substantive reasonableness of a sentence, however. See United States v. Wiley, 509 F.3d 474, 476-77 (8th Cir.2007) (no objection required to preserve error where a defendant asserts only that the length of the sentence is unreasonable), citing United States v. Torres-Duenas, 461 F.3d 1178, 1182-83 (10th Cir.2006) ("We have held that when the defendant fails to object to the method by which the sentence was determined, . . . we review only for plain error. But when the claim is merely that the sentence is unreasonably long, we do not require the defendant to object in order to preserve the issue.") (citation omitted).
Burnette claims that the district court erred in determining the drug quantity attributed to him. A drug quantity is a finding of fact reviewed for clear error when objected to at sentencing, or plain error if the defendant does not object. See United States v. Mickelson, 378 F.3d 810, 821 (8th Cir.2004). A defendant who withdraws all objections to the PSR, however, waives all arguments regarding those facts on appeal. See United States v. White, 447 F.3d 1029, 1032 (8th Cir.2006).
Burnette admits withdrawing his objections to the PSR, but contends that because he withdrew them after four witnesses testified, objections as to those witnesses were not withdrawn. The record indicates otherwise. Burnette's counsel stated, and Burnette agreed, that "we are going to, at this time, Your Honor, withdraw our objections to the presentence report and let it stand as it was originally issued by the probation office." This court need not address Burnette's arguments regarding drug quantity because he waived this argument. See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (explaining the difference between forfeiture which may receive plain error review, and waiver, which receives no review).
Burnette contends he should have received a reduction of at least two offense levels for acceptance of responsibility because he pled guilty. See U.S.S.G. § 3E1.1. Because Burnette withdrew all objections to the PSR, which denied credit for acceptance of responsibility, he also waived this argument on appeal. See United States v. Thompson, 289 F.3d 524, 526-27 (8th Cir.2002).
Burnette argues that the district court applied a presumption of reasonableness to a guidelines sentence, contrary to Rita v. United States, and misapprehended its discretion under 3553(a), contrary to Gall v. United States both decided after his sentencing. See Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (a presumption of reasonableness for guidelines sentences is permissible, but only as "an appellate court presumption"); Gall, 128 S.Ct. at 594-95 (rejecting an appellate rule requiring "extraordinary" circumstances to justify a non-guidelines sentence, but allowing appellate courts to take the degree of variance from the guidelines range into account). This is a claim of procedural error. See Gall, 128 S.Ct. at 597 (treating the guidelines as mandatory is a procedural error).
After withdrawing his objections to the PSR, Burnette made no further objections *947 to his sentence. As Burnette did not object to the sentence, this court may review only for plain error. See Pirani, 406 F.3d at 550; United States v. Guarino, 517 F.3d 1067 (8th Cir.2008). Under plain error review, it is the defendant's burden to prove (1) there was error, (2) that was plain, and (3) affects substantial rights. See Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); Fed. R.Crim. Pro. 52(b). The appellate court should exercise its discretion to correct the error only if it "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." See Johnson, 520 U.S. at 467, 117 S.Ct. 1544, quoting, Olano, 507 U.S. at 732, 113 S.Ct. 1770 (alteration in original).
At sentencing, the district court stated:
I know that the Court of Appeals is very tough on variances, sentencing outside the guidelines. A sentence within the guidelines is presumed to be reasonable, and it appears to me that sentences below the guidelines range to amount to anything are not easily accomplished.
In light of Rita and Gall, the district court (understandably) erred. See Rita, 127 S.Ct. at 2465; Gall, 128 S.Ct. at 597; United States v. Greene, 513 F.3d 904, 907 (8th Cir.2008) (district court erred by stating "I do not believe based on current Eighth circuit law that I am permitted to do a variance in this case"). Further, this error is plain. See Johnson, 520 U.S. at 468, 117 S.Ct. 1544 ("[W]here the law at the time of trial was settled and clearly contrary to the law at the time of appeal it is enough that an error be `plain' at the time of appellate consideration.").
The issue is whether the error affected a substantial right. An error affects a substantial right if it is prejudicial. See Olano, 507 U.S. at 734, 113 S.Ct. 1770. In sentencing, an error is prejudicial if there is a reasonable probability the defendant would have received a lighter sentence but for the error. See Pirani, 406 F.3d at 552 ("[B]efore we may consider whether to exercise our discretion . . . to review a forfeited Booker error, the defendant must show a `reasonable probability,' based on the appellate record as a whole, that but for the error he would have received a more favorable sentence.").
Burnette emphasizes the district court's statement: "Congress has made the decision, and I have to follow the law whether I agree with it or not, that people doing drugs, selling drugs, should be locked up for long periods of time." He argues this statement demonstrates a reasonable probability the district court would have given him a lighter sentence, because the offense he pled guilty to did not have a mandatory minimum sentence. This statement was not made in the context of determining Burnette's specific sentence, however. The district court made this statement while discussing others convicted of drug offenses on the Rosebud Reservation. The district court was expressing a general belief that treatment, rather than lengthy prison terms, might better serve drug offenders on the reservation. In context, this statement does not show a reasonable probability that the district would have given Burnette a shorter sentence.
The district court did express some disagreement with the guidelines:
I never have liked these Federal Sentencing Guidelines, I think they are terrible, and I have expressed that about a thousand times, but at least with the drug guidelines, the sentence is basically the same whether you are in Sioux City or Pierre or Rosebud. Native Americans are not singled out as they are with the rest of these sentencing guidelines. . . . I agree that they are too *948 harsh, that isn't the way that I would do it, but that's what we have. Congress does lots of things all the time that I don't agree with, but I can't do anything about it.
Relating specifically to Burnette's sentence, the district court stated:
In the time that I have been on the bench since 1995, I have not seen a case go downhill in the manner that this case has. This defendant reminds me of the adage that some people have expressed about Iraq, when you get yourself into a hole, stop digging, and this defendant never stopped digging, from day one. . . . If the defendant had been sentenced with an obstruction of justice enhancement, his minimum sentence would be 20 years. . . . [O]f course a federal judge takes a very dim view of anybody threatening a witness under any circumstances or even interfering with the process of the courts, and I have hammered a lot of people, I'm talking of course defendants, on those kind of activities. . . . I think [Burnette's] denials here have all been not truthful, but he did plead guilty, as [Burnette's counsel] points out. And I firmly believe that this defendant is one of the or was one of the big time drug dealers on Rosebud. . . . [T]he last thing we need is somebody bringing methamphetamine into these environments where there's so much violence, so much abuse of alcohol, hopelessness, people dropping out of school. . . . [T]he defendant was off on the wrong track here from virtually day one, and as I said, he's taken a pistol and shot himself in the foot and then reloaded several times in addition. . . . In this case I find no reason to sentence outside the guidelines and I'm going to sentence the defendant within the federal guidelines sentencing range. . . . I realize that this defendant is receiving a longer[,] or is going to receive a substantially longer[,] sentence than some of these other people involved in this drug conspiracy, but he has caused that himself.
Given the district court's view of Burnette's actions, Burnette has not met his burden to prove a reasonable probability that he would have received a lighter sentence. Cf. Greene, 513 F.3d at 907 (remand for resentencing where district court explicitly stated that it would have given a shorter sentence if it had the opportunity); United States v. Huff, 514 F.3d 818, 820 (8th Cir.2008) (same).
Burnette contends (in pre-Gall briefing) that it was improper to calculate the guidelines range, then consider whether a variance was warranted. This is a claim of procedural error, see Gall, 128 S.Ct. at 596-97, reviewed here for plain error. See Pirani, 406 F.3d at 550. There is no error, however, as this is the exact procedure that is required. See Gall, 128 S.Ct. at 596-97 (a district court should first calculate the applicable guidelines range, then, after hearing argument from the parties, consider whether the 3553(a) factors support a sentence requested by a party).
Burnette asserts that the district court did not adequately explain its reasons for a guidelines sentence. This, too, is a claim of procedural error, see Gall, 128 S.Ct. at 596-97, reviewed here for plain error. See Pirani, 406 F.3d at 550. "[W]hen a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation." Rita, 127 S.Ct. at 2468. The district court listened to all of Burnette's arguments supporting a non-guidelines sentence, discussed several 3553(a) factors including his criminal history, family history, employment, education, and the impact on Burnette's family. The district court *949 then stated that it "considered all the factors set forth in 3553 and I do not believe this is an appropriate case for a variance." There is no error as this is enough to "satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority." Rita, 127 S.Ct. at 2468.
Burnette argues that the district court considered an improper factor his testimony at the Garcia sentencing. This is a claim of procedural error, reviewed here for plain error. See Pirani, 406 F.3d at 550. The district court did question why Burnette had testified at Garcia's sentencing. However, it did not "impose a greater sentence" because he exercised this right, as Burnette contends. The district court simply stated that it had found Burnette not credible at that hearing, and that it also found him not credible at this hearing. The credibility of a defendant is a proper factor for a district court to consider. See 18 U.S.C. § 3553(a)(1) (requiring district courts to consider the characteristics of the defendant). Therefore, there is no error.
Finally, Burnette attacks the sentence as unreasonable, essentially arguing that the district court did not give enough consideration to his arguments for a non-guidelines sentence. This addresses the substantive reasonableness of the sentence, and is reviewed for an abuse of discretion. See Wiley, 509 F.3d at 477. Burnette was found responsible for over 3,600 grams of meth, and to have lied at sentencing. Nothing in the record indicates that the district court abused its discretion, or that a 188 month sentence is unreasonable in this case. See Gall, 128 S.Ct. at 597 ("The sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case.").
III.
The judgment and sentence of the district court is affirmed.
NOTES
[1] The Honorable Charles B. Kornmann, United States District Court for the District of South Dakota.
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36 F.3d 775
63 USLW 2307
Paul RICKETTS, Sr., Plaintiff-Appellant,Paul Ricketts, Survivor of Marge Ricketts; KimberlyStephens; Plaintiffs,Kimberly Roth, Plaintiff-Appellant,v.CITY OF COLUMBIA, MISSOURI, Defendant-Appellee,Ben White, Officer; Ernie Barbee, Chief of Police, City ofColumbia; John Doe, Unknown Officers A-X; Lawrence Brady;Craig Klein; B. Arnold; Dennis Veach; Randy Boehm;Joseph Fagiolo; C. Antimi; L. Calvert, Defendants.Association of Trial Lawyers of America, Amicus Curiae.
No. 93-3633.
United States Court of Appeals,Eighth Circuit.
Submitted April 14, 1994.Decided Oct. 11, 1994.Rehearing and Suggestion for RehearingEn Banc Denied Dec. 9, 1994.*
Michael W. Manners, Independence, MO, argued, for appellant.
Eugene K. Buckley, St. Louis, MO, argued (John S. McCollough, on the brief), for appellee.
Before HANSEN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.
HANSEN, Circuit Judge.
1
Kimberly Roth and her father, Paul Ricketts (the plaintiffs), appeal the district court's1 grant of judgment as a matter of law in favor of the City of Columbia, Missouri, in their action brought pursuant to 42 U.S.C. Sec. 1983. The plaintiffs sued the City alleging that it carried out a discriminatory custom of treating domestic abuse cases less seriously than nondomestic abuse cases, which was based upon an intent to discriminate against women. The plaintiffs contended that as a result of this custom, Kimberly's husband at the time, Sonny Stephens, harassed and sexually assaulted Kimberly and murdered her mother, Marge Ricketts. The district court set aside a jury verdict in favor of the plaintiffs in the amount of $1,200,000, concluding that the plaintiffs failed to establish the essential elements of their Sec. 1983 equal protection claim. 856 F.Supp. 1337. We affirm.
I. Background
2
Kimberly met Sonny Stephens in 1978. They began to live together shortly thereafter and married in 1982. Their relationship was riddled with argument and abuse. They temporarily separated several times, once because Sonny was incarcerated. When Sonny was at home, he often abused Kimberly both verbally and physically.
3
On September 11, 1986, Kimberly sought and received an ex parte order for protection from the Boone County Circuit Court. In her petition, she stated that she feared Sonny because he "has broke[n] my nose" and "threaten[e]d to kill me if I leave him." (Jt.App. at 224.) The Boone County Circuit Court ordered Sonny to refrain from "[a]busing, threatening to abuse, molesting or disturbing the peace of the petitioner ... or [e]ntering the dwelling of petitioner, located at 909 Grand, Columbia, Mo." (Id. at 227.)
4
After obtaining the protection order, Kimberly and her five children moved from the court order protected location at 909 Grand into her parents' (Paul and Marge Ricketts') home at Holly Park Trailer Court. Sonny was visiting a friend who lived across the street from the Ricketts' home, and he saw Kimberly and her father return from the courthouse. Sonny became enraged and began yelling threats. Kimberly called the sheriff's office and requested that they serve Sonny with the protection order. The sheriff's office responded within ten minutes and served Sonny with the protection order. Paul Ricketts and the sheriff overheard Sonny say that he was going to get a shotgun, and Kimberly knew that Sonny had a shotgun in their home at 909 Grand. The Ricketts called 911 and officers searched the home at 909 Grand but were unable to find either Sonny or a shotgun. When Sonny returned to his friend's trailer across the street from the Ricketts' home, he had a sawed-off shotgun and he continued yelling threats. Kimberly called the police again, discovered that officers had been sent to 909 Grand, and requested protection at her parents' home. About 20 police officers responded to this call and surrounded the home. Sonny finally came outside, but without the shotgun. Eventually, Sonny was subdued. He was allowed to leave the area without being arrested.
5
That night, Kimberly's father's pickup truck was vandalized. When a police officer responded to a call about the vandalism the next morning, Kimberly told him that she was concerned about Sonny's shotgun and that she believed Sonny was keeping it in his friend's home across the street. The officer questioned Sonny's friend, who surrendered the weapon. During the next week, Sonny telephoned the Ricketts' home repeatedly, but Kimberly refused to talk with him. Sonny knocked on Kimberly's bedroom window one evening, and at another time, he threatened that if she did not return home he would kill her or someone in her family. Kimberly and her family called the police as a result of these threats, but Sonny was never arrested.
6
Only a week after receiving the protection order, Kimberly decided to go back to Sonny in an effort to protect herself and her family from his threats. Kimberly and the five children moved back into their home at 909 Grand, and on September 19, 1986, Kimberly and Sonny filed a signed document with the Boone County Circuit Court in which both parties consented to terminate the protection order. The abuse worsened after Kimberly returned home, but Kimberly did not report further abuse to the police until March 20, 1987, when she again sought and received a protection order.
7
This second ex parte order of protection prohibited Sonny from, among other things, threatening, disturbing, or "enter[ing] upon the premises of [her] dwelling." (Id. at 234.) This order became a full order of protection on April 3, 1987. Despite the protection order, Sonny continued to call and threaten Kimberly and her family, often while sitting outside in the area around the Ricketts' home where Kimberly again was staying. Kimberly, her family, and her lawyer called the police several times during late March and early April 1987 due to Sonny's continued harassment, but Sonny was never arrested. On one occasion during that period, an officer came to the Ricketts' home to take a report. No physical abuse occurred or was reported after entry of the protection order.
8
On April 7, 1987, at about 7:30 a.m., Kimberly was in the living room of her parents' home with her mother and her youngest daughter when Sonny entered the home without notice and began an argument. Sonny threatened Kimberly with a shotgun (not the same shotgun previously confiscated). When Kimberly's mother attempted to intervene and calm the situation, Sonny shot her in the stomach. She died later that day. Sonny then dragged Kimberly away to a nearby woods, where he sexually assaulted her. He released her one-and-one-half hours later.
9
The plaintiffs, Kimberly and her father, filed suit pursuant to 42 U.S.C. Sec. 1983 against the City of Columbia, Missouri, Police Department and several of its personnel, seeking to obtain compensation for the injuries caused by Sonny's conduct of continued harassment, sexual assault, and murder. The individual defendants were dismissed on grounds of qualified immunity, and the case went to trial against only the City. At trial, the plaintiffs argued that the City violated their rights under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution on the basis of sex discrimination. They contended through use of statistics and testimony that the City maintained a discriminatory custom of treating domestic abuse less seriously than nondomestic abuse cases, that victims of domestic abuse are most often women, and that this discriminatory custom caused their injury by "emboldening" Sonny to continue his abusive behavior without fear of arrest.
10
The jury returned verdicts in favor of the plaintiffs, specifically awarding Kimberly $200,000 for the harassment she endured while the protection orders were in effect and $200,000 for the sexual assault on April 7, 1987; and awarding the plaintiffs $800,000 for the April 7, 1987, murder of Marge Ricketts. The district court set aside the verdicts, granting the City's renewed motion for judgment as a matter of law. The district court assumed without deciding that the City had an unwritten policy or custom that resulted in unequal treatment of domestic assaults vis-a-vis nondomestic assaults and reasoned that the plaintiffs (1) failed to prove that the custom caused Marge Ricketts' death or Kimberly's rape, (2) failed to prove that the custom was intended to result in invidious discrimination against women, and (3) failed to identify the final policymaker who had knowledge of the discriminatory custom. The plaintiffs appeal the district court's grant of judgment as a matter of law.
II. Discussion
11
"In reviewing the district court's grant of JAML [judgment as a matter of law], we apply the same standard that governed the district court." Jacobs Mfg. Co. v. Sam Brown Co., 19 F.3d 1259, 1263 (8th Cir.1994). Considering the evidence in the light most favorable to the nonmovant, judgment as a matter of law is not appropriate "unless all the evidence points one way and is susceptible of no reasonable inferences sustaining [the nonmovant's] position." Id.
12
Section 1983 provides a cause of action against any "person who, under color of any statute, ordinance, regulation, custom, or usage, of any State" causes the deprivation of a right protected by federal law or the United States Constitution. 42 U.S.C. Sec. 1983. A municipality may be held liable as a "person" under Sec. 1983. Monell v. New York City Dep't of Social Serv., 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1977). A municipality is not constitutionally required "to protect an individual against private violence," but a municipality may not operate under a custom in which it "selectively den[ies] its protective services to certain disfavored minorities without violating the Equal Protection Clause." DeShaney v. Winnebago County Dep't of Social Serv., 489 U.S. 189, 197 & n. 3, 109 S.Ct. 998, 1004 & n. 3, 103 L.Ed.2d 249 (1989).
13
Whether a municipality discriminates against women by failing to treat complaints of domestic abuse as seriously as complaints of nondomestic abuse is a question of first impression in this circuit. Three other circuits, however, are not unfamiliar with the issue. See McKee v. City of Rockwall, 877 F.2d 409, 413 (5th Cir.1989) (denying interlocutory appeal to the city for lack of jurisdiction, but addressing this equal protection issue with regard to the officers' claims of immunity), cert. denied, 493 U.S. 1023, 110 S.Ct. 727, 107 L.Ed.2d 746 (1990); Hynson v. City of Chester, 864 F.2d 1026, 1032-33 (3d Cir.1988) (remanding this equal protection issue for consideration of the standard enunciated therein); Watson v. City of Kansas City, 857 F.2d 690, 696 (10th Cir.1988) (affirming the grant of summary judgment in favor of the city on the plaintiff's gender discrimination claim). The following standard emerges from these cases:
14
In order to survive summary judgment, a plaintiff must proffer sufficient evidence that would allow a reasonable jury to infer that it is the policy or custom of the police to provide less protection to victims of domestic violence than to other victims of violence, that discrimination against women was a motivating factor, and that the plaintiff was injured by the policy or custom.
15
Hynson, 864 F.2d at 1031 (footnote omitted) (citing Watson, 857 F.2d at 694).
16
We believe that this standard adequately sets forth the basic elements of proof under the framework of Sec. 1983 because it requires the plaintiff to prove: (1) a constitutional violation--that the municipality has a custom of providing less protection to victims of domestic abuse with an intent to discriminate against women on the basis of their gender, and (2) that the constitutional violation was caused by a person acting under color of state law--that the unconstitutional municipal custom caused the plaintiffs' injuries. We begin our analysis of the case at hand with the causation requirement.
A. Causation
17
Assuming the existence of an unconstitutional municipal custom, a Sec. 1983 claimant cannot recover unless the claimant also proves that the custom caused the resulting injury. See Monell, 436 U.S. at 694, 98 S.Ct. at 2037. "[I]t is when execution of a government's policy or custom ... inflicts the injury that the government as an entity is responsible under Sec. 1983." Monell, 436 U.S. at 694, 98 S.Ct. at 2037 (emphasis added). "Thus, our first inquiry in any case alleging municipal liability under Sec. 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation." Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1202, 103 L.Ed.2d 412 (1989). "[U]nder Missouri law of proximate causation, to which we may look in applying Sec. 1983, it is enough that the defendant's fault was a 'substantial factor' in producing the plaintiff's injuries, and the defendant's fault need not have been the sole proximate cause in order to allow recovery." Trudeau v. Wyrick, 713 F.2d 1360, 1367 (8th Cir.1983). Thus, the relevant inquiry for determining causation is as follows: "Would the injury have been avoided had" there not been a municipal custom of treating domestic abuse less seriously than nondomestic abuse? Canton, 489 U.S. at 391, 109 S.Ct. at 1206.
18
Causation is generally a jury question unless, in a particular case, the question is "so free from doubt as to justify taking it from the jury." Trudeau, 713 F.2d at 1366-67. "As long as the causal link is not too tenuous, the question whether the municipal policy or custom proximately caused the constitutional infringement should be left to the jury." Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir.1990).
19
In the case at hand, to find that the injuries caused by Sonny's violent acts of sexual assault and murder would have been avoided had Sonny been arrested for the prior harassment would be an exercise in pure speculation. Such speculation cannot establish causation because it is equally plausible that an arrest for the prior harassment might as easily have spawned retaliatory violence from Sonny. Holding that an officer's failure to arrest for one incident of harassment causes a subsequent incident of harassment or violence would essentially take away the officer's discretion to determine when to arrest--a fundamental part of our criminal system. See McCleskey v. Kemp, 481 U.S. 279, 297, 107 S.Ct. 1756, 1769, 95 L.Ed.2d 262 (1987) ("discretion is essential to the criminal justice process"). This in turn "would open municipalities to unprecedented liability under Sec. 1983." Canton, 489 U.S. at 391, 109 S.Ct. at 1206. A municipality which, in order to protect itself against the kind of claim brought by the plaintiffs here, directed its officers to arrest every person against whom an allegation of spousal abuse was made would undoubtedly find itself facing Section 1983 claims of unconstitutional arrest without probable cause.
20
Additionally, the prior reported incidents of harassment here were too remote in time to constitute a proximate cause of the violent attack on April 7, 1987. The September 1986 shotgun incident occurred seven months before the April 7 incident, and no similar episodes occurred during the intervening period. The decisions not to arrest Sonny for the incidents of verbal harassment reported in late March and early April 1987 were closer in time but not so closely connected to or related to the April 7 attacks as to constitute a proximate cause of the attacks. There is no evidence that the police were called on April 7 and failed to respond. The evidence shows that the police were not called until after the violence occurred on April 7, so there was no realistic opportunity for the police to provide protection on that occasion.
21
The only causal link that might logically exist is a tenuous connection between the prior harassment, for which no arrests were made, and Sonny's continued harassment. There is no question that Sonny harassed Kimberly while the two protection orders were in effect and that this constituted a violation of the protection orders for which Sonny was not arrested. While arrest or additional attention from the police might have dissuaded Sonny from continuing to harass Kimberly, see Bielevicz, 915 F.2d at 851 ("it is logical to assume that continued official tolerance of repeated misconduct facilitates similar unlawful actions in the future") (citing Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985)), there is no evidence that a prior arrest for harassment would have prevented Sonny's unforeseen violent criminal acts on April 7, 1987. The violent acts were not foreseeable to the police because no similar acts had been reported. We conclude that a reasonable jury could not have found that the police custom of disparate treatment, if it existed, was a substantial factor in producing Kimberly's rape or Mrs. Ricketts' murder.
B. Constitutional Violation
22
The plaintiffs argue that the district court erred by concluding that they did not set forth a submissible case on the issue of gender discrimination. Upon analysis, we agree with the district court.
23
Under the standard set forth in Hynson and Watson, an equal protection claim arises upon a showing that "it is the policy or custom of the police to provide less protection to victims of domestic violence than to other victims of violence, [and] that discrimination against women was a motivating factor" behind this policy or custom. Hynson, 864 F.2d at 1031; see also Watson, 857 F.2d at 694. We agree that if discrimination against women were the purpose behind a municipal custom of providing less protection for victims of domestic abuse, then an equal protection claim would arise. In this case, the plaintiffs demonstrated a pattern of fewer arrests in cases of domestic violence, but the plaintiffs failed to produce evidence from which a reasonable jury could determine that this pattern proved a policy which was motivated by an intent to discriminate against women.
24
When a widespread custom of a municipality impacts disproportionately on one gender, an equal protection violation arises "only if that impact can be traced to a discriminatory purpose." Personnel Admin. of Mass. v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292, 60 L.Ed.2d 870 (1979). The disproportionate impact is only relevant to the extent that it "reflects a discriminatory purpose." Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976). A discriminatory purpose is more than a mere "awareness of the consequences." Feeney, 442 U.S. at 279, 99 S.Ct. at 2296. The law or custom must be found to have been implemented "at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." Id.
25
When a municipal custom employs a facially neutral classification and its disproportionate impact on one gender is not susceptible to a neutral explanation, "impact itself would signal that the real classification made by the law was in fact not neutral." Feeney, 442 U.S. at 275, 99 S.Ct. at 2294. However, in only a few cases, where a facially neutral policy impacted exclusively against one suspect class and that impact was unexplainable on neutral grounds, has the impact alone signalled a discriminatory purpose. See Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). When there is a rational, neutral explanation for the adverse impact and the law or custom disadvantages both men and women, then an inference of discriminatory purpose is not permitted. See Feeney, 442 U.S. at 275, 99 S.Ct. at 2294.
26
[W]hen the adverse consequences of a law [or custom] upon an identifiable group are as inevitable as the gender-based consequences ... a strong inference that the adverse effects were desired can reasonably be drawn. But in this inquiry--made as it is under the Constitution--an inference is a working tool, not a synonym for proof. When, as here, the impact is essentially an unavoidable consequence of a [legitimate neutral policy or custom] the inference simply fails to ripen into proof.
27
Id. at 279 n. 25, 99 S.Ct. at 2296 n. 25. In sum, when determining whether there is a showing of discriminatory intent, disproportionate impact is but one factor to consider along with the inferences that rationally may be drawn from the totality of the other relevant facts. See Davis, 426 U.S. at 241, 96 S.Ct. at 2048.
28
The plaintiffs offered the expert testimony of Dr. Eve Buzawa who had gathered statistics indicating that the Columbia police department makes fewer arrests in domestic abuse cases than in nondomestic cases. Dr. Buzawa's opinion was based upon assault reports from portions of the previous year. Dr. Buzawa testified that the custom of disparate treatment for victims of domestic abuse adversely impacts women to a greater extent than men because over 90% of the victims of domestic abuse are women. The disproportionate impact is not exclusively suffered by women, however, because the classification itself is facially neutral and includes male victims of domestic abuse. There is no evidence that male victims of domestic abuse are treated differently than female victims of domestic abuse.2
29
We must discern whether there is a rational explanation for the disparate impact on women. Because of the inherent differences between domestic disputes and nondomestic disputes, legitimately different factors may affect a police officer's decision to arrest or not to arrest in any given situation. Dr. Buzawa's statistics took into account some of the variables that affect a decision to arrest in domestic disputes, but we believe that not all of the differences that enter into the discretionary decision of whether to arrest3 can be properly assessed and quantified through statistics. See Watson, 857 F.2d at 695 ("Whether or not probable cause exists is not susceptible to statistical quantification"). Police "discretion is essential to the criminal justice process." McCleskey, 481 U.S. at 297, 107 S.Ct. at 1769. "Where the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious." Id. at 313, 107 S.Ct. at 1778.
30
Because the statistical disparity alone does not signal an intent to discriminate against women, we look to whether the plaintiffs submitted any other evidence of a discriminatory intent. The plaintiffs introduced hearsay statements from members of the Ricketts family, but this evidence is insufficient. Kimberly's sister-in-law testified to statements allegedly made by a police officer to the effect that one man accused of domestic abuse should have been arrested before but was not. Kimberly's father testified that he heard that one officer had been instructed not to arrest Sonny because Kimberly had gone back to him before and probably would again. (Trial Tr. at 1289-91.) These statements are unreliable hearsay. More importantly, while they might offer support for a discriminatory intent toward domestic disputes, they do not evidence an intent to discriminate against women.
31
The plaintiffs also offered evidence of a historic tolerance of domestic abuse in society and of one fairly recent newspaper statement. A Columbia officer was quoted as blaming a woman victim of domestic abuse for bringing on the assault herself. The officer explained that the context of the statement related only to one particular case where he had seen that happen. (Trial Tr. at 1238-40.) These were the only factors directly bearing on gender discrimination, and they do not combine to create a submissible inference of a discriminatory animus toward women by the Columbia police department. Although we are sympathetic to the plaintiffs and we acknowledge that they have suffered greatly from the criminal acts of Sonny Stephens, we conclude that the plaintiffs have failed to present evidence of an equal protection violation on the basis of gender.
32
Having disposed of the case on the basis of lack of causation and lack of a constitutional deprivation, we find it unnecessary to reach the plaintiffs' claim that the district court erred by requiring them to identify a final policymaker of the municipality.
III. Conclusion
33
We conclude that from the evidence submitted by the plaintiffs, no reasonable juror could find that the plaintiffs were injured as a result of a widespread custom of the City which was intended to discriminate against women. Thus, the district court did not err in granting the City's renewed motion for judgment as a matter of law, and we affirm the judgment of the district court.
*
Arnold, Chief Judge, McMillian and Murphy, Circuit Judges, would grant the petition for rehearing with suggestion for rehearing en banc
1
The Honorable William A. Knox, United States Magistrate Judge for the Western District of Missouri, trying the case by consent of the parties pursuant to 28 U.S.C. Sec. 636
2
The Equal Protection Clause requires the government to treat similarly situated persons similarly, and dissimilar treatment of those not similarly situated does not result in an equal protection violation. Klinger v. Dep't of Corrections, 31 F.3d 727, at 731 (8th Cir.1994) (citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985)). A more accurate indicator of an intent to discriminate in this type of case would be a comparison of the arrest rate when men are victims of domestic abuse with the arrest rate when women are the victims. No such comparison was made in this case
3
We note that there was no mandatory arrest law governing the decision to arrest in a domestic abuse situation in Missouri at the time of the incidents involved in this case
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56 F.3d 73NOTICE: 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.
Raj Kumar SANDHI, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICES, Respondent.
No. 93-70719.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 9, 1995.Decided June 1, 1995.
Before: GOODWIN, SCHROEDER, and TASHIMA*, Circuit Judges.
1
MEMORANDUM**
2
Raj Kumar Sandhi appeals from the Board of Immigration Appeals' ("BIA") denial of his application for asylum and withholding of deportation. He disputes the BIA's determination that his testimony was not credible, that his interrogation by the police was a legitimate prosecutorial act and that, in any event, he was ineligible for asylum because he failed to show a nationwide threat of persecution. Because Sandhi cannot overcome the adverse credibility findings by the BIA, we affirm.
I. FACTS AND PROCEDURAL HISTORY
3
Raj Kumar Sandhi, a Sikh native and citizen of the Punjab, India, entered this country in August, 1991. On August 28, 1991, the Immigration and Naturalization Service ("INS") issued him with an Order to Show Cause, charging him with being deportable pursuant to 8 U.S.C. Sec. 1251a(1)(B) for entering the United States without inspection. Sandhi admitted deportability, but applied for asylum and withholding of deportation. At his hearing, Sandhi told the following story of political persecution.
4
Sandhi testified that his troubles began in September, 1990, when Sikh militants, who advocate the use of violence to create an independent Sikh state (Khalistan), came to his home to recruit him. He said he refused to join, and told them that, while he supported the creation of Khalistan, he did not believe the Sikh religion permitted the use of violent methods to achieve these ends. He said the militants warned him they would kill him if he should become involved in the government.
5
Sandhi said the militants repeated their demands a month later, again to no avail. He said that the militants threatened to kill him, but gave him another chance. According to Sandhi, his third and final encounter with the militants took place in February of 1991, when he again refused to join them, but again was given another chance to reconsider.
6
Sandhi told the IJ he was afraid the militants would carry out their threats. He testified that he knew of others who had been killed by Sikh militants after refusing to join them.
7
Sandhi also told the IJ about his troubles with the police, who came to his home in March, 1991, and told him they suspected him of involvement with the Sikh militants. Sandhi testified that he was taken to the police station, detained for three days, and so severely beaten with sticks that he required medical treatment upon his release, which was secured by a bribe paid by his family. He said the police accused him of being a militant and asked him the identities and whereabouts of other militants. Sandhi reported that, since coming to the United States, he has heard from his parents that both the police and the militants have been inquiring about him.
8
On October 15, 1992, the Immigration Judge ("IJ") denied asylum and withholding of deportation, because Sandhi was not credible and, in any event, not persecuted on account of political opinion. The IJ granted voluntary departure. The BIA affirmed.
II. DISCUSSION
9
We review credibility determinations for substantial evidence, Vilorio-Lopez v. INS, 852 F.2d 1137 (9th Cir. 1988), deferring to findings that are fairly supported by the record. Martinez-Sanchez v. INS, 794 F.2d 1396, 1400 (9th Cir. 1986) (citing Saballo-Cortez v. INS, 761 F.2d 1259, 1262 (9th Cir. 1984)).
10
An IJ's finding that a petitioner is not credible must be supported by "specific, cogent" reasons for disbelief. Berroteran-Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir. 1992) (citing Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir. 1987)). Not only must the IJ state the reasons for negative credibility findings, but these reasons must be both substantial and legitimately connected to the finding. Aguilera-Cota v. INS, 914 F.2d 1375, 1381 (9th Cir. 1990). That is, we require a "rational and supportable connection between the reasons cited and the conclusion that the petitioner is not credible." Aguilera-Cota, 914 F.2d at 1381.
11
The IJ was not convinced that Sandhi was telling the truth or, at the least, "telling an objective story." The IJ cited to seven points in Sandhi's testimony that cast doubt on the veracity of Sandhi's story.
12
First, the IJ found Sandhi's account of his initial meeting with the militants ambiguous because he first testified that he never saw them and then testified that he had in fact spoken with them. The transcript of the hearing shows that Sandhi said he had been at home asleep. He said the militants came into the house and spoke with his father. When the IJ asked whether Sandhi ever woke up and saw them during that visit, Sandhi said "No, I did not see them." The IJ immediately asked whether the visit occurred while Sandhi was asleep, to which he also replied no. After the IJ said that he didn't understand, Sandhi explained that he did in fact have an encounter with the militants on that occasion, that his father had called to him to come out and he did.
13
The IJ's second concern was with Sandhi's conflicting testimony as to whether he was frightened of the militants during his first encounter with them. Sandhi said he had not been afraid to tell the militants that the Sikh gurus taught that killing was wrong, but he had been scared that he would be killed for refusing to join them. Because the IJ found these two statements incompatible, he doubted whether Sandhi was telling the truth.
14
The IJ also found Sandhi's testimony about his second encounter with the militants to be contradictory. This run-in occurred outside his village and was apparently witnessed by no outsiders. Yet Sandhi told the IJ that he had been afraid the encounter would make the police suspicious of him. The IJ found it "strange" that Sandhi should have been afraid, because no outsiders saw him there.
15
Fourth, the IJ found Sandhi's testimony about his friends and acquaintances who had been persecuted to be "vague," particularly his inability to explain how he came by his knowledge of their abuse at the hands of the police.
16
Fifth, the IJ was particularly concerned by the "seeming conflict" in Sandhi's testimony about his interrogation by the police, in which he said the police suspected him of being a militant and asked the names of those who came to visit him. Sandhi told the IJ that he told the police he did not know, but that he did not tell them about the encounters. The IJ found Sandhi's testimony contradictory, because his testimony that he never told the police about the encounters made any questioning about the names of the "so-called militants" doubtful. Finally, the IJ was "concerned" about the lack of testimony about one of Sandhi's brothers, who is in the United States, and another brother in India, who remains untroubled by the police or militants. The IJ was not convinced by Sandhi's explanation that his brother's illiteracy explained the police or militants' lack of interest in him.
17
The BIA affirmed the IJ's adverse credibility findings. As the above summary indicates, substantial evidence supports the finding; thus, Sandhi has failed to meet his burden of persuasion on his claim of persecution. Saballo-Cortez v. INS, 761 F.2d 1259, 1262 (9th Cir. 1985); Berroteran-Melendez v. INS, 955 F.2d 1251, 1258 (9th Cir. 1992) ("Because the BIA expressly adopted the IJ's finding that Berroteran-Melendez's testimony lacked credibility, there is no basis for the claim of past persecution.")
18
Because substantial evidence supports the IJ's findings on credibility, we need not consider petitioner's other claims.
19
Affirmed.
*
Honorable A. Wallace Tashima, United States District Judge for the Central District of California, sitting by designation
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
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378 F.3d 799
Laura KINCAID, Plaintiff-Appellant,v.CITY OF OMAHA, Defendant-Appellee.
No. 03-3031.
United States Court of Appeals, Eighth Circuit.
Submitted: March 8, 2004.
Filed: August 9, 2004.
Appeal from the United States District Court for the District of Nebraska, Thomas D. Thalken, United States Magistrate Judge.
Thomas M. White, argued, Omaha, NE, for appellant.
Wendy E. Hahn, argued, Assistant City Attorney, Omaha, NE, for appellee.
Before RILEY, McMILLIAN, and MELLOY, Circuit Judges.
MELLOY, Circuit Judge.
1
Laura Kincaid ("Kincaid") worked as a Detention Supervisor at the City of Omaha jail. In 2000, she suffered a job-related injury that prevented her from working. While on leave, Kincaid expressed interest in a promotion, which she did not receive. She later returned to work and sustained another injury. After the City of Omaha ("City") again denied her the promotion, Kincaid filed this lawsuit, alleging discrimination in violation of the Americans with Disabilities Act ("ADA"), Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1981. The district court1 found that Kincaid made out a prima facie case of race and disability discrimination but failed to offer evidence to rebut the City's legitimate, nondiscriminatory reasons for its employment actions. The district court therefore granted summary judgment in favor of the City. We affirm.
I. BACKGROUND
2
Kincaid, an African American, began working at the City jail in 1982 as a Detention Technician I. She was promoted to Detention Technician II in 1990 and to Detention Supervisor in 1996. In December 1999, Kincaid suffered a work-related injury to her shoulder and wrist. She informed the City of her injury and sought medical treatment from Dr. Gregory Hansen ("Dr. Hansen"), an orthopedic surgeon.
3
In January 2000, Dr. Hansen diagnosed Kincaid's injury as "a clear impingement syndrome with [a] possible rotator cuff tear." (App. at 24.) Dr. Hansen scheduled Kincaid for surgery and advised her not to do any work. After Kincaid's surgery on February 2, 2000, Dr. Hansen examined her once in February, twice in March, and once in April. On each occasion, he advised Kincaid not to do any work, not even sedentary tasks involving less than ten pounds of lifting.
4
On May 19, 2000, Susan Riley ("Riley"), a Workers' Compensation Coordinator for the City, wrote Dr. Hansen a letter inquiring about Kincaid's ability to return to work. Riley stated, "[W]e are able to provide sedentary desk duty in a controlled work environment in which Ms. Kincaid could sit, stand, or walk as needed, and we can accommodate almost any restriction that would be necessary." (App. at 40.) In response, Dr. Hansen advised the City that Kincaid was unable to do any work. Dr. Hansen reached the same conclusion after examining Kincaid on June 2 and 13, 2000. Unable to work, Kincaid applied for leave under the Family and Medical Leave Act.
5
On June 29, 2000, while still out on leave and before she had received a work release from Dr. Hansen, Kincaid emailed Deputy Chief Barbara Hauptman ("Hauptman") to find out whether there were any jobs available at the jail that did not involve lifting, pulling, or potential confrontations with prisoners. Kincaid specifically inquired about the position of Detention Manager. Unlike the Detention Supervisor position, the Detention Manager position did not involve physical confrontations with prisoners. Instead of dealing directly with prisoners, the Detention Manager oversaw Detention Supervisors and Detention Technicians and was responsible for budgeting and personnel matters. Hauptman informed Kincaid that the current Detention Manager, Rick Powers ("Powers"), planned to resign soon.
6
Powers resigned on July 8, 2000. Thereafter, Kincaid again expressed an interest in the Detention Manager position to Hauptman. Despite Kincaid's interest, the City appointed Morgan Larson ("Larson") to temporarily fill the position. Larson had five years of experience as a Detention Supervisor at the City jail and previously worked as a lieutenant for the State Department of Corrections.
7
On July 12, 2000, a Benefits Manager for the City, Paul Murphy ("Murphy"), notified Kincaid that the City approved her June request for leave under the Family and Medical Leave Act. He also advised Kincaid that she must present a "fitness for duty certificate" before resuming employment with the City.
8
Kincaid did not receive a doctor's release to return to work until September 12, 2000. At that time, Dr. Hansen restricted Kincaid to light-duty, sedentary positions that did not involve a risk of physical confrontations with prisoners. Within two weeks of her return to work in September 2000, Kincaid sustained another shoulder injury for which surgery was required. She underwent surgery in October 2000 and continued to receive treatment from Dr. Hansen thereafter. Kincaid never returned to work in the jail.
9
On January 17, 2001, Kincaid applied for a Service Connected Disability Pension. At her hearing before the pension board, Kincaid stated that Dr. Hansen had not yet released her to perform even limited-duty jobs. Approximately one week later, Kincaid obtained a letter from Dr. Hansen, in which Dr. Hansen stated that Kincaid was not to return to work in the jail due to the risk of physical confrontations and further injury. Shortly thereafter, the board granted Kincaid a disability pension.
10
Three days after Kincaid applied for her disability pension, the City hired retired police Lieutenant Charles Benak ("Benak") to replace Larson as the Detention Manager. Like Kincaid, Benak is disabled and receives a disability pension.
11
In March 2002, Kincaid filed the present lawsuit, claiming that the City failed to promote her to the Detention Manager position because of her disability or race, in violation of the ADA, 42 U.S.C § 1981, and Title VII. The City moved for summary judgment on all counts. It challenged whether Kincaid had a qualifying disability under the ADA, and it denied that its employment actions were motivated by any discriminatory animus.
12
The City offered several non-discriminatory reasons for its employment actions. Omaha Police Chief Donald Carey ("Carey") and Hauptman testified that the City jail was in the process of being merged with the county jail when the Detention Manager position first became available in July 2000. The City anticipated the merger to take two to four years, and after its completion, the City planned to eliminate the Detention Manager position. Due to the temporary nature of the position, Carey and Hauptman did not believe a full-scale employee search was warranted.
13
The City also maintained that Kincaid was not considered for the Detention Manager position in July 2000 or January 2001 because she had not presented a doctor's release when those positions were available. According to the City, standard operating procedures required an injured employee to present a doctor's release before returning to work. The City's Administrative Manual, which outlines the standard operating procedures at the jail, provides that "[e]mployees who have a doctor's release for light duty ... may be assigned to a limited duty position within the department." (App. at 200.) The City further noted that Benefits Manager Murphy advised Kincaid that she must present a "fitness for duty certificate" prior to being restored to employment. Carey and Hauptman both testified that they did not consider Kincaid for the Detention Manager position because she failed to submit a doctor's release. Hauptman noted that at the time the City hired Benak, Kincaid was seeking a disability pension from the City and had represented that she was unable to do any work.
14
Finally, Carey testified that he selected Benak because Benak was well suited for the job. Carey believed that as a retired police lieutenant, Benak possessed a unique combination of experience, ability, and knowledge of police operations that would enable him to effectively manage the jail. Carey also thought Benak would facilitate the merger of the City and county jails.
15
Kincaid did not dispute that the City and county jails were undergoing a merger. Nevertheless, she maintained that the City's proffered legitimate reasons for hiring Larson and Benak were pretexts for unlawful discrimination. Kincaid claimed she was qualified for the Detention Manager position because she had previously performed that position on a temporary basis. Kincaid noted that Deputy Chief Brenda Smith testified that she (Kincaid) was a good employee, that Hauptman testified she should have been given an opportunity to interview for the Detention Manager position, and that some key decision-makers provided no reasons why she was not considered for the job. Kincaid further claimed that the decision to hire Benak had nothing to do with whether Kincaid had presented the City with a doctor's release. According to Kincaid, Police Captain Anthony Infantino ("Infantino") announced the hiring of Benak in September 2000 — after Kincaid had been released to work and before her second injury.
16
The district court found that Kincaid made out prima facie cases of disability and race discrimination, but held that she failed to show that the City's proffered legitimate reasons for its employment decisions were pretextual. It therefore granted summary judgment in favor of the City on each count. Kincaid then filed a motion for reconsideration, claiming that discovery conducted after the City filed its motion for summary judgment created a triable issue on the question of pretext. In her motion to reconsider, Kincaid moved to supplement the record with this additional evidence. The district court found that Kincaid's motion to supplement the record should be denied but nevertheless proceeded to analyze Kincaid's discrimination claims in light of the newly offered evidence. The district court denied Kincaid's motion to reconsider, again finding that Kincaid failed to rebut the City's legitimate reasons for not promoting her.2
II. APPLICABLE LAW AND DISCUSSION
A. Summary Judgment Standard
17
This Court reviews the district court's grant of summary judgment de novo. Jaurequi v. Carter Mfg. Co., 173 F.3d 1076, 1085 (8th Cir.1999). Summary judgment is appropriate if the record, viewed in a light most favorable to the non-moving party, contains no questions of material fact and demonstrates that the moving party is entitled to judgment as a matter of law. Id. The moving party bears the burden of showing both the absence of a genuine issue of material fact and an entitlement to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Fed.R.Civ.P. 56(c). Once the moving party has met its burden, the non-moving party may not rest on the allegations of his pleadings, but must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e).
B. ADA
18
We analyze Kincaid's ADA discrimination claim under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Christopher v. Adam's Mark Hotels, 137 F.3d 1069, 1071 (8th Cir.1998). Under this framework, Kincaid must first establish a prima facie case of discrimination based upon a disability under the ADA. See id.
19
"To establish a prima facie case under the ADA, [Kincaid] `must show that she is disabled within the meaning of the Act; [that] she is qualified to perform the essential functions of her job with or without reasonable accommodation; and [that] she suffered an adverse employment action because of her disability.'"
20
Id. at 1072 (alteration in original) (quoting Webb v. Mercy Hop., 102 F.3d 958, 959-60 (8th Cir.1996)). The burden then shifts to the City to proffer a legitimate, nondiscriminatory reason for the adverse employment action. See id. Once the City proffers such a reason, the burden shifts back to Kincaid to show that the City's stated reason is pretextual. See id.
21
For purposes of this appeal, we assume without deciding that Kincaid established a prima facie case of disability discrimination. Our analysis focuses, instead, on whether Kincaid presented sufficient evidence to rebut the City's legitimate, nondiscriminatory reasons for its employment actions. We find that Kincaid failed to meet her burden.
22
Carey and Hauptman asserted that Kincaid was not considered for the Detention Manager position in July 2000 or January 2001 because she was out on leave at those times and had not presented a doctor's release to indicate that she was able to return to work. The City claimed that standard operating procedures required an injured employee to present a doctor's release, or "fitness for duty certificate," prior to reinstatement. The City's assertion and Carey and Hauptman's testimony is supported by the following written evidence in the record: the City's Administrative Manual, Riley's letter to Dr. Hansen inquiring about Kincaid's ability to return to work and the City's willingness to accommodate any necessary restrictions, and Murphy's letter advising Kincaid that she must present a "fitness for duty certificate" prior to returning to work.
23
Kincaid offered no evidence to rebut the City's assertion that its standard operating procedures required injured employees to present a doctor's release prior to reinstatement, nor did she offer evidence showing that the City applied this policy more stringently to her than to other injured employees.3 There is no dispute that Kincaid failed to present a doctor's release to the City before it hired Larson. Indeed, the record indicates that Dr. Hansen did not approve Kincaid to perform any work until September 12, 2000 — more than two months after the City hired Larson. Based on these facts, no reasonable jury could find that the City's selection of Larson over Kincaid was motivated by discriminatory animus. The question remaining is whether Kincaid presented sufficient evidence to rebut the City's nondiscriminatory reasons for selecting Benak.
24
The parties dispute when the City hired Benak. Kincaid claims that while she was working during the two-week period between her injuries in September 2000, Captain Infantino informed her and other employees that Benak received the Detention Manager position. The City, on the other hand, claims it hired Benak after Kincaid re-injured herself and went on leave the second time. Even assuming the City made the decision to hire Benak in September 2000 when Kincaid was able to work, we find that Kincaid failed to meet her burden under the third prong of the McDonnell Douglas analysis.
25
Kincaid argues that the City's discriminatory animus is evinced by the fact that the City hired someone less qualified than her for the Detention Manager position. Although an employer's selection of a less qualified candidate "can support a finding that the employer's nondiscriminatory reason for the hiring was pretextual," it is the employer's role to "[i]dentify[] those strengths that constitute the best qualified applicant." Duffy v. Wolle, 123 F.3d 1026, 1037-38 (8th Cir.1997). This is so because "the employment-discrimination laws have not vested in the federal courts the authority to sit as super-personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination." Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir.1995).
26
In this case, the City claimed that Benak, a retired police lieutenant, had a unique set of skills that would facilitate the merger of the City and county jails and allow him to manage the jail effectively. The City presented evidence that Benak had a thorough knowledge of police operations, experience with budgets and mergers, and an ability to work with City and county officials. Kincaid did not dispute Benak's abilities, nor did she dispute the fact that the City and county jails were being merged. Instead, Kincaid maintained that she was more qualified than Benak because of her experience as a Detention Supervisor and the fact that she had occasionally filled in as the Detention Manager on previous occasions.
27
Viewed in the light most favorable to Kincaid, the record showed that Kincaid and Benak were both qualified for the Detention Manager position. However, to support a finding of pretext, Kincaid must show that the City hired a less qualified applicant. Duffy, 123 F.3d at 1037; cf. Lidge-Myrtil v. Deere & Co., 49 F.3d 1308, 1311 (8th Cir.1995) ("Although [an employee] does possess the experience and some of the other qualities essential for success in the position, this does not suffice to raise an inference that [the employer's] stated rationale for giving the position to another is pretextual."); Pierce v. Marsh, 859 F.2d 601, 604 (8th Cir.1988) ("The mere existence of comparable qualifications between two applicants, one black male and one white female, alone does not raise an inference of racial discrimination."). Based on the record, no reasonable jury could find that Benak was less qualified than Kincaid.
28
In sum, the record shows that Kincaid was not available to work at the jail when the City hired Larson and that Benak and Kincaid's qualifications were, at most, comparable. Because Kincaid offered insufficient evidence to rebut the legitimate reasons the City offered for its employment decisions, we affirm the district court's grant of summary judgment in favor of the City on Kincaid's ADA claim.
C. Race Discrimination
29
We also analyze Kincaid's racial discrimination claims under the McDonnell Douglas burden-shifting framework. Kim v. Nash Finch Co., 123 F.3d 1046, 1056 (8th Cir.1997) (stating that the McDonnell Douglas analysis applies to Title VII disparate treatment and § 1981 claims). Kincaid offered the same evidence of pretext in support of her racial discrimination claims as she did with respect to her ADA claim. As discussed above, this evidence is insufficient to rebut the legitimate, nondiscriminatory reasons put forth by the City. We therefore affirm the district court's grant of summary judgment in favor of the City on the racial discrimination claims.
30
Based on the foregoing, we affirm the judgment of the district court.
Notes:
1
The Honorable Thomas D. Thalken, United States Magistrate Judge for the District of Nebraska, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c)
2
We have considered the evidence Kincaid presented in the original motion for summary judgment as well as the additional evidence Kincaid presented in her motion to reconsider. Because we agree with the district court that this evidence combined is insufficient to survive summary judgment, we need not address the district court's alternative holding that Kincaid should not have been allowed to supplement the record
3
At oral argument, Kincaid's counsel argued that the City did not have a policy requiring injured employees to submit a doctor's release prior to reinstatement. Upon further questioning from the Court regarding the City's standard operating procedures and the letter in which Murphy advised Kincaid that she must present a "fitness for duty certificate" prior to resuming employment, Kincaid's counsel argued that the City required doctor's releases only from employees who wished to be reinstated to positions involving physical confrontations with prisoners. We find this argument wholly unsupported by the record
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1205
GEORGE FORBA NWANA,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General of the
United States,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A97-626-502)
Submitted: September 22, 2006 Decided: October 23, 2006
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Theodore Nkwenti, Silver Spring, Maryland, for Petitioner. Peter
D. Keisler, Assistant Attorney General, M. Jocelyn Lopez Wright,
OFFICE OF IMMIGRATION LITIGATION, Francesca U. Tamami, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
George Forba Nwana, a native and citizen of Cameroon,
petitions for review of an order of the Board of Immigration
Appeals affirming the immigration judge’s decision denying his
requests for asylum, withholding of removal, and protection under
the Convention Against Torture.
In his petition for review, Nwana challenges the
determination that he failed to establish his eligibility for
asylum. To obtain reversal of a determination denying eligibility
for relief, an alien “must show that the evidence he presented was
so compelling that no reasonable factfinder could fail to find the
requisite fear of persecution.” INS v. Elias-Zacarias, 502 U.S.
478, 483-84 (1992). We have reviewed the evidence of record and
conclude that Nwana fails to show that the evidence compels a
contrary result. Accordingly, we cannot grant the relief that he
seeks.
Additionally, we uphold the denial of Nwana’s request for
withholding of removal. “Because the burden of proof for
withholding of removal is higher than for asylum--even though the
facts that must be proved are the same--an applicant who is
ineligible for asylum is necessarily ineligible for withholding of
removal under [8 U.S.C.] § 1231(b)(3).” Camara v. Ashcroft, 378
F.3d 361, 367 (4th Cir. 2004). Because Nwana fails to show that he
- 2 -
is eligible for asylum, he cannot meet the higher standard for
withholding of removal.
We also find that substantial evidence supports the
finding that Nwana failed to meet the standard for relief under the
Convention Against Torture. To obtain such relief, an applicant
must establish that “it is more likely than not that he or she
would be tortured if removed to the proposed country of removal.”
8 C.F.R. § 1208.16(c)(2) (2006). We find that Nwana failed to make
the requisite showing before the immigration court.
Accordingly, we deny the petition for review. 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.
PETITION DENIED
- 3 -
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109 F.2d 703 (1940)
OLD POINT FISH CO., Inc.,
v.
HAYWOOD et al.
No. 4563.
Circuit Court of Appeals, Fourth Circuit.
February 7, 1940.
J. L. Morewitz, of Newport News, Va. (Morewitz & Morewitz, of Newport News, Va., and R. Arthur Jett, of Norfolk, Va., on the brief), for appellant.
Henry Bowden, of Norfolk, Va. (Bowden & Winder, of Norfolk, Va., on the brief), for appellees.
Before PARKER, Circuit Judge, and COLEMAN and CHESNUT, District Judges.
CHESNUT, District Judge.
This case presents an unusual if not novel question of admiralty law. A fishing vessel has been libeled and sold at the instance of lien claimants for repairs and supplies. Four members of the crew, whose compensation was to be based on a percentage of the proceeds of the catch, have filed intervening libels for an estimated percentage of the profit which might *704 have resulted from a catch which was not made, because the voyage was terminated a few days after it began by the necessary return of the vessel to port for repairs, and before they were made the vessel had been libeled. The repair and supply claims approximate $16,000, while the vessel sold for $5,900. The members of the crew contend that the sums due them, as for wages, are entitled to payment in priority to other lien claims. After testimony and hearing on these so-called wage claims, the district judge allowed each of the four members of the crew, as intervening libelants, the sum of $100 based on 46 U.S.C.A. § 594 as an analogous statute; and also allowed one member of the crew $50 for clothing left upon the ship and lost or not returned, and another $10 for similarly lost bedding.
The district judge did not make formal findings of fact, but in a brief opinion expressed the view that the crew had in effect been wrongfully discharged. The evidence in the record relating to the wage claims of the crew is in many respects vague and unsatisfactory but from it the district judge could have and apparently did find the following facts.
The ship libeled (named the St. Providenza II) was a motor vessel about 80 feet long, of 61 gross tons and 18 net tons, owned and operated by the master Philip Giammanco of Gloucester, Massachusetts. For several years prior to 1939 the vessel had been engaged in trawl fishing in the waters of the Atlantic, operating a part of each year out of Gloucester, and the remainder of the year out of Hampton, Virginia. A few days prior to March 29, 1939, the date on which the original libel in this case was filed, the vessel began a voyage from Hampton, Virginia, with a crew of seven men including the master, under an oral agreement whereby they were to work the vessel on what is called a "lay", the arrangement being in substance that the crew would furnish the food, ice and fuel and receive 60% of the gross proceeds of the catch, the ship owner to receive the remaining 40%. A few days thereafter, about 50 barrels of fish having been caught, the vessel developed engine trouble and was towed back to port. The fish caught were sold for about $200, which was less than the cost of the supplies furnished but not paid for by the crew, and later included among the libel claims against the ship. It was estimated that the making of the repairs would occupy three days, and the master instructed the crew, who lived nearby, to go home and await orders to return for a continuation of the voyage. It appears he gave one or more of them a sufficient sum for transportation home. Before the repairs were made the original libel was filed, and shortly thereafter several members of the crew filed their intervening libels, each claiming about $1,000 by way of damages for breach of contract of employment for the fishing season. The evidence did not show with any definiteness what constituted such a season, but there was some testimony to the effect that on somewhat similar voyages, one or more members of the crew had averaged on a percentage basis about $100 a month. At the hearing held on April 21, 1939, some of the members of the crew testified in effect that as a result of the voyage having been broken up they would probably be unable to obtain further employment of the same kind during the summer. On June 6, 1939, the district judge filed a brief memorandum opinion in which he expressed the thought that the statute mentioned, 46 U.S.C.A. § 594, by analogy furnished "as fair a standard by which to adjudge the claims of the seamen in this case as can be found". His order filed July 7, 1939 decreed that four members of the crew were entitled to recover the respective allowances "as a first lien upon the proceeds of said sale". From this order the other lien claimants have appealed.
There is nothing novel or unusual of itself in the kind of an oral agreement that we have here between the owner of the vessel and the crew for their compensation on a fishing voyage. Such an arrangement has been common practice from ancient times, United States v. Laflin, 9 Cir., 24 F.2d 683; 56 C.J. 1058. In such situations the fishermen crew are treated as seamen, and there have been numerous judicial decisions enforcing the rights of the crew against the owner and the ship. The Carrier Dove, 1 Cir., 97 F. 111, 112; The Z. R.-3, D.C., 18 F.2d 122; The Flk, D.C. Mass., 1938 A.M.C. 714, 724; Robinson on Admiralty (1939) 281, 282. See also 46 U.S.C.A. §§ 531-534. In Benedict on Admiralty, 5th Ed. Vol. I, p. 129, the applicable law is briefly summarized as follows:
"In the earliest periods of maritime commerce, a common form of compensating the mariner was by giving him, in one way *705 or another, an interest in the success of the voyage. In modern times, fixed pecuniary wages have taken the place of a share of the earnings, except in the cases of whaling, fishing, and sealing voyages, in which the ancient mode of compensation still prevails. * * * Where a fishing vessel is worked on the quarter lay plan, her crew have a lien, as for wages, upon the vessel, and catch on board, for their share of the catch."
And in The Georgiana, 1 Cir., 245 F. 321, 325, the court said:
"For the value of their respective shares in the catch taken, upon a trip made upon terms like the above ["quarter lay plan"], the members of a fishing crew have a lien upon the vessel and the catch on board, corresponding to the lien of seamen shipped for hire in the ordinary way, for their unpaid wages against vessel, cargo and freight pending, so long as anything remains of either."
The novel feature of the present case lies in the asserted priority of lien claimed for fishermen as wages in lieu of prospective and speculative shares of fish not caught because the voyage was terminated by the libel of the ship for repairs and supplies. No case has been brought to our attention where a prior lien as for wages has been allowed under such circumstances; and we do not think it can be properly established consistently with other principles of admiralty law.
In Piedmont & George's Creek Coal Co. v. Seaboard Fisheries Co., 254 U.S. 1, 12, 41 S.Ct. 1, 4, 65 L.Ed. 97, Mr. Justice Brandeis, speaking for the Court said:
"The maritime lien is a secret one. It may operate to the prejudice of prior mortgagees or purchasers without notice. It is therefore stricti juris and will not be extended by construction, analogy or inference."
In Collie v. Fergusson, 281 U.S. 52, 55, 50 S.Ct. 189, 191, 74 L.Ed. 696, Mr. Justice Stone states the general admiralty rule that "events subsequent to the seizure do not give rise to liens against a vessel in custodia legis. See The Young America (D.C.) 30 F. 789, 790; The Nisseqogue (D.C.) 280 F. 174, 181; The Grapeshot (D.C.) 22 F. 123. Cf. New York Dock Co. v. The Poznan, 274 U.S. 117, 47 S.Ct. 482, 71 L.Ed. 955." In Collie v. Fergusson, it was held that seamen, employed at a stipulated monthly wage, some part of which had not been paid upon the libeling of the ship, were not entitled to recover double wages under the applicable statute for the delay in payment of wages consequent upon the seizure of the ship; and in The Poznan, 274 U.S. 117, 47 S.Ct. 482, 71 L. Ed. 955, recovery of wharfage due under an agreement prior to the libel of the ship, accruing after her seizure, was disallowed, except as an expense of the libel proceeding.
In accordance with the general rule that maritime liens do not arise from matters happening subsequent to the legal seizure of the ship, it has uniformly been held (in the absence of an applicable statute or duly authorized continuing services of seamen) that no maritime lien can be allowed for wages to seamen accruing after the libeling of the ship. The Astoria, 5 Cir., 281 F. 618, 621; The Nisseqogue, D.C.N.C., 280 F. 174, 184; The Bethlehem, D.C.Pa., 286 F. 400, 402; The Philomena, D.C.Mass., 200 F. 873, 874; The Bethulia, D.C.Mass., 200 F. 876, 878; The Rupert City, D.C.Wash., 213 F. 263, 271; The Augustine Kobbe, D.C.Ala., 37 F. 696, 699; Id., C.C., 39 F. 559; The Irages, D.C., 283 F. 445. See also The Pacific Hemlock, D.C.Wash., 3 F.Supp. 305, 307, and Burdine v. Walden, 5 Cir., 91 F.2d 321. In Benedict on Admiralty, 5th Ed., § 585, the rule is stated that "seizure of a vessel under process, resulting in breaking up the voyage, operates as a discharge of the crew who, therefore, have no lien for further wages".
In the instant case it is clear that the crew had earned nothing from the catch up to the time of the seizure of the ship, and they performed no services thereafter, but apparently recognized the breaking up of the enterprise by the filing of their libel claims. See The Nisseqogue, supra; The Charles L. Baylis, D.C., 25 F. 862. Whether, if the fishing enterprise had not been broken up, they would subsequently have earned compensation for their share of the catch and if so the amount thereof, was wholly speculative, uncertain, and dependent upon future happenings. If they had been employed for a definite period at a definite wage they would not have been entitled to a prior lien for the wages accruing after the seizure of the ship even though the amount were certain. *706 A fortiori they were not entitled to a prior lien for compensation which might have been earned from a future catch wholly speculative in amount.
It is argued that when seamen are wrongfully discharged before normal expiration of their period of service they are entitled not only to the wages accrued up to the time of discharge, but also to damages for the wrongful discharge; and as they admittedly have a prior maritime lien for the wages actually earned, they should also have a lien for damages. While there are situations in which such damages have been allowed as a lien (The Wanderer, C.C. 20 F. 655; The Lakeport, D.C., 15 F.2d 575), the admiralty law does not allow a prior lien for damages consequential upon a legal arrest of a vessel, as we have above noted. Furthermore, even if the lien for damages could be admitted in the case of ordinary wages, it is clear, upon well established legal principles as to computation of damages, the amount is entirely too speculative in this case to be allowed. In Williams v. The Sylph, 1841, 29 F.Cas. page 1407, No. 17,740 it was pointed out that
"The present case is distinguishable from that of an ordinary hiring in this great particular: that the libelants, shipping for shares, have no specific lien on the vessel until the earnings of the vessel are ascertained and liquidated."
It is also suggested that it is only equitable to allow the seamen some damages here because the other lien claimants must have been guilty of laches in not more promptly enforcing their liens, but we find nothing in the record before us to support this contention; and it appears that one of the other lien claims filed is for supplies furnished for the particular voyage.
The intervening libels filed by the members of the crew each claimed from $900 to $1100 as their estimated shares of what might have been the future catch; but the district judge evidently concluded that no such allowance could be made because wholly speculative. In allowing four members of the crew each the sum of $100 he, by analogy, applied the statute (46 U.S.C.A. § 594) which provides that
"Any seaman who has signed an agreement and is afterward discharged before the commencement of the voyage or before one month's wages are earned, without fault on his part justifying such discharge, and without his consent, shall be entitled to receive from the master or owner, in addition to any wages he may have earned, a sum equal in amount to one month's wages as compensation, and may, on adducing evidence satisfactory to the court hearing the case, of having been improperly discharged, recover such compensation as if it were wages duly earned."
But we do not think the allowances can be supported on the analogy of this statute. As the agreement here was oral and not written it is obvious that the statute is not literally applicable to the case. More importantly it is to be noted that it was codified from R.S. § 4527, which was derived from the Act of June 7, 1872, c. 322, § 21, 17 Stat. 266; and by the Act of June 9, 1874, c. 260, 18 Stat. 64, (now codified as 46 U.S.C.A. § 544) section 594 was expressly made inapplicable "in any case where the seamen are by custom or agreement entitled to participate in the profits or result of a cruise, or voyage". Ross v. Bourne, D.C.Mass., 1883, 14 F. 858, 859, affirmed C.C., 17 F. 703; United States v. Bain, C.C.Me., 1880, 5 F. 192; Wilson v. Manhattan Canning Co., D.C., 205 F. 996. It also seems that the word "seaman" in 46 U.S.C.A. § 594, was not intended by Congress to include a fisherman "on a lay". See The Cornelia M. Kingsland, D.C., 25 F. 856; Telles v. Lynde, D.C., 47 F. 912. Compare Blackton v. Gordon, 303 U.S. 91, 92, 94, 58 S.Ct. 417, 82 L.Ed. 683; Collie v. Fergusson, 281 U.S. 52, 57, 50 S.Ct. 189, 74 L.Ed. 696.
The appellees place reliance on the early cases of The Page, 1878, 18 Fed.Cas. page 977, No. 10,660 and Woolf v. The Oder, 1802, 30 Fed.Cas. page 600, No. 18,027; but they do not support the contention here made. The Page dealt with the case of a fishing "lay" where the crew were allowed in addition to their proportionate share of the fish actually caught, a further sum estimated as the amount they would have received from an additional catch (proportionate to the actual catch) if the voyage had not been prematurely terminated by the fault of the master who had neglected to provide sufficient salt. The case is not in point here because the voyage was voluntarily terminated by the master before its normal expiration and not, as in this case, terminated by the attachment of the vessel. In Woolf v. The Oder a fishing lay was not involved but only ordinary wages; and *707 the case merely illustrates a well known early maritime practice by which seamen discharged without their fault, by the breaking up of the voyage at a place far distant from the port of shipment, by libel of the ship or otherwise, were allowed in addition to their accrued wages for services actually performed, a further sum, discretionary in amount but estimated to be sufficient to defray the expenses of their return to the place from where they shipped. Other cases illustrative of the same practice are Thompson v. The Oakland, 1841, 23 Fed.Cas. page 1064, No. 13,971; The Frank & Willie, D.C., 45 F. 488, 490; Alaska SS. Co. v. Gilbert, 9 Cir., 236 F. 715; and The Trader, D.C.S.C., 17 F.2d 623, 626. See also The Steel Trader, 275 U.S. 388, 392, 48 S.Ct. 162, 72 L.Ed. 326. It seems probable that this early maritime practice may have influenced the passage by Congress of the Act of December 21, 1898, c. 28, § 3, 30 Stat. 755; R.S. § 4526, now codified in 46 U.S.C.A. § 593, which, as amended March 5, 1934, c. 40, 48 Stat. 395, was made applicable to fishing and whaling vessels but not to yachts; and as amended now reads as follows:
"In cases where the service of any seaman terminates before the period contemplated in the agreement, by reason of the loss or wreck of the vessel, such seaman shall be entitled to wages for the time of service prior to such termination, but not for any further period. Such seaman shall be considered as a destitute seaman and shall be treated and transported to port of shipment as provided in sections 678, 679, and 681. This section shall apply to fishing and whaling vessels but not to yachts."
It will be noted that the statute literally applies only where the services of the seaman are terminated, "by reason of loss or wreck of the vessel"; and allows wages only for the time of service prior to the termination of the voyage. It is not necessary to now decide whether the statute supersedes or merely supplements the particular maritime practice referred to as neither supports the position here taken for the appellees.
We conclude therefore that the award of $100 to each of the appellees in this case for wages as a first or other lien on the proceeds of the sale of the vessel must be disallowed and the order appealed from must be modified in this respect. The question as to whether the appellees have a just claim against the owner of the vessel in personam is not presented on this appeal.
As to the allowance of $50 and $10 respectively to two members of the crew for loss of clothing and bedding, the evidence is meagre indeed. It appears, however, that this personal property was left upon the vessel when the owners left it expecting to return to complete the voyage, and was not thereafter recovered by them. In the absence of any evidence to explain the loss we think the allowance should not be disturbed. The Washington, D.C.N.Y., 296 F. 158, 166.
Modified.
PARKER, Circuit Judge (dissenting).
There can be no question but that a sharesman under a fishing lay is entitled to the usual maritime lien for seamen's wages upon the ship, as well as upon the catch or cargo. 56 C.J. 1065 and cases cited. The seizure of the vessel resulting in a breaking up of the voyage entitles him to any amount previously earned and to damages due to the discharge. The case is not different from any other case of discharge resulting from seizure of the vessel and consequent breaking up of the voyage, as to which see 56 C.J. 968; The Hudson, 12 Fed.Cas. page 805, No. 6,831; Van Beuren v. Wilson, 9 Cow., N.Y., 158, 18 Am.Dec. 491. In such case, wages accruing after the seizure do not constitute a lien on the vessel, but lien is accorded for wages earned prior thereto and damages resulting from the discharge. As said by Judge Pardee in The Esteban de Antunano, C.C., 31 F. 920, 925: "It is probable that the breaking up of the voyage by the seizure of the ship operated, ipso facto, a discharge of the crew (see Woolf v. The Oder [Fed.Cas. No. 18,027], 2 Pet.Adm. 261;), and if the crew thereafter remained aboard, they did it by the consent of the sheriff. In such case they would, no doubt, be entitled to their pay, and damages resulting from discharge, and the same would constitute an admiralty lien, not divested by the seizure and sale of the ship."
No distinction can properly be drawn, with respect to the right of lien, between claim for wages earned under a contract and claim for damages arising from discharge in violation of its terms. The lien *708 for wages covers the entire term of employment contracted for. 56 C.J. 1053; The Wanderer, C.C., 20 F. 655. And certainly the seaman's rights thereunder may not be defeated without fault on his part. He cannot, of course, be accorded lien for wages accruing subsequent to seizure for the reason that lien may not be created on the vessel after it has passed out of the control of the owners; but this does not mean that he may not have a lien for the damages resulting from the breach of his contract occasioned by the seizure.[*] Woolf v. The Oder, 30 Fed.Cas. page 600, No. 18,027. This is to award against the vessel no more than the seaman is entitled to under his contract at the time the seizure is made. The statute awarding one month's wages as damages in case of wrongful discharge, which has no application to a case such as this, is intended merely to afford seamen a simple and summary method of establishing and enforcing damages. 56 C.J. 1028; The Steel Trader, 275 U.S. 388, 390, 48 S.Ct. 162, 72 L.Ed. 326. But there can be no question that, in cases where the statute does not apply, a maritime lien exists on the vessel for the amount necessary to compensate the seaman for the breach of his contract of employment. The Lakeport, D.C., 15 F.2d 575.
In a case such as that with which we are dealing, damages resulting from discharge are difficult to estimate, but one month's earnings based on prior experience, the basis adopted by the Judge below, is certainly not unreasonable.
I see no injustice whatever in giving these seamen priority for the damage resulting from their discharge over bills of repairmen, who, when they permitted the vessel to proceed about her business, must have known that contracts of the character here involved would be made with the crew. When breach of these contracts was caused by seizure of the vessel at the instance of the repairmen, it is but fair that claims for damage resulting from such breach be given priority over their claims.
I think, therefore, that the decree appealed from should be affirmed.
NOTES
[*] For cases relating to lien for damages for breach of contract of employment as distinguished from wages, see Dary v. The Caroline Miller, D.C., 36 F. 507; The Abbie M. Deering, D.C., 105 F. 400; The White Seal, 9 Cir., 194 F. 402; The Emma F. Angell, D.C., 217 F. 311; The City of New Orleans, C.C., 33 F. 683.
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856 F.2d 198
Liberty Mutual Ins.v.Cohran
NO. 86-8142
United States Court of Appeals,Eleventh Circuit.
AUG 12, 1988
1
Appeal From: N.D.Ga.
2
AFFIRMED.
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146 Mich. App. 423 (1985)
381 N.W.2d 737
CULLENDER
v.
BASF WYANDOTTE CORPORATION
Docket Nos. 69779, 70323.
Michigan Court of Appeals.
Decided October 11, 1985.
Lakin, Worsham & Victor, P.C. (by Larry A. Smith), for plaintiff.
Cummings, McClorey, Davis & Acho, P.C. (by Gerald C. Davis and Kenneth A. Slusser), for BASF Wyandotte Corporation.
Clark, Klein & Beaumont (by David M. Hayes, Charles D. Bavol, and Kathi A. Kuehnel), for Hoover Chemical & Ballbearing Corporation.
Kohl, Secrest, Wardle, Lynch, Clark & Hampton (by Marcia Jobe and Roger F. Wardle), for Dow Chemical Company.
Before: R.M. MAHER, P.J., and HOOD and R.B. MARTIN,[*] JJ.
PER CURIAM.
Plaintiff filed an amended complaint alleging that defendants were liable to plaintiff under theories of wrongful death and breach of warranty for the death of plaintiff's decedent, Everett N. Cullender. The circuit court granted accelerated judgment in favor of defendants on the first count, finding that the statute of limitations barred this claim. The court denied a similar motion on the second count, however, after concluding that this cause of action was not time-barred. Plaintiff appeals from the first order; defendants BASF and Hoover have cross-appealed from the court's second order.
*426 In the amended complaint and subsequent pleadings, plaintiff alleged the following facts as foundation for both claims against defendants. Plaintiff's decedent was exposed to the chemical acrylonitrile, AN, through his employment until June 27, 1978. The chemical was contained in plastic supplied by defendants BASF and Dow Chemical Company which was, in turn, incorporated into seat cushions fabricated by defendant Hoover. On August 22, 1977, Mr. Cullender was found to have a colonic tumor which was found, on June 26, 1978, to be cancerous. Sometime in 1980, Mr. Cullender discovered through his own research and investigation that AN was exuded by the materials used in his employment and, apparently, that inhalation or ingestion of AN causes cancer of the colon. Prior to this discovery, Mr. Cullender had had no knowledge that these conditions could cause or contribute to colonic cancer. At some point prior to June 24, 1981, Mr. Cullender developed cancer in both lungs which was allegedly found to be consistent with colonic origin. Plaintiff and Mr. Cullender subsequently filed suit against defendants on June 24, 1981. On April 16, 1982, Mr. Cullender died from the cancer allegedly caused by defendants' products.
Plaintiff's first count, entitled "Wrongful Death", was based on the underlying theory of defendants' negligence in their roles as manufacturers and suppliers of the products which caused Mr. Cullender's death. The trial court ruled that the period of limitation for this action began to run on the day Mr. Cullender discovered he had a tumor in his colon, August 22, 1977, and that it had already barred any action by Mr. Cullender prior to his death. The court then ruled that the wrongful death statute, MCL 600.2922; MSA 27A.2922, did not revive an already-lapsed cause of *427 action upon the death of the injured party. On appeal, plaintiff argues that the cause of action for wrongful death did not accrue until Mr. Cullender died. Plaintiff also argues that even if this is not true, the cause of action could not have accrued until Mr. Cullender learned that there might be a connection between the cancerous tumor and defendants' products. We find that plaintiff's first contention has been disposed of by the Supreme Court in Hawkins v Regional Medical Laboratories, PC, 415 Mich 420, 436; 329 NW2d 729 (1982), in which the majority "expressly [held] that in all actions brought under the wrongful death statute, the limitations period will be governed by the provision applicable to the liability theory of the underlying wrongful act". This holding is binding on this Court despite the fact that it is technically dictum. Detroit v Michigan Public Utilities Comm, 288 Mich 267, 299-300; 286 NW 368 (1939). However, we also find that plaintiff's underlying cause of action for products liability based on negligence did not accrue until Mr. Cullender either discovered or, through the exercise of reasonable diligence, should have discovered that he had a possible cause of action. In so holding, we follow this Court's opinion in Bonney v Upjohn Co, 129 Mich App 18, 24; 342 NW2d 551 (1982), lv den 419 Mich 868 (1984). In Bonney, this Court examined the development and application of the "discovery rule" in Michigan and found that the rule had been applied previously in a number of products liability actions. The Bonney Court also examined and rejected the defendant's claim that the Supreme Court's decision in Connelly v Paul Ruddy's Equipment Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972), should be interpreted so as to find that a claim accrues when the four "Connelly" elements are in place. Bonney, supra, 129 Mich *428 App 28. This analysis is contradicted by the majority opinion in Larson v Johns-Manville Sales Corp, 140 Mich App 254, 265-267; 365 NW2d 194 (1985). However, after examining both Bonney and Larson, we believe that Bonney represents the better approach and consequently adopt its reasoning. We, therefore, find that the trial court erred by granting defendants' motion for accelerated judgment on plaintiff's wrongful death claim.
In their cross-appeal, defendants BASF and Hoover argue that the trial court improperly denied their motion for accelerated judgment against plaintiff's second count, a products liability claim based on breach of warranty. Defendants contend that the three-year period of limitation for products liability actions, MCL 600.5805(9); MSA 27A.5805(9), began to run on August 22, 1977, when Mr. Cullender learned he had a colonic tumor, and that the statute of limitations therefore barred plaintiff's claim as of August 22, 1980. We disagree for the reasons stated in our discussion of the first issue. We further find that the "discovery rule" contained in MCL 600.5833; MSA 27A.5833 should be construed together with MCL 600.5805(9); MSA 27A.5805(9) to determine the accrual date of causes of action for products liability based on breach of implied warranty. The trial court's denial of defendants' motion for accelerated judgment on this issue is affirmed.
Reversed in part; affirmed in part. Remanded to the trial court for further proceedings not inconsistent with this opinion.
NOTES
[*] Retired circuit judge, sitting on the Court of Appeals by assignment.
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40 F.3d 1416
ALLEGHENY INTERNATIONAL, INC.v.ALLEGHENY LUDLUM STEEL CORPORATION, Allegheny LudlumCorporation (formerly known as Allegheny LudlumSteel Corporation), Appellant.
No. 94-3177.
United States Court of Appeals,Third Circuit.
Argued Sept. 21, 1994.Decided Nov. 4, 1994.
Dennis J. Lewis (argued), Laura A. Meaden, Cohen & Grigsby, Pittsburgh, PA, for appellee.
Jeffrey G. Brooks, Kevin P. Lucas (argued), Manion, McDonough & Lucas, Robert L. Byer, Kirkpatrick & Lockhart, Pittsburgh, PA, for appellant.
Before: GREENBERG and ROTH, Circuit Judges, and FULLAM, District Judge.*
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. FACTUAL AND PROCEDURAL HISTORY
A. Factual History
1
Allegheny Ludlum Corporation (Allegheny Ludlum), a company engaged in the business of designing, manufacturing and selling specialty steel products, appeals from an order for summary judgment entered against it in the district court. The appellee is Allegheny International, Inc. (Allegheny International), a Pennsylvania corporation formerly named Allegheny Ludlum Industries, Inc. Until mid-1979, Allegheny Ludlum was an operating division of Allegheny International but between mid-1979 and late 1980 was its wholly-owned subsidiary. At that time, Allegheny Ludlum was known as the Allegheny Ludlum Steel Corporation (Allegheny Ludlum Steel).
2
In late 1980, Allegheny International sold all of the outstanding common stock in Allegheny Ludlum Steel to the LSC Corporation, an entity formed by a group of Allegheny Ludlum Steel's senior managers. Following the sale, LSC Corporation was merged into Allegheny Ludlum Steel, which then became known as Allegheny Ludlum Corporation (Allegheny Ludlum). This action arises out of several agreements related to Allegheny International's sale of Allegheny Ludlum Steel.
3
To effectuate the sale of Allegheny Ludlum Steel, Allegheny International and LSC entered into a stock purchase agreement on November 26, 1980 (the 1980 stock purchase agreement).1 See app. at 26-84. Pursuant to the agreement, on December 26, 1980, Allegheny International sold all of Allegheny Ludlum Steel's common stock to LSC. At the same time, Allegheny International acquired all of Allegheny Ludlum Steel's $9.00 Participating Preferred Stock. This controversy centers on two provisions of this agreement: (1) paragraph 12(d) and (e) regarding the disposition of any post-closing tax benefits or detriments to Allegheny Ludlum for pre-closing tax periods; and (2) paragraph 5(e) regarding certain post-closing insurance to be maintained by Allegheny International on behalf of Allegheny Ludlum.
4
Paragraph 12(d) provides that LSC, now known as Allegheny Ludlum, would reimburse Allegheny International
5
to the extent of any tax benefit received by [LSC] in taxable periods subsequent to the Closing Time as a result of the adjustment in the taxable income or other tax attributes of [Allegheny Ludlum Steel] or [Oklahoma Tubular Products Company] or as a result of over payment of taxes for periods through and including the Closing Time. The reimbursement required by this section shall be made at the time any such tax benefit is determined by the filing of a tax return, amended tax return or otherwise.
6
See app. at 77.2 Paragraph 12(e) provides that Allegheny International will reimburse LSC for any tax detriment suffered by LSC after the sale "as a result of any adjustments in the taxable income or other tax attributes of [Allegheny Ludlum Steel] or [Oklahoma Tubular Products Company] for periods through and including the Closing Time." Id. at 77-78. Paragraph 5(e) provides that Allegheny International
7
will keep the insurance set forth in Exhibit H in full force and effect [until the closing time] and thereafter for a reasonable time at [LSC's] request provided that [LSC] shall pay its allocable portion of the premiums and any claims thereunder shall be subject to any deductible of [Allegheny International] (and if a deductible applies to such loss as well as to some other loss sustained by [Allegheny International], to an allocable portion of such deductible).
8
See app. at 50. Allegheny International had maintained property and casualty insurance on behalf of Allegheny Ludlum Steel at least since 1976. Starting in 1976, these policies were written by Liberty Mutual Insurance Company, which charged Allegheny International for the cost of claims paid, an administrative cost adjustment, and a tax adjustment.
9
Following its acquisition by LSC, Allegheny Ludlum acquired certain insurance coverage in its own name which became effective July 1, 1981. In a letter agreement dated August 10, 1981 (the 1981 insurance agreement), Allegheny International and Allegheny Ludlum recognized that Allegheny Ludlum had "established its own separate property and casualty insurance program," but agreed that Allegheny International would continue to provide Allegheny Ludlum with certain specified policies and management services until December 31, 1981. Id. at 86. The 1981 insurance agreement also provided that Allegheny Ludlum would be
10
solely responsible for any insurance costs generated by or on behalf of [Allegheny Ludlum] under all previous programs established by [Allegheny International] for [Allegheny Ludlum]. Such costs would include but not be limited to audits, retrospective adjustments requiring additional premium payment, deductible payments or absorptions, renewals at the direction of [Allegheny Ludlum], etc.
11
Id.
12
In a letter dated April 13, 1983, Allegheny International informed Allegheny Ludlum that it had a net operating loss during its 1982 tax year, and that as a result, it had filed "carryback claims" for 1979 and 1980, years in which it had deducted the 1982 loss from its taxable income. Id. at 750. Originally, Allegheny International had offset a certain portion of its taxable income in 1979 and 1980 with investment tax credits generated by Allegheny Ludlum Steel's acquisition of equipment. However, because Allegheny International's subsequent net operating losses eliminated its taxable income for the tax years 1979 and 1980, it no longer needed the investment tax credits. It thus informed Allegheny Ludlum that the investment tax credits in those years should be used by Allegheny Ludlum to reduce its taxable income in 1981. Id. The investment tax credits were not available directly to Allegheny International, because they had been generated exclusively by Allegheny Ludlum Steel (Allegheny Ludlum's predecessor) when it was a wholly-owned subsidiary of Allegheny International. Id. at 750 (letter from Allegheny International to Allegheny Ludlum); id. at 1312 (Allegheny Ludlum's amended income tax return for 1981 tax year).
13
Thus, in its April 1983 letter to Allegheny Ludlum, Allegheny International requested that Allegheny Ludlum use the newly available investment tax credits (previously used by Allegheny International for tax years 1979 and 1980) to file a claim for a refund for the 1981 tax year. Id. at 750. Allegheny International also requested that pursuant to paragraph 12(d) of the 1980 stock purchase agreement, Allegheny Ludlum reimburse it for the value of the investment tax credits and any interest received. Id.3
14
Allegheny Ludlum promptly filed these claims. Id. at 1311. Moreover, in a letter dated April 22, 1983, Allegheny Ludlum responded to Allegheny International's April 13th letter, and stated that "[Allegheny Ludlum] will pay any reimbursement due to Allegheny International, Inc. (AI) resulting from the carryover of [the] 1979 and 1980 investment and foreign tax credits to 1981 as soon as possible after [Allegheny Ludlum] receives its refund check from the Internal Revenue Service." Id. at 752.
15
It was not until March 1989, three years after the execution of the 1986 agreement we discuss below, that the Internal Revenue Service (IRS) finally approved Allegheny International's reduction of its taxable income in 1979 and 1980 by the use of later net operating losses. Accordingly, only then did the IRS notify Allegheny Ludlum that its refund claim would be allowed. Id. at 1035. In July 1989, the IRS sent Allegheny Ludlum a check in the amount of $5,490,363.86, reflecting the amount of the tax refund ($2,233,059.75) plus interest at the statutory rate under the Internal Revenue Code to the date of the payment of the refund. Id. at 1636 (pretrial stipulations), id. at 801 (check).4 The IRS sent Allegheny Ludlum a second check in December 1989 for $307,301.52, which included the balance of the refund, $246,257.25, plus additional interest. Id. at 1636 (pretrial stipulations), id. at 802 (check). Thus, Allegheny Ludlum received a total refund with interest of $5,797,665.38.5
16
Before Allegheny Ludlum obtained the refund, Allegheny International had filed a voluntary petition under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Western District of Pennsylvania on February 20, 1988. On May 27, 1988, Allegheny Ludlum filed a claim against Allegheny International for reimbursement of certain tax costs pursuant to paragraph 12(e) of the 1980 stock purchase agreement. Allegheny Ludlum and Allegheny International settled this claim with a stipulation dated February 27, 1989, which was approved by the bankruptcy court. The stipulation fixed the value of Allegheny Ludlum's claim against Allegheny International and provided that it was subject to a setoff of any amounts owed by Allegheny Ludlum to Allegheny International pursuant to the 1980 stock purchase agreement. See id. at 1674-76.
17
On August 9, 1989, Allegheny Ludlum informed Allegheny International that, based on its construction of a February 18, 1986 settlement agreement resolving numerous disputes between the parties, including a dispute over insurance matters, it intended to retain the refund the IRS sent it in July 1989. Id. at 804. In particular, in 1985 Allegheny International had filed suit against Allegheny Ludlum in a Pennsylvania state court, the Court of Common Pleas of Allegheny County, to recover insurance costs that it claimed Allegheny Ludlum owed it. In the February 18, 1986 agreement, Allegheny International stated that it would "withdraw and cause to be dismissed with prejudice as to all parties all legal proceedings" it initiated against Allegheny Ludlum, including this insurance matter. See 1986 agreement, at 2 (Allegheny Ludlum br. Tab F). The 1986 agreement provided in return that Allegheny Ludlum would "purchase and redeem from [Allegheny International] all of the 650,000 shares of issued and outstanding shares of the $9.00 participating Preferred Stock ... of [Allegheny Ludlum] owned by [Allegheny International] for an aggregate consideration of 37 million dollars." Id. at 1. This redemption agreement had the advantage of effectuating a clean break between the corporations including the termination of Allegheny International's representation on the Allegheny Ludlum board of directors.
18
Finally, the 1986 agreement stated that Allegheny International would release Allegheny Ludlum from certain claims. Pursuant to the agreement, on February 28, 1986, Allegheny International delivered a release to Allegheny Ludlum. The first clause of this document contains broad language seemingly releasing Ludlum from any and all claims arising before February 19, 1986. The second clause, however, qualifies the first by excepting certain obligations under the November 26, 1980 agreement.
19
The language of this release is virtually identical to the language which the 1986 agreement prescribed for the release. See app. at 109-10. While the release refers to the agreement having been dated February 19, 1986, rather than February 18, 1986, that one-day difference is not significant, as it simply reflects the fact that Allegheny International's acceptance of the agreement was dated February 19, 1986. The resolution of this action turns in large part on the construction of this release.
B. Procedural History
20
Allegheny International initiated this action for breach of contract and unjust enrichment against Allegheny Ludlum on November 28, 1989. However, pursuant to reorganization proceedings in the bankruptcy court, Sunbeam-Oster Company, Inc. has acquired Allegheny International's assets and thus it is prosecuting this action for Allegheny International, which nevertheless remains the named plaintiff. Notwithstanding Sunbeam-Oster's asset acquisition, it appears that Allegheny International's corporate existence has not been terminated, as the Pennsylvania Department of State certified on July 12, 1993, that it is an existing Pennsylvania corporation.
21
Relying on the 1980 stock purchase agreement, Allegheny International seeks to recover the value of the refund received by Allegheny Ludlum and certain insurance costs incurred by Allegheny International after March 1, 1986. Allegheny International began the case as an adversary proceeding in the bankruptcy reorganization of In re: Allegheny Int'l, Inc., et al., Case No. 88-00448 (Bankr.W.D.Pa.). After Allegheny International filed its complaint, Allegheny Ludlum filed an answer, demanded a jury trial, made a motion for judgment on the pleadings based on the 1986 settlement agreement, and made a motion to transfer Allegheny International's action to the district court. See Allegheny Int'l, Inc. v. Allegheny Ludlum Steel Corp., 920 F.2d 1127, 1130 (3d Cir.1990). The bankruptcy court denied Allegheny Ludlum's motion to transfer the case to district court. Id. at 1128-30. The district court then dismissed Allegheny Ludlum's appeal from that decision. Id. at 1131. The district court also denied Allegheny Ludlum's motion for withdrawal of reference of the adversary action. Id. On further appeal, we dismissed for lack of jurisdiction Allegheny Ludlum's appeals from: (1) the district court's dismissal of Allegheny Ludlum's appeal of the bankruptcy court's refusal to transfer the case; and (2) the district court's denial of Allegheny Ludlum's motion for withdrawal of reference of the adversary proceeding. Id. at 1129.
22
One year later, in November 1991, before the bankruptcy court ruled on Allegheny's motion for judgment on the pleadings, the district court withdrew the reference to the bankruptcy court, and referred the case to a magistrate judge for pretrial proceedings. In its motion for judgment on the pleadings, Allegheny Ludlum asserted that the 1986 settlement agreement and the resulting release executed by Allegheny International barred Allegheny International's claims against Allegheny Ludlum for the tax refund and for insurance costs. See app. at 1379-83 (motion for judgment on the pleadings). In addition, Allegheny Ludlum maintained that Allegheny International's claim for insurance costs was "barred by reason of principles of res judicata/collateral estoppel " because, pursuant to the 1986 agreement between the parties, the state court entered an order dismissing with prejudice Allegheny International's 1985 insurance costs claim. Id. at 1383-84. Allegheny Ludlum argued that the claim for insurance costs was precluded, because in the 1985 action which the state court dismissed with prejudice, Allegheny International had sought a declaratory judgment holding Allegheny Ludlum liable for future insurance claims.
23
On April 28, 1992, the magistrate judge recommended that the district court deny Allegheny Ludlum's motion for judgment on the pleadings and allow the case to proceed to discovery. See report (Allegheny Ludlum br. Tab C). Though Allegheny Ludlum filed objections to the report, on May 13, 1992, the district court issued a memorandum order denying Allegheny Ludlum's motion and adopting the magistrate's report as its opinion. See May 13, 1992 district court order (Allegheny Ludlum br. Tab D). The magistrate judge's report concludes that Allegheny Ludlum was not entitled to judgment on the pleadings based on the release because: (1) the release does not cover "claim[s] based on Allegheny Ludlum's failure to perform in the future under any earlier contract"; (2) "[i]n applying this language [in the release], the court or a trier of fact, must determine when plaintiff's claims accrued"; and (3) this question could not be resolved "solely on the basis of the pleadings." See report, at 7 (Allegheny Ludlum br. Tab C). The report also concluded that the dismissal with prejudice of Allegheny International's 1985 state court suit for insurance costs did not entitle Allegheny Ludlum to judgment on the pleadings with regard to Allegheny International's insurance costs claim. The magistrate judge relied on Allegheny International's contention that it was seeking reimbursement only for insurance costs it incurred on Allegheny Ludlum's behalf "in and after 1989" which "thus were not part of that state law action." Id. at 10.6 According to the magistrate judge's report, this allegation raised a question of material fact which precluded the court from granting Allegheny Ludlum's motion for judgment on the pleadings. Id.
24
Allegheny Ludlum then expanded its defense to Allegheny International's complaint, as it filed a motion for summary judgment with supporting affidavits on June 14, 1993, alleging that it was entitled to summary judgment based on the 1986 agreement, the resulting release executed by Allegheny International, and the state court's entry of an order dismissing with prejudice Allegheny International's 1985 insurance costs claim. See app. at 131-43. On June 28, 1993, Allegheny Ludlum filed a second, separate "Motion for Summary Judgment Challenging Sunbeam-Oster Company, Inc.'s Right to Prosecute This Action," asserting that Sunbeam-Oster Company, Inc., which alleged that it was Allegheny International's successor in interest, had not established that it was the legal owner of the claims asserted against Allegheny Ludlum. Id. at 427-30. Also on June 28, 1993, Allegheny International filed a motion for summary judgment with supporting affidavits and other documents. Id. at 238-40.
25
On April 7, 1994, the district court issued a judgment order and memorandum opinion denying both of Allegheny Ludlum's motions for summary judgment, granting Allegheny International's motion for summary judgment, and awarding Allegheny International the damages it requested plus prejudgment interest and declaratory relief with respect to future tax benefits received by Allegheny Ludlum and insurance costs Allegheny Ludlum incurred on its behalf. See Allegheny Int'l, Inc. v. Allegheny Ludlum Steel Corp., No. 91-1959, slip op. (W.D.Pa. April 7, 1994) [hereinafter Allegheny Int'l, Inc., slip op.].7 The district court based its decision on the law of the case because it viewed its earlier decision denying Allegheny Ludlum's motion for judgment on the pleadings as already resolving the meaning of the release language and the res judicata effect of Allegheny International's 1985 state court suit for insurance costs. Accordingly, the district court would not revisit these issues absent "extraordinary circumstances." See Allegheny Int'l, Inc., slip op. at 16.
26
In its earlier decision, the district court had concluded as a matter of law that the language of the release was unambiguous and that it excluded claims based on Allegheny Ludlum's "failure to perform ... after February 1986, under any earlier contract." Id. at 14. The district court adhered to its earlier construction of the release "as the law of the case" because: (1) it already had interpreted it as a matter of law; and (2) Allegheny Ludlum did not allege that the 1986 agreement and the release were ambiguous, "but rather that [the magistrate judge], and this Court, misunderstood the clear and unambiguous import of these instruments." Id. at 20.
27
The district court concluded that although it had not expressly decided the res judicata effect of the dismissal of the 1985 state court suit, it had done so "by necessary implication." Id. at 15. The district court reasoned that "[t]he materiality of the disputed factual issue ... precluding the granting of defendant's motion for judgment on the pleadings [was] necessarily grounded [on the] legal conclusion that res judicata will not bar an insurance claim based on insurance payments not forming part of the dismissed state court action." Id. at 15 (citations omitted). The district court adhered to this earlier decision because it concluded that the decision was not "clearly erroneous." Id. at 24.
28
Thus, the district court concluded that based on its earlier decision, Allegheny International's claims were not barred. Then, applying the legal conclusions it had reached in its earlier decision, the district court held that because Allegheny International's tax claim accrued after February 1986 and its insurance costs were incurred after March 1, 1986, Allegheny International was entitled to recover the tax benefits and insurance costs it claimed under the 1980 stock purchase agreement and the 1981 insurance agreement, respectively. Id. at 28-29.
29
Accordingly, the district court entered judgment in favor of Allegheny International in the amount of $7,476,499.97 with respect to its tax refund claim and $508,073.70 with respect to its insurance cost claim. See April 7, 1994 district court order (Allegheny Ludlum Br. Tab A). The former amount was the sum of five figures: (1) $5,490,363.86 (the IRS check dated 7/20/89); (2) $1,317,687.20 (interest on that amount from 8/1/89 to 7/31/93); (3) $307,301.52 (the IRS check dated 12/11/89 minus $362.93 for an unrelated amount paid to Allegheny Ludlum by the IRS); (4) $66,022.39 (interest on this sum from 1/1/90 to 7/31/93); and (5) $295,125 (interest from 8/1/93 to 4/7/94). The latter amount was the sum of $500,505 in insurance costs incurred by Allegheny International on behalf of Allegheny Ludlum and $7,568.70 in administrative fees and taxes incurred by Allegheny International on behalf of Allegheny Ludlum. Id. The district court also ordered that: (1) future tax benefits received by Allegheny Ludlum "which relate to tax periods prior to [its sale] are to be refunded to [Allegheny International] pursuant to the terms of the November 26, 1980 Stock Purchase Agreement"; and (2) "all future insurance costs incurred by [Allegheny International] which are attributable to [Allegheny Ludlum's] operations and which relate to incidents, claims or facts arising or occurring between 1976 and July 1, 1981, are to be paid by [Allegheny Ludlum] under the terms of the August 10, 1981 Insurance Agreement." Id.
30
The district court denied Allegheny Ludlum's motion for summary judgment challenging Sunbeam-Oster Company, Inc.'s right to prosecute the case because the court concluded that "by bringing [the motion] as late in the litigation as it [did,] [Allegheny Ludlum] waived any such defense." Allegheny Int'l, Inc., slip op. at 31 (citing 6A Charles A. Wright, et al., Federal Practice and Procedure Sec. 1554, at 406-07 (1990)). Finally, the district court denied Allegheny Ludlum's motion for the imposition of sanctions on Allegheny International due to its alleged failure to allow meaningful discovery, noting "[i]n particular" that Allegheny Ludlum "failed to establish any prejudice in its defense against the insurance cost claim as a result of [Allegheny International's] alleged discovery shortcomings." Id. at 34-35. Allegheny Ludlum then appealed. The district court had jurisdiction pursuant to 28 U.S.C. Secs. 1334(a) and 157(d), and we have jurisdiction under 28 U.S.C. Sec. 1291.
II. DISCUSSION
A. The Release
31
Allegheny International claims that the 1980 stock purchase agreement entitled it to reimbursement for the tax refund received by Allegheny Ludlum in 1989, and that both the 1980 stock purchase agreement and the 1981 insurance agreement entitled it to reimbursement for the insurance costs it has incurred on Allegheny Ludlum's behalf since March 1, 1986. Allegheny Ludlum bases one of its defenses to these claims on the release executed by Allegheny International in February 1986 pursuant to the 1986 stock redemption agreement. According to Allegheny Ludlum, the release "includes all claims for Allegheny Ludlum's breach of any contractual obligation that was to be performed after February 19, 1986." See Allegheny Ludlum br. at 24. Allegheny Ludlum argues that it was not obligated to reimburse Allegheny International for the tax refund until the IRS made the refund in 1989 and that it was not obligated to reimburse Allegheny International for insurance costs incurred after March 1, 1986, as that date is after February 19, 1986. Id. at 24-25. Thus, it is Allegheny Ludlum's position that the release bars both Allegheny International's tax refund claim and its insurance costs claim.
32
We exercise plenary review over the district court's grant of summary judgment. See Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 554, 126 L.Ed.2d 455 (1993). Therefore, we must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that [Allegheny International] is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
33
'The moving party has the initial burden of identifying the evidence that demonstrates the absence of a genuine issue of material fact, [but] the respondent (the "non-movant") must establish the existence of each element on which it bears the burden of proof.'
34
FDIC v. Bathgate, 27 F.3d 850, 860 (3d Cir.1994) (quoting J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir.1990), cert. denied, 499 U.S. 921, 111 S.Ct. 1313, 113 L.Ed.2d 246 (1991)). "[I]n applying this standard, 'all inferences must be drawn against the movant, ... and in favor of the nonmovant.' " Id. at 860 (quoting Erie Telecommunications, Inc. v. City of Erie, 853 F.2d 1084, 1093 (3d Cir.1988)). However, " 'where the movant has produced evidence in support of its motion for summary judgment, the nonmovant cannot rest on the allegations of pleadings and must do more than create some metaphysical doubt.' " Id. (quoting Petruzzi's IGA, 998 F.2d at 1230).
35
The 1980 stock purchase agreement states that it "shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania." See app. at 83. Although the 1981 insurance agreement, the 1986 agreement, and the release do not identify the governing law, the parties have briefed the case under Pennsylvania law, which we thus apply. See Langer v. Monarch Life Ins. Co., 879 F.2d 75, 80 (3d Cir.1989).8
36
"Under Pennsylvania law, ambiguous writings are interpreted by the fact finder and unambiguous writings are interpreted by the court as a question of law." Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001, 1011 n. 10 (3d Cir.1980) (applying Pennsylvania law) (citing Brokers Title Co. v. St. Paul Fire and Marine Ins. Co., 610 F.2d 1174 (3d Cir.1979)). Thus, the first question "[c]ourts are left with [is] the difficult issue of determining as a matter of law which category written contract terms fall into--clear or ambiguous." Id. at 1011 (citing United Refining Co. v. Jenkins, 410 Pa. 126, 189 A.2d 574, 580 (1963); O'Farrell v. Steel City Piping Co., 266 Pa.Super. 219, 403 A.2d 1319 (1979)). If the court determines that a contract is clear, or unambiguous, then it construes the contract as a matter of law. Id. at 1011 n. 10. See also Kroblin Refrigerated Xpress, Inc. v. Pitterich, 805 F.2d 96, 101 (3d Cir.1986) ("It is well settled that unambiguous writings are construed as a matter of law.") (applying Pennsylvania law) (citing Ram Construction Co. v. American States Ins. Co., 749 F.2d 1049, 1052 (3d Cir.1984); Mellon, 619 F.2d at 1011 n. 10). Therefore, because the district court determined that the release was unambiguous, the court construed it as a matter of law. See Allegheny Int'l, Inc., slip op. at 13-14, n. 9, & 20. See also USX Corp. v. Prime Leasing Inc., 988 F.2d 433, 436-37 (3d Cir.1993). We exercise plenary review over these legal determinations.
37
"A contract is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense." Hutchison v. Sunbeam Coal Corp., 513 Pa. 192, 519 A.2d 385, 390 (1986) (citations omitted). See also Hullett v. Towers, Perrin, Forster & Crosby, Inc., 38 F.3d 107, 111 (3d Cir.1994); Langer, 879 F.2d at 80 (quoting Hutchison's definition of ambiguity). The Supreme Court of Pennsylvania has identified two types of ambiguity: (1) patent ambiguity, and (2) latent ambiguity, and has defined them as follows:
38
'[a] patent ambiguity is that which appears on the face of the instrument, and arises from the defective, obscure, or insensible language used.' Black's Law Dictionary 105 (rev. 4th ed. 1968). In contrast, a latent ambiguity arises from extraneous or collateral facts which make the meaning of a written agreement uncertain although the language thereof, on its face, appears clear and unambiguous. Easton v. Washington County Ins. Co., 391 Pa. 28, 137 A.2d 332 (1957).
39
Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659, 663 (1982).
40
Thus, we will begin by examining the language of the release to determine whether it contains a patent ambiguity. The release states the following:
41
[Allegheny International] hereby releases [Allegheny Ludlum] from any and all claims and causes of action (including the litigation referred to in Section 3(b) of the aforesaid letter agreement dated as of February 19, 1986) attributable to events or agreements occurring prior to February 19, 1986, whether or not arising out of the agreement dated November 26, 1980, pursuant to which [Allegheny Ludlum] was purchased from [Allegheny International,] provided; however, that the release shall not release any claim or cause of action based on the failure of [Allegheny Ludlum] [or] LSC Corporation ("LSC") ... to perform any obligation which [Allegheny Ludlum] [or] LSC ... has to [Allegheny International] under said agreement dated November 26, 1980 (other than obligations under Sections 12(a)(ii) and (iii) thereof) or under any other written obligation to [Allegheny International] which was to have been performed by [Allegheny Ludlum] [or] LSC ... at or prior to February 19, 1986.9
42
See release, at 1-2 (Allegheny Ludlum br. Tab G).
43
As the district court recognized, the release consists of two clauses. The first clause contains broad language releasing Allegheny Ludlum from:
44
any and all claims and causes of action [including Allegheny International's 1985 insurance cost suit] attributable to events or agreements occurring prior to February 19, 1986, whether or not arising out of the [1980 stock purchase agreement], pursuant to which [Allegheny Ludlum] was purchased from [Allegheny International].
45
See Allegheny Ludlum br. Tab G, at 1. This language in itself is unambiguous and, if it stood alone, we would conclude it covers both Allegheny International's tax refund claim and its insurance cost claim, as these claims arise from "agreements occurring prior to February 19, 1986."10
46
However, the second clause of the release contains "language which limits the apparent carte blanche release" contained in the first clause. See magistrate judge's report at 7 (Allegheny Ludlum's br. Tab C). The second clause provides that
47
the release shall not release any claim or cause of action based on the failure of [Allegheny Ludlum] to perform any obligation which [Allegheny Ludlum] has to [Allegheny International] under said agreement dated November 26, 1980 (other than obligations under Sections 12(a)(ii) and (iii) thereof) or under any other written obligation to [Allegheny International] which was to have been performed by [Allegheny Ludlum] at or prior to February 19, 1986.
48
See release, at 1-2 (Allegheny Ludlum br. Tab G). As we noted above, the district court held that this clause excluded from the release claims based on Allegheny Ludlum's "failure to perform ... after February 1986, under any earlier contract." See Allegheny Int'l, Inc., slip op. at 14 (emphasis added); magistrate judge's report, at 7 (Allegheny Ludlum br. Tab C) ("Specifically, the release excludes from coverage any claim based on Allegheny Ludlum's failure to perform in the future under any earlier contract.").
49
The district court's construction of the second clause in the release is inconsistent with the constructions advanced by both Allegheny International and Allegheny Ludlum. See Allegheny Ludlum reply br. at 8. Moreover, the district court's construction of the second clause is inconsistent with language in the clause, namely the phrase: "which was to have been performed by [Allegheny Ludlum] at or prior to February 19, 1986." See release, at 1-2 (Allegheny Ludlum br. Tab G). Allegheny International takes the position that this phrase modifies only the phrase which immediately precedes it, namely, "any other written obligation to [Allegheny International]," and not obligations under the 1980 stock purchase agreement. See Allegheny International br. at 23, 26. Thus, Allegheny International maintains that the second clause exempts from the release any claim based on Allegheny Ludlum's failure to perform in the future (i.e. subsequent to the February 1986 execution of the release) any obligation under the 1980 stock purchase agreement, but does not adopt the district court's view that the second clause exempts from the release any claim based on Allegheny Ludlum's "failure to perform ... after February 1986, under any earlier contract." See Allegheny Int'l, Inc., slip op. at 14 (emphasis added); magistrate judge's report, at 7 (Allegheny Ludlum br. Tab C).
50
In fact, Allegheny International indicates that the release bars claims based on Allegheny Ludlum's failure to perform after February 1986 under written obligations other than the 1980 stock purchase agreement, and that the second clause of the release only preserves claims arising out of such other written obligations if they accrued "prior to the date of the Release." See Allegheny International br. at 23 ("The second part of the proviso relates to [Allegheny Ludlum's] obligations under agreements other than the [1980 stock purchase agreement]"). Nonetheless, Allegheny International argues that the district court reached the correct result because: (1) the second clause exempts from the release any claim based on Allegheny Ludlum's failure to perform in the future (i.e., subsequent to the February 1986 execution of the release) any obligation under the 1980 stock purchase agreement, id. at 22-24; and (2) thus its claims based on Allegheny Ludlum's failure to reimburse it for the 1989 tax refund and the insurance costs Allegheny International incurred after March 1, 1986, are not barred by the release.
51
Unlike Allegheny International, Allegheny Ludlum takes the position that the phrase "which was to have been performed by [Allegheny Ludlum] at or prior to February 19, 1986," modifies more than the phrase which immediately precedes it, namely, "any other written obligation." See Allegheny Ludlum br. at 23-24. According to Allegheny Ludlum, it modifies the phrase "any obligation which [Allegheny Ludlum] has to [Allegheny International]" under the 1980 stock purchase agreement and its obligations under "any other written obligation to [Allegheny International]." Id. Thus, Allegheny Ludlum argues that the second clause preserves only those claims based on obligations which were to be performed on or before February 19, 1986. Based on this reading of the second clause of the release, the release bars Allegheny International's claims based on Allegheny Ludlum's failure to reimburse it for the 1989 tax refund and the insurance costs Allegheny International incurred after March 1, 1986, because these claims are not based on obligations that Allegheny Ludlum was to have performed prior to February 19, 1986.11
52
We acknowledge that the use of the conjunction "or" to separate the phrase "under [the 1980 stock purchase agreement]" from the phrase "under any other written obligation" could be construed to indicate that the phrase "which was to have been performed by [Allegheny Ludlum] at or prior to February 19, 1986" modifies only the phrase "any other written obligation." However, as the Pennsylvania Supreme Court stated in Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682, 685 (1963),
53
[w]ords and phrases on one side of the word 'or' may, and often do, modify and apply to words and phrases on the other side of the word 'or' in the same sentence.
54
Moreover, in Hutchison, the court held that a paragraph in a lease was ambiguous, because it was susceptible to both the appellant's construction of the paragraph, which "rest[ed] wholly on the use of the word 'or' to connect the series [of words]," and the appellee's construction, which was "not totally consistent with the use of the word 'or,' but seem[ed] more natural." Hutchison, 519 A.2d at 390. In our view, it seems unnatural to construe the second clause of the release to preserve claims based on future obligations under one contract between the parties and claims based on past obligations under other contracts between the parties. Thus, the mere use of the conjunction "or" does not render the clause unambiguous, and we conclude that the clause is susceptible to more than one meaning.
55
Allegheny International makes two other arguments to support its contention that the second clause of the release is unambiguous. First, it argues that the language of the second clause of the release is not reasonably susceptible to Allegheny Ludlum's construction because "[t]o read the phrase 'to have been performed ... at or prior to February 19, 1986' as referring to [the 1980 stock purchase agreement] turns the first clause of the proviso into mere surplusage" in violation of "standard rules of contract construction." See Allegheny International br. at 26. We do not believe that this argument is determinative because Allegheny International's construction of the second clause of the release also seems to turn a portion of the first clause into surplusage.
56
Allegheny International next argues that the second clause of the release is not reasonably susceptible to Allegheny Ludlum's construction because "[u]nder [Allegheny] Ludlum's construction, no contractual claims, including the insurance claims which were in litigation at the time the Release was executed, were released." Id. at 25. According to Allegheny International, such a construction of the second clause of the release "lead[s] to an absurdity" and thus should be rejected in favor of its own interpretation which " 'will effectuate the reasonable result intended.' " Id. at 25 (quoting Laudig v. Laudig, 425 Pa.Super. 228, 624 A.2d 651, 654).
57
Allegheny International argues that Allegheny Ludlum's construction "lead[s] to an absurdity," because it is inconsistent with the express provision in the 1986 agreement (also referenced in the first clause of the release), which provides for the dismissal with prejudice of all proceedings pending between the parties including the 1985 insurance costs suit. We agree that Allegheny Ludlum's construction is inconsistent with the dismissal with prejudice of pending insurance cost proceedings because such claims are based on obligations under the 1980 stock purchase agreement which were supposed to have been performed before February 19, 1986. Under Allegheny Ludlum's construction, the second clause of the release preserves claims based on obligations under the 1980 stock purchase agreement if these obligations were to be performed "at or prior to February 19, 1986."
58
This argument also is not determinative, however, because Allegheny International's construction of the second clause suffers from the same infirmity. The insurance costs proceedings pending when the 1986 agreement and release were executed also were based on the 1981 insurance agreement. Thus, Allegheny International's construction of the second clause of the release to preserve claims based on obligations under other agreements if the obligations were supposed to be performed "at or prior to February 19, 1986" also seems inconsistent with the dismissal with prejudice of pending insurance cost proceedings.
59
Overall, we conclude that the language of the second clause of the release is "reasonably susceptible" to both Allegheny International's construction and Allegheny Ludlum's construction. Hutchison v. Sunbeam Coal Corp., 519 A.2d at 390 (citations omitted).12 Thus, the release is patently ambiguous, and we must reverse the district court's grant of summary judgment in favor of Allegheny International on this basis.
60
Because of our holding that the contract is patently ambiguous, we do not reach the question of whether the contract is latently ambiguous as well.13 As a corollary, we also need not decide the scope of extraneous evidence admissible under Pennsylvania law to demonstrate that a contract is latently ambiguous. Of course, upon remand, the trier of fact must look to extraneous evidence to determine the contracting parties' intent. The scope of extraneous evidence admissible to interpret the meaning of an ambiguous contract (as distinguished from determining whether or not the contract is in fact ambiguous) is not before us on this appeal, and in the first instance should be decided by the district court.
61
Allegheny Ludlum urges that we should go further than simply reversing the summary judgment in favor of Allegheny International, as it argues that even if we conclude that the release is ambiguous, we should grant its motion for summary judgment because Allegheny International failed to meet its burden to respond to Allegheny Ludlum's motion under Fed.R.Civ.P. 56. See Allegheny Ludlum br. at 21-22. According to Allegheny Ludlum, it is entitled to summary judgment because Allegheny International failed to refute the evidence of the parties' intent contained in affidavits it submitted which, if accepted, would establish that the release bars this action. Id. However, we have no need to describe these affidavits in detail because there is extrinsic evidence which tends to support a conclusion that the release does not bar this action. See, e.g., app. at 1325-26 (May 5, 1988 letter from Allegheny Ludlum to Allegheny International recognizing that Allegheny International primarily was responsible for protesting the IRS's initial disallowance of the tax refund for which Allegheny International now seeks reimbursement), id. at 1675 (February 1989 stipulation recognizing that Allegheny Ludlum still may have obligations to Allegheny International under the 1980 stock purchase agreement). Thus, a dispute of fact remains. Accordingly, we will affirm the denial of Allegheny Ludlum's motion for summary judgment on Allegheny International's tax refund claim, and unless we determine that the dismissal with prejudice of Allegheny International's 1985 suit for insurance costs precludes the insurance costs claim, we also will affirm the denial of Allegheny Ludlum's motion for summary judgment on that claim.
B. Dismissal of the State Case
62
As we have indicated, in 1985 Allegheny International filed suit to recover insurance costs that it claimed Allegheny Ludlum owed it under the 1980 stock purchase agreement and the 1981 insurance agreement. However, in the 1986 agreement, Allegheny International stated that it would "withdraw and cause to be dismissed with prejudice as to all parties all legal proceedings" pending between Allegheny International and Allegheny Ludlum including its insurance claim. See 1986 agreement, at 2 (Allegheny Ludlum br. Tab F). Subsequently, on February 28, 1986, the state court issued an order approving a stipulation by the parties dismissing the 1985 suit with prejudice. See app. at 425. Allegheny International's 1985 suit sought reimbursement for insurance costs it already had incurred on behalf of Allegheny Ludlum as well as a declaratory judgment entitling it to reimbursement for insurance costs it would incur on Allegheny Ludlum's behalf in the future. Id. at 155-64. In its present insurance costs claim, Allegheny International seeks reimbursement for the insurance costs it has incurred on Allegheny Ludlum's behalf since March 1, 1986. Id. at 1647-50 (Allegheny International's Third Amended Pretrial Statement).
63
The magistrate judge concluded that the dismissal with prejudice of Allegheny International's 1985 state court suit for insurance costs did not entitle Allegheny Ludlum to judgment on the pleadings because Allegheny International sought reimbursement only for insurance payments it made on Allegheny Ludlum's behalf "in and after 1989" which "thus were not part of that state law action."14 See magistrate judge's report, at 10 (Allegheny Ludlum br. Tab C). According to the magistrate's report, this allegation raised a question of material fact which precluded granting a judgment on the pleadings. Id.
64
Allegheny Ludlum argues that the district court "erred in ruling, as a matter of law, that the dismissal with prejudice of the 1985 Insurance Lawsuit did not bar relitigation of [Allegheny International's] insurance cost claim." See Allegheny Ludlum br. at 37. Allegheny Ludlum concedes that Allegheny International's present insurance costs claim does not seek reimbursement for any costs it incurred on behalf of Allegheny Ludlum prior to the dismissal of its 1985 suit. Id. at 39. However, according to Allegheny Ludlum, the dismissal of the 1985 suit bars Allegheny International's present insurance costs suit because the 1985 suit sought not only reimbursement for insurance costs Allegheny International already had incurred, but also a judgment declaring that all future claims costs it would incur on Allegheny Ludlum's behalf were to be paid pursuant to the 1981 insurance agreement. Id.; see app. at 163. Our review of the district court's conclusion is plenary.
65
Federal courts must "give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged." Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 1889, 72 L.Ed.2d 262 (1982) (citing 28 U.S.C. Sec. 1738) (footnote omitted); see also Davis v. United States Steel Supply, 688 F.2d 166, 170 (3d Cir.1982), cert. denied, 460 U.S. 1014, 103 S.Ct. 1256, 75 L.Ed.2d 484 (1983). This principle is embodied in 28 U.S.C. Sec. 1738, which provides that state court judgments:
66
shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State.
67
Under Pennsylvania law, the doctrine of res judicata holds that " 'a final valid judgment upon the merits by a court of competent jurisdiction bars any future suit between the parties or their privies, on the same cause of action.' " Keystone Bldg. Corp. v. Lincoln Sav. and Loan Ass'n, 468 Pa. 85, 360 A.2d 191, 194 (1976) (citations omitted).
68
Application of the doctrine of res judicata requires the concurrence of four elements. They are: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; [and] (4) identity of the quality in the persons for or against whom the claim is made.
69
City of Pittsburgh v. Zoning Bd. of Adjustment, 522 Pa. 44, 559 A.2d 896, 901 (1989) (citations omitted); see also Davis v. United States Steel Supply, 688 F.2d at 170-71 (applying Pennsylvania law). Moreover, " '[i]t is well settled, as a general proposition, that a judgment or decree, though entered by consent or agreement of the parties, is res judicata to the same extent as if entered after contest.' " Keystone, 360 A.2d at 194 n. 6 (citation omitted). See also Gambocz v. Yelencsics, 468 F.2d 837, 840 (3d Cir.1972) ("[d]ismissal with prejudice constitutes an adjudication of the merits as fully and completely as if the order had been entered after trial") (citing Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 327, 75 S.Ct. 865, 868, 99 L.Ed. 1122 (1955)). Thus, the fact that the dismissal with prejudice of the 1985 suit was based upon a stipulation by the parties is irrelevant.
70
Nonetheless, we conclude that the dismissal with prejudice of the 1985 suit is not res judicata in Allegheny International's present suit for insurance costs. Although the suits involve the same parties, they do not involve the same causes of action. In its present insurance costs claim, Allegheny International is suing for reimbursement of expenses it had not even incurred at the time that its 1985 suit was dismissed with prejudice. The fact that Allegheny International's 1985 suit included a claim for declaratory judgment regarding its rights to the reimbursement of future insurance expenses it would incur on behalf of Allegheny Ludlum should not bar Allegheny International's present claim for expenses incurred subsequent to the dismissal of the 1985 suit.15
71
As the United States Supreme Court held in Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 328, 75 S.Ct. 865, 868, 99 L.Ed. 1122 (1955), while a "judgment precludes recovery on claims arising prior to its entry, it cannot be given the effect of extinguishing claims which did not even then exist and which could not possibly have been sued upon in the previous case."16 The plaintiffs in Lawlor had brought an antitrust action seeking, in part, injunctive relief, that was dismissed with prejudice in 1943 pursuant to a settlement agreement. Subsequently, they brought a second action alleging antitrust violations based on conduct subsequent to the 1943 judgment, and the court held that the earlier judgment did not bar the action. Moreover, the court noted that its conclusion was "unaffected by the circumstance that the 1942 complaint sought, in addition to treble damages, injunctive relief which, if granted, would have prevented the illegal acts now complained of." Id. at 328, 75 S.Ct. at 869.
72
We think that the Pennsylvania Supreme Court would follow the logic of Lawlor in the situation before us. In reaching this conclusion, we recognize that when declaratory relief is sought it may be possible to sue on a claim which could be regarded as not yet existing. Yet we think that it is reasonable to consider that when both damages for past conduct and declaratory relief governing future events are sought, the parties naturally would focus their attention on the existing monetary claims. Indeed, we believe that a court should be cautious in according res judicata effect to the dismissal of the declaratory judgment aspects of a combination damages and declaratory judgment action, lest a settlement leading to a dismissal with prejudice have unintended consequences. For example, a delinquent defendant with an ongoing relationship with a plaintiff, by making its account current, might obtain a dismissal of an action against it for the overdue payments and for declaratory relief that it will be liable for future payments. In such a situation it would be remarkable if the defendant could use the dismissal of the action as a defense in a later case if it failed to make the future payments as its obligation to make them matured.
73
Furthermore, in a technical sense it is questionable whether a voluntary dismissal with prejudice of a claim for declaratory relief should be regarded as extinguishing the anticipated substantive claim underlying the declaratory judgment action, for such a dismissal is in terms simply a disposition of a claim for declaratory relief. Accordingly, it seems unreasonable to regard the disposition as the equivalent of a disposition of the plaintiff's substantive claims for monetary relief as the claims mature. Indeed, at a time when the claim for declaratory relief is dismissed, the circumstances on which future liability later may be predicated will not even exist. Overall, we are convinced that whatever might be true in other contexts, for res judicata purposes a cause of action for declaratory relief with respect to a party's obligation to make payments in the future should not be regarded as a cause of action for the recovery of the payments as they become due. In these circumstances, we conclude that Allegheny International's present claim for insurance costs should not be regarded as stating the same cause of action asserted in the state litigation. Consequently, we apply Pennsylvania law to hold that the dismissal of Allegheny International's 1985 suit does not bar its present claim.17
C. Sunbeam-Oster's standing
74
In a second and separate motion for summary judgment, Allegheny Ludlum challenged Sunbeam-Oster Company's right to prosecute this action on behalf of Allegheny International because Sunbeam-Oster did not file a motion to amend the caption of the case or otherwise substitute itself for Allegheny International as plaintiff. See Allegheny Int'l, Inc., slip op. at 30. The district court denied Allegheny Ludlum's motion, holding that Allegheny Ludlum had waived any defense it might have had to Sunbeam-Oster's prosecution of this action by raising it "as late in the litigation as it has." Id. at 31 (citing 6A Charles A. Wright, et al., Federal Practice and Procedure Sec. 1554, at 406-07 (1990)). We agree. Any objection alleging that the plaintiff is not the real party in interest "should be done with reasonable promptness." See 6A Charles A. Wright, et al., Federal Practice and Procedure Sec. 1554, at 407 (1990). "Otherwise, the court may conclude that the point has been waived by the delay and exercise its discretion to deny motions on the ground of potential prejudice." Id. at 407-08. See also Gogolin & Stelter v. Karn's Auto Imports, Inc., 886 F.2d 100, 102-03 (5th Cir.1989) (holding that defendant waived real-party-in-interest defense by "untimely assertion," where defendant raised it for the first time in a motion for directed verdict), cert. denied, 494 U.S. 1031, 110 S.Ct. 1480, 108 L.Ed.2d 617 (1990).18
III. CONCLUSION
75
In view of the aforesaid, we will reverse the district court's order of summary judgment of April 7, 1994, in favor of Allegheny International, but we will affirm its denial of Allegheny Ludlum's motions for summary judgment. We will remand the matter to the district court for further proceedings consistent with this opinion. The parties will bear their own costs on this appeal.
*
Honorable John P. Fullam, Senior United States District Judge for the Eastern District of Pennsylvania, sitting by designation
1
As we have set forth above, Allegheny International formerly was named Allegheny Ludlum Industries, Inc. Thus, the seller in the stock sale agreement is Allegheny Ludlum Industries, Inc. The purchaser is ALSCO Corporation rather than LSC Corporation, but it appears that the stock was conveyed to LSC Corporation which we thus will treat as the purchaser
2
The parties do not discuss how Oklahoma Tubular Products Company is related to Allegheny International and Allegheny Ludlum in their briefs, and we thus conclude that the relationship is not germane to this case
3
The letter cites paragraph 12(e) but we believe that Allegheny International meant paragraph 12(d)
4
Allegheny International's brief states that the IRS sent Allegheny Ludlum checks in the amount of $5,787,665.38, reflecting the amount of the tax refund ($2,479,317) plus interest at the statutory rate under the Internal Revenue Code to the date of the payment of the refund. See br. at 8
5
Allegheny International's brief states that the total of $5,797,665.38 included $362.93 for an unrelated item. See br. at 12
6
The 1989 date is incorrect as Allegheny International is seeking reimbursement for costs since 1986
7
The district court also denied Allegheny Ludlum's motion for sanctions and Allegheny International's motion for leave to file an amended pretrial statement
8
It is difficult to understand how any other law could apply, as Allegheny International, Allegheny Ludlum, and the ALSCO Corporation, which was the purchaser named in the November 26, 1980 agreement, are Pennsylvania corporations and the transactions involved in this case all took place in Pennsylvania. See n. 1, supra
9
Sections 12(a)(ii) and (iii) relate to inspection of records and certain post-closing undertakings not germane to this litigation
10
It is undisputed that Allegheny International's claims are based on the 1980 stock purchase agreement and the 1981 insurance agreement. Allegheny International argues that the first clause of the release does not bar its claims because it contains "no clear and unequivocal expression of an intent" to release claims based on a failure to perform in the future obligations which arise out of agreements reached prior to February 19, 1986. See Allegheny International br. at 22. We disagree. As Allegheny Ludlum points out, the first clause of the release "clearly demonstrates the parties' intention that plaintiff released Allegheny Ludlum from 'any and all claims and causes of action,' regardless when they arose or when performance [was] due, so long as those claims 'were attributable to events or agreements occurring prior to February 19, 1986.' " See Allegheny Ludlum reply br. at 4. Our conclusion is consistent with the magistrate judge's report, which the district court adopted, which stated that if the first clause "were the full extent of the release [Allegheny Ludlum's] claims would be well-founded." See report, at 7 (Allegheny Ludlum br. Tab C)
11
As Allegheny Ludlum points out, "[i]t is undisputed that the time for Allegheny Ludlum's performance with respect to the tax refund claim was not until 1989 after it received the tax refund from the Internal Revenue Service," and that "the time for Allegheny Ludlum's performance of the insurance cost reimbursement in question did not arise until those costs were incurred at various times after March 1, 1986." See Allegheny Ludlum br. at 24-25 (citing app. at 1422, 284-85, 1492)
12
We reject Allegheny Ludlum's argument that its construction of the second clause of the release is "the only plausible reading," and that, therefore, the release is unambiguous. See Allegheny Ludlum br. at 19
13
In fact we cannot reach that point because an agreement is latently ambiguous only when extraneous or collateral facts make uncertain language which facially is clear and unambiguous. Steuart v. McChesney, 444 A.2d at 663. Thus, by definition, an agreement can be latently ambiguous only if it is patently clear
14
We are confident that the magistrate judge intended to indicate 1986
15
Allegheny Ludlum cites Exner v. Exner, 268 Pa.Super. 253, 407 A.2d 1342 (1979), and Mintz v. Carlton House Partners, Ltd., 407 Pa.Super. 464, 595 A.2d 1240 (1991) in support of its argument that the dismissal with prejudice bars Allegheny International's present claim for costs incurred subsequent to the dismissal of the earlier action. But these cases are distinguishable
The plaintiff in Exner first filed actions in assumpsit alleging breaches of a separation agreement and then filed an action in equity alleging breaches of the separation agreement and seeking specific performance of the separation agreement. The court in Exner entered judgment in the equitable action and ordered specific performance of the separation agreement. Subsequently, the plaintiff filed a motion for summary judgment in the consolidated assumpsit actions alleging breaches of the separation agreement. The Exner court held that the assumpsit actions were barred by the judgment in the equitable action based in part on the fact that "[t]he complaint in equity recited all prior defaults, including those alleged in the prior assumpsit actions ... [and thus,] the causes of action alleged in the consolidated assumpsit actions were included among the breaches of contract averred and decided in the equity action." Exner, 407 A.2d at 1344. Thus, this case is distinguishable as Allegheny International's previous complaint did not and could not allege the "defaults" alleged in the complaint before us.
In Mintz, the court held that the plaintiffs' claims alleging that the defendant breached their lease agreement already had been fully discharged by the bankruptcy court's entry of an order confirming the defendant's plan of reorganization. The court based its determination that the doctrine of res judicata barred plaintiffs' claims in part on the finding that although plaintiffs may have incurred damages subsequent to the confirmation of defendant's plan of reorganization, the alleged breach occurred prior to the confirmation of defendant's plan of reorganization. Mintz, 595 A.2d at 1244. Thus, Mintz is distinguishable because the breaches on which Allegheny International bases its present suit occurred after the entry of judgment in the 1985 suit.
16
See also Federated Dep't. Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103 (1981) ("[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.") (citations omitted) (emphasis added); Alexander & Alexander, Inc. v. Van Impe, 787 F.2d 163, 166 (3d Cir.1986) (res judicata "applies only to claims arising prior to the entry of judgment. It does not bar claims arising subsequent to the entry of judgment and which did not then exist or could not have been sued upon in the prior action.") (citation omitted)
17
Of course, when there is an actual adjudication of an issue in a declaratory judgment action regarding a debt not due, the adjudication may be preclusive under collateral estoppel principles as to that issue in a later action to recover the debt. Thus, our result in no way undermines the effectiveness of a declaratory judgment. But collateral estoppel does not apply here because the dismissal with prejudice of the 1985 suit did not actually "decide" or "adjudicate" any issues. See City of Pittsburgh, 559 A.2d at 901 ("[c]ollateral estoppel applies if (1) the issue decided in the prior case is identical to one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding and (5) the determination in the prior proceeding was essential to the judgment.") (citations omitted)
18
In light of our decision, we need not reach an argument advanced by Allegheny Ludlum that the district court erred in determining as a matter of law that Allegheny International was entitled to the interest the IRS paid on the refund as a tax benefit, and Allegheny Ludlum's further argument that the court should not have awarded Allegheny International prejudgment interest for certain litigation delay
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188 F.2d 917
NATIONAL LABOR RELATIONS BOARD,v.WILTSE.
No. 11128.
United States Court of Appeals, Sixth Circuit.
Decided March 23, 1951.As Amended on Rehearing June 1, 1951.
George Meader, Washington, D.C. (George Meader, Washington, D.C., John S. Dobson, Ann Arbor, Mich., on the brief), for respondent.
Before SIMONS, McALLISTER and MILLER, Circuit Judges.
McALLISTER, Circuit Judge.
1
The National Labor Relations Board filed its petition for enforcement of its order requiring respondent to reinstate workers alleged to have been discharged as a result of unfair labor practices in violation of the National Labor Relations Act, as amended; to cease and desist from discouraging membership in a union and from interfering with and coercing employees in the exercise of their right to engage in concerted activities; and to post appropriate notices. In answer, respondent submits that, under various provisions of the Act, the Board was without jurisdiction to hear and determine the controversy; that respondent's operations did not affect interstate commerce, and that there was not sufficient admissible evidence in the record to sustain the Board's findings that respondent was guilty of unfair labor practices.
2
The National Labor Relations Act, as amended, known also as the Labor-Management Relations Act of 1947, 61 Stat. 136, 29 U.S.C.A. § 151 et seq., provides that no investigation shall be made by the Board of any question affecting commerce concerning the representation of employees raised by a labor organization, and that no petition of such an organization shall be entertained or complaint issued pursuant to a charge by a labor organization, unless such organization and any national or international labor organization of which it is an affiliate shall have filed with the Secretary of Labor copies of its constitution and bylaws and certain other information as to its procedures and finances, and distributed its financial statement to its members, and shall have filed with the Board affidavits of its officers that they are not members of the Communist Party. Section 9(f), (g), and (h) of the Act, 29 U.S.C.A. § 159(e), (f) and (g).
3
There was no proof in the proceedings before the Board, or in this court, that that union, here in question, had complied with the requirements of the above mentioned provisions of the Act. Failure to comply was not pleaded as a defense by the answer.
4
On the principal issue in this controversy, respondent contends that Section 9(f), (g), and (h) of the Labor-Management Relations Act is jurisdictional; that compliance with the requirements of this section by the union must be shown before the Board has jurisdiction to proceed; and that since there was no showing that the union had complied with this section, the Board had no jurisdiction to issue its complaint or enter its order in this case.
5
In National Labor Relations Board v. Greensboro Coca Cola Bottling Co., 4 Cir., 180 F.2d 840, 844, similar contentions were considered and determined. In that case, in passing upon the argument that the Board was without jurisdiction to enter its order because the union had not complied with the above mentioned section of the statute, Judge Parker, speaking for the court, said: 'The company's contention that the Board was without jurisdiction to enter the order is based upon an allegation in the answer before the Board to the effect that the union upon whose petition the complaint of the Board was filed had not complied with the requirements of section 9(f), (g) and (h) of the Labor-Management Relations Act. These provisions of the statute require that labor organizations desiring to obtain the benefits of the act shall file certain operational and financial statements with the Secretary of Labor, distribute the financial statement to their members and have their officers submit affidavits that they are not members of the Communist Party. There is nothing whatever in the evidence, however, to show that the union has not complied with these statutory requirements; and, in the absence of proof to the contrary, we must assume that they have been complied with. * * * Where there is nothing to show, therefore, that the union has failed to comply with the statutory provisions, where general counsel has filed a complaint upon its petition, and where the Board has granted relief upon the complaint, we must assume that the law has been complied with. Omnia praesumuntur rite esse acta. United States v. Chemical Foundation, 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131; Smith v. St. Louis & S.W. Ry. Co., 181 U.S. 248, 258, 21 S.Ct. 603, 45 L.Ed. 847.'
6
In answer to the claim that compliance must first be shown before the Board has jurisdiction to file complaint, hear the controversy, and enter its order, the court observed: 'The company contends that compliance with the statutory provisions is jurisdictional and that compliance must be shown before the Board has jurisdiction to proceed. There is nothing in the language of the statute expressly requiring this; and if such view were to be taken, it would greatly hamper the administration of the act, since it would be incumbent upon the general counsel to show compliance, not only with the requirements as to filing affidavits but also with those requiring the giving of notice to members; and this he would have to do in every case, even though there were no question as to compliance. Surely nothing of the sort was contemplated in the passage of the statute; and it is well settled that the courts will not construe a statute in such way as to make it administratively unworkable if any other construction is possible. Haggar v. Helvering, 308 U.S. 389, 394, 60 S.Ct. 337, 84 L.Ed. 340; Gruver v. Com'r, 4 Cir., 142 F.2d 363, 366; Fides v. Com'r, 4 Cir. 137 F.2d 731. We think it clear that the requirement of the statute goes, not to the jurisdiction of the Board, but to the standing of the union to ask relief for it. As said by Mr. Justice Holmes in Fauntleroy v. Lum, 210 U.S. 230, 235, 28 S.Ct. 641, 642, 52 L.Ed. 1039: 'No doubt it sometimes may be difficult to decide whether certain words in a statute are directed to jurisdiction or to merits, but the distinction between the two is plain. One goes to the power, the other only to the duty, of the court. * * * Whether a given statute is intended simply to establish a rule of substantive law, and thus to define the duty of the court, or is meant to limit its power, is a question of construction and common sense."
7
In addition to the persuasiveness of the foregoing opinion, other sections of the statute, and the report of the Congressional Committee provided thereunder, are illuminating in arriving at a determination whether the failure to allege or prove compliance of the union with Section 9(f), (g) and (h) of the Act was a jurisdictional condition precedent.
8
Among the most important provisions of the Labor-Management Relations Act of 1947 was the creation of 'a joint congressional committee to be known as the Joint Committee on Labor-Management Relations * * * , and to be composed of seven Members of the Senate Committee on Labor and Public Welfare, to be appointed by the President pro tempore of the Senate, and seven Members of the House of Representatives Committee on Education and Labor, to be appointed by the Speaker of the House of Representatives.' It was further provided that the committee should elect a chairman and vice chairman from among its members, and, acting as a whole or by subcommittee, should conduct 'a thorough study and investigation of the entire field of labor-management relations, including but not limited to-
9
'(1) the means by which permanent friendly cooperation between employers and employees and stability of labor relations may be secured throughout the United States;
10
'(2) the means by which the individual employee may achieve a greater productivity and higher wages, including plans for guaranteed annual wages, incentive profit-sharing and bonus systems;
11
'(3) the internal organization and administration of labor unions, with special attention to the impact on individuals of collective agreements requiring membership in unions as a condition of employment;
12
'(4) the labor relations policies and practices of employers and associations of employers;
13
'(5) the desirability of welfare funds for the benefit of employees and their relation to the social-security system;
14
'(6) the methods and procedures for best carrying out the collective bargaining processes, with special attention to the effects of industry-wide or regional bargaining upon the national economy;
15
'(7) the administration and operation of existing Federal laws relating to labor relations; and
16
'(8) such other problems and subjects in the field of labor-management relations as the committee deems appropriate.'
17
The purpose of the Committee, in making a thorough study and investigation of the entire field of labor-management relations, was to submit a report and recommendations for legislation, and the Act provided:
18
'The committee shall report to the Senate and the House of Representatives not later than March 15, 1948, the results of its study and investigation, together with such recommendations as to necessary legislation and such other recommendations as it may deem advisable, and shall make its final report not later than January 2, 1949.' Sections 401, 402, 403 of the Labor-Management Relations Act of 1947.
19
The Joint Committee on Labor-Management Relations made its report to Congress in 1948 (Senate Report 986, Part 3, 80th Cong., 2d Sess., page 45) and embodied its conclusions with respect to the non-Communist affidavit requirement, as follows:
20
'The committee believes that the non-Communist affidavit provision has already demonstrated its effectiveness as an aid to unions and their members in their desire to drive the Communists from positions of power in labor organizations. Since that point having been established beyond argument, consideration should be given by Congress to perfecting the approach to the problem. Communists do not give up easily and have and will take quick advantage of any loopholes which appear in the law. Control of the labor movement has been the Communists' most effective means of gaining ultimate control of the government itself in many European countries.
21
'The committee wishes to emphasize as strongly as possible that in any consideration of amendments to this section, great care must be given to prevent litigation of the question in Board hearings. If the parties to Board hearings are permitted to question the veracity of the affidavit, or the fact as to it having been filed, records will be hopelessly overburdened with such proof. Board hearings must be confined to evidence going into merits of the case at hand if the Board is to carry out is real function of deciding unfair labor practice cases and determining bargaining representatives. The Board recognized this principle in Lion Oil Co. (15- R- 2264) when it upheld the ruling of the hearing officer in his denial of the employer's motion to dismiss the petition since the record did not show the petitioning union had complied with the requirements of section 9(f) and (h). The Board said that compliance is clearly for the Board to determine and its official records indicated that the union had complied.'
22
In the Lion Oil Co. case mentioned and approved in the Committee's report (76 N.L.R.B., pages 565, 566), the Board had stated, in its decision:
23
'The Employer further contends that the petition should be dismissed because the Congress of Industrial Organizations, with which the Petitioner is admittedly affiliated, has not complied with the filing requirements of Sections 9(f) and (h) of the Act. We have affirmed the hearing officer's denial of the motion to dismiss for the reasons detailed in Matter of Northern Virginia Broadcasters, Inc., 75 N.L.R.B. 11.
24
'The Employer also argues that, as the record does not affirmatively show that the Petitioner has complied with the requirements of Section 9(f) and (h), the petition should be dismissed. In view of the language of those sections, however, precluding the Board from investigating any question concerning the representation of employees where the requirements have not been met, the matter of compliance is clearly one for the Board to determine in any manner suited to the circumstances. As the official records of the Board indicate that the Petitioner has complied with the requirements of those sections, the hearing officer's denial of the Employer's motion to dismiss was proper.'1
25
In National Labor Relations Board v. Postex Cotton Mills, Inc., 5 Cir. 181 F.2d 919, it was held that where officers of a parent union had not filed required non-Communist affidavits provided for in the National Labor Relations Act, the Board was not authorized to issue a complaint upon a charge filed by an affiliated union, notwithstanding that the officers of the affiliated union had filed the required affidavits. A contrary construction was reached in West Texas Utilities Co. v. National Labor Relations Board, D.C. Cir., 184 F.2d 233; and in National Labor Relations Board v. Highland Park Mfg. Co., 4 Cir., 184 F.2d 98, the court considered the two foregoing cases and agreed with the construction of the court in the Postex case. While the Highland Park case is cited by respondent as authority in the instant case, it is not here applicable for the same question is not before this court. The issue here is whether compliance with Section 9(f), (g), and (h) of the Act is jurisdictional and must be shown before the Board has jurisdiction to proceed. Judge Parker, who wrote the opinion of the court in the Greensboro Coca Cola Bottling Co. case, supra, holding compliance not jurisdictional, as well as in the Highland Park case, was obviously of the view that the two cases were concerned with entirely different issues, with which conclusion we are in accord.
26
Respondent submits that the above mentioned portion of the report of the Joint Congressional Committee on Labor-Management Relations is not persuasive of the interpretation to be given to the Act, since this was not the committee that proposed its adoption, but, rather, one created by the Act itself; that the opinions rendered by such committee are ex post facto and have no weight or significance in interpreting the provisions of the statute; and that its views, as set forth in its report, are not persuasive as to Congressional intent in the matter.
27
For the past fifteen years since its passage by Congress, the National Labor Relations Act has aroused perhaps more controversy than any statute enacted during that period. Continuous debates in Congress finally led to the enactment of the Labor-Management Relations Act, known as the Taft-Hartley Act, in 1947. Congress at that time was deeply concerned with the manner in which the amended Act would operate and, accordingly, as mentioned above, the Act provided for the Joint Congressional Committee to carry on a continuing thorough study and investigation of labor-management relations, including the administration of the federal laws relating to labor relations, with the object of reporting back to Congress the results of its investigation, together with recommendations for further legislation on the subject. Among the members of such Joint Congressional Committee, it is to be noted, were Senator Taft and Representative Hartley, authors and sponsors of the Labor-Management Relations Act which bore their name. The report of the Committee was made in the first part of 1948; and since that time, there have been two national Congressional elections in which one of the principal issues was the Taft-Hartley Act. Debates have continued with regard to this legislation both in the Senate and the House of Representatives; but no amendments have been made by Congress with respect to the so-called compliance sections here in question. Under such circumstances, we consider this to be persuasive evidence of the adoption by Congress of the construction given the filing requirements here in question by the Board, in the Lion Oil Co. case, supra, which was set forth in the report of the Joint Congressional Committee. In fact, most reasonable inferences can be drawn that the construction of the statute contended for by the respondent in the Lion Oil case, like that contended for by respondent in the instant case, failed of Congressional approval. See Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796; State of Missouri v. Ross, 299 U.S. 72, 57 S.Ct. 60, 81 L.Ed. 46; United States et al. v. American Trucking Ass'ns, Inc., et al., 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345. Moreover, it is to be said that respondent's contention that compliance with the filing requirements must be shown before the Board has jurisdiction to proceed, is in conflict with the explanation given by Senator Taft to the Senate when he declared that under Section 9(f) of the Act, the financial reports required to be filed by the unions were not to be available to the public.2
28
From the foregoing, it is our conclusion that it was not necessary to allege and prove compliance on the part of the union with the requirements of Section 9(f), (g), and (h) of the Act as a condition precedent to the exercise of jurisdiction over the controversy by the Board. It may be remarked that, although the fact does not appear in the record, it is submitted by the Board that the American Federation of Labor, the parent union in this case, was in full compliance with Section 9(f), (g), and (h) of the Act prior to the issuance of the complaint against the respondent. But that is unnecessary to consideration in this case, in view of our holding that the Board was not required to allege and prove compliance, and that compliance with such provisions was not jurisdictional.
29
Having disposed of the foregoing jurisdictional question, we agree that it is unnecessary to pass upon petitioner's further contention that failure to comply with the above mentioned filing requirements does not present a litigable issue in that they are administrative provisions not subject to review.
30
On the merits, respondent contends that there was insufficient admissible evidence to sustain the order of the Board that respondent was guilty of unfair labor practices.
31
The evidence discloses that in December, 1947, a strike for a wage increase occurred at respondent's premises. The superintendent sent the strikers home without attempting to negotiate, and afterwards called them separately by phone and asked them if they would return to work at the old wage rate, stating that the others were returning to work on that basis. However, employees Reed and Lolmaugh were not recalled to work. The superintendent and the foreman had informed respondent that they were of the opinion that 'these two girls had led in this rather insurrection and had been the ringleaders of the movement to shut down and demand more pay.' When they called the office to inquire why they had not been notified to return to work, they were told that they had been replaced and were not needed. Their positions had been filled by new employees. The Board held that they were discriminated against in not being recalled to work because of respondent's belief that they were the leaders of the strike; that this was an unfair labor practice; and that the employees were entitled to reinstatement. Respondent contends that the Board's finding of discrimination in the treatment of the two employees in question is not sustained by the evidence, and that it is not an unfair labor practice for an employer to neglect to rehire strikers when their positions have been filled by replacements; that these employees were not singled out for discrimination, but that their places were filled by other employees obtained from the lists of the Unemployment Compensation Commission, who, he thought, would be better workers. It is an unfair labor practice for an employer, in reinstating employees who have been on strike, to exclude certain of them because of their union activities. National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381. There was evidence from which inferences could be drawn that respondent practiced such discrimination against the employees in question in the belief that they were the ringleaders of the strike. While this evidence was not persuasive in the mind of the trial examiner who recommended that the complaint be dismissed as to the employees in question, we can not say there was no evidence to justify a contrary conclusion by the Board. Inferences to be drawn from the evidence are for the Board, and not the court, to make, and, if supported by evidence, are not to be set aside even if a contrary inference would have been drawn by the court. National Labor Relations Board v. Ford et al., 6 Cir., 170 F.2d 735.
32
With reference to the discharge of other employees of respondent, it appears that in January, 1948, a so-called union 'organizational' meeting was held among the employees, during which some of them became union members. A few days later, four of the members of the union were discharged by respondent. On the day of these discharges, according to the testimony, respondent inquired of one employee as to whether he belonged to the union and whether he had attended the organizational meeting; and respondent declared, during the conversation, that he would close down the department if its employees joined the union. After one of the union members, Maluske, had been discharged, respondent, according to the testimony, asked another employee if he knew who else was helping organize the union in addition to Maluske, whom he had just fired. Later, he told such employee that he had found out who the other leader of union activities was, referring to employee Kalmbach- that 'fellow back by the folders'- stating that it would take about two minutes to get rid of him. Later, when Kalmbach was being interrogated by a former superintendent of the plant, who was still in respondent's employ as a salesman, as to his union connections, respondent came into the room and abruptly discharged him, saying that if he felt like that, he could 'get out the door. If you like the Union so much let the Union get you a job.' Eva Berry, another employee, was questioned twice on the day of her discharge about her union activities, first by the forelady, and then by respondent. At first, employee Berry denied she had joined the union, but when respondent asked her to swear that she had not joined, she refused to do so. When employee Berry indicated that she would join the union if it would benefit her, respondent stated that he was the one who gave her a job and not the union, and shortly after this interchange, she was discharged. On the same day, employee Hanselmann, who had joined the union four days before, was discharged although he had received three pay raises and had been praised for his work during the year of his employment. Respondent claimed that Maluske was discharged because he was inexperienced, and not a good production man; that Eva Berry was discharged because of excessive smoking, and because she affirmed her intention of participating in another shutdown; that Kalmbach was a grumbling, discontented employee; and that Hanselmann's employment was terminated because of lack of work. The probative value of testimony by an employer regarding reasons for discharge of an employee is for the Board, and if such testimony is substantially contradicted by other evidence and accompanying circumstances, the Board is not required to accept it. We can not say there was not, here, such evidence and accompanying circumstances.
33
As to the claim that the trial examiner should have stricken and disregarded the testimony of Eva Berry concerning her conversation with respondent on the ground that she herself denied that it contained any threat of reprisal or promise of benefit, it is clear that what was said bore upon the question whether she was later discharged on account of her favorable attitude toward the union. It was for the Board to determine whether her discharge resulted from what she said to the respondent about the union. Even where an employee testified that he knew of no reason for his discharge other than that he had violated a rule of respondent's company, the Board was not precluded from showing that another reason existed for his discharge. National Labor Relations Board v. Ford et al., supra. An examination of the record reveals that there was substantial evidence to support the finding of discriminatory discharges of these employees in violation of the Act.
34
Respondent further contends that his operations did not affect commerce. Respondent is an individual carrying on a commercial letterpress printing business in Ann Arbor, Michigan, and employing approximately 100 persons in his office, composing room, press room, bindery, and shipping department. During the calendar year of 1947, his production consisted of periodicals, school annuals, trade magazines, and journals, booklets, and folders for the University of Michigan, as well as advertising material such as catalogues and automotive parts books. Sales of these materials amounted to $850,000, of which $190,000 was composed of periodicals mailed by respondent to points throughout the United States. During the same year, respondent purchased raw materials and repair parts of the approximate value of $22,000 from points outside the State of Michigan. The business was heretofore operated as a partnership, during which time its operations were considered by this court in National Labor Relations Board v. Prettyman et al., 117 F.2d 786, in which it was held that the same business enterprise, on the basis of its operation in 1937, sufficiently affected interstate commerce to bring it within the National Labor Relations Act. Since that time, the magnitude of such operations has been considerably expanded. In view of the foregoing, there can be no doubt that respondent's operations affect interstate commerce within the meaning of the Act.
35
Respondent further argues that the Board was without power to hear and determine the controversy because of an asserted failure to comply with Section 10(b) of the Act, which provides that 'no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made'. It is claimed that there was lack of jurisdiction in this case because of defective service, due to the fact that a copy of the charge was served upon respondent by the regional director of the Board by registered mail, instead of being personally served by the union.
36
Section 11(4) of the Act provides: 'Complaints, orders, and other process and papers of the Board, its member, agent, or agency, may be served * * * by registered mail * * * . The verified return by the individual so serving the same setting forth the manner of such service shall be proof of the same, and the return post office receipt * * * therefor when registered and mailed * * * as aforesaid shall be proof of service of the same. * * * '
37
In National Labor Relations Board v. O'Keefe & Merritt Mfg. Co. et al., 9 Cir., 178 F.2d 445, the court held that service of a notice by registered letter addressed to each individual respondent, in accordance with Section 11(4) of the Act and the rules of the Board, was a form of notice reasonably calculated to give respondents knowledge of the proceedings and the opportunity to be heard, and, as such, satisfied the requirements of due process. Respondent differentiates this case, however, contending that a 'charge' does not come within the classification of 'other process and papers of the Board,' as set forth in Section 11(4) of the Act, because of the fact that it is an instrument initiated by the charging party, the union, and that since Section 10(b) requires notice of such a charge 'upon the person against whom such charge is made,' personal service is necessary. In according a practical construction to the foregoing provision of the statute, we are of the view that, since all complaints, orders, and other processing papers of the Board may be served by registered mail, the charge that sets in motion the machinery of the inquiry by which the Board is enabled to enter intelligently upon the exercise of its powers, is also to be served in the same way, and Section 10(b) is not to be construed as requiring personal service. As to service by the regional director instead of the union, while Section 10(b) does not specify by whom the charge is to be served, it can not be maintained that the Board, as well as the charging party, does not have an interest in the matter. It is of no concern to the respondent whether service is made by the Board or the union. Although, according to the Board's rules and regulations, the charging party is responsible for the timely and proper service of a copy of the charge, it is provided that the regional director will, on the request of the charging party, or may in any case, cause a copy of the charge to be served upon the person against whom the charge is made; but timely service thereof is the exclusive responsibility of the charging party.3 In authorizing the regional director to serve a copy of the charge, the Board did not act in excess of its rule-making power to make such regulations as might be necessary to carry out the provisions of the statute. Section 6 of the Act. Title 29 U.S.C.A. 156.
38
The Board's order requires respondent to cease and desist from discouraging membership in the union, or any other labor organization, by discriminating in regard to the hire and tenure of employment of his employees; from interrogating his employees as to their union activities, views, sympathies, or membership; from threatening to close his plant should his employees form a union; and from in any other manner interfering with, restraining, or coercing his employees in the exercise of their rights to engage in concerted activities. Affirmatively, the Board's order requires respondent to offer reinstatement, with back pay, to employees Reed, Lolmaugh, Berry, Kalmbach, Hanselmann, and Maluske, and to post specified notices. Under the evidence and findings of the Board, the foregoing order was proper.
39
With respect to the claims that the record was distorted because of errors committed by the trial examiner in rulings on the admissibility of evidence, the exclusion of evidence, the receipt of inadmissible evidence, and because of reliance on matters outside the record, and arbitrary action in discrediting the testimony of a witness for respondent, we find, upon a review of the record, that such contentions are insubstantial and without merit.
40
In accordance with the foregoing, a decree will be entered enforcing the order of the Board.
1
The decision in Northern Virginia Broadcasters, Inc., referred to in the Board's decision in the Lion Oil Co. case, was summarized in the report of the Joint Committee on Labor-Management Relations, as follows: 'The issue was presented to the National Labor Relations Board in the case of Northern Virginia Broadcasters, Inc. (75 N.L.R.B. No. 2). Local 1215 of the International Brotherhood of Electrical Workers, AFL, had filed a petition for a collective bargaining election. Both local 1215 and the International Brotherhood of Electrical Workers had filed the required affidavits and had complied with the registration requirement. Pursuant, however, to the ruling of the general counsel, the regional director dismissed the petition because the officers of the parent AFL had not filed non-Communist affidavits and a registration statement. The union appealed to the Board to reverse the action of the regional director in dismissing the petition. The Board, acting on the appeal, in a divided opinion set aside the dismissal and reinstated the union's petition.' (Senate Report No. 986, 80th Cong., 2d Sess., Part 1, page 11.)
2
In explaining the bill, Senator Taft said: 'The bill provides that unions must file financial reports on forms certified by the Secretary of Labor and furnish the reports to all of their members, and file a copy with the Secretary of Labor. Such reports are not open to the public, any more than corporation reports are open to the public; but they are open to inspection by the members, and they are also open to proper Government officials. There is no special provision, but they are not specifically provided to be open to the public.' 93 Cong.Rec. 3839
3
Section 203.14 of Rules and Regulations of the N.L.R.B., and Section 202.4 of the Statements of Procedure of the Board, Series 5, Subpart G, effective August 22, 1947
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Court of Appeals
First District of Texas
BILL OF COSTS
No. 01-14-00291-CV
Methodist Health Centers d/b/a Houston Methodist Sugar Land Hospital
v.
Patty Crawford and Harry Smith, Individually and as heirs of Jeanette Smith
NO. 13-DCV-208281 IN THE 434TH DISTRICT COURT OF FORT BEND COUNTY
TYPE OF FEE CHARGES PAID/DUE STATUS PAID BY
RPT RECORD $186.00 04/24/2014 PAID ANT
MT FEE $10.00 04/17/2014 E-PAID ANT
STATEWIDE EFILING $20.00 04/09/2014 E-PAID ANT
FILING $175.00 04/09/2014 E-PAID ANT
The costs incurred on appeal to the First Court of Appeals Houston, Texas are
$391.00.
Court costs in this case have been taxed in this Court’s judgment
I, Christopher A. Prine, Clerk of the Court of Appeals for the First District of Texas, do hereby
certify that this is a true statement of the costs of appeal in this case.
IN TESTIMONY WHEREOF, witness my
hand and the seal of the Court of Appeals for the
First District of Texas, this January 23, 2015.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1764
___________
United States of America, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Trinidad Villa-Gonzalez and *
Jose Manuel Villa-Gonzalez, *
*
Appellees. *
___________
Submitted: May 11, 2010
Filed: November 1, 2010 (corrected 11/02/10)
___________
Before WOLLMAN, BYE, and MELLOY, Circuit Judges.
___________
BYE, Circuit Judge.
Brothers Trinidad Villa-Gonzalez (Trinidad) and Jose Villa-Gonzalez (Jose)
were indicted in 2008 on various criminal charges after police discovered
methamphetamine, guns, money, and scales during a search of the brothers’ residence.
The district court1 granted the brothers’ motion to suppress the physical evidence
discovered during the search of their residence, as well as certain incriminating
statements they made to police. The government appeals, arguing the district court
1
The Honorable Joseph F. Bataillon, Chief Judge, United States District Court
for the District of Nebraska.
erred by concluding (1) Trinidad’s initial encounter with the police was not
consensual and statements he made during the encounter were involuntary, and (2) the
evidence discovered during the search of the brothers’ residence was inadmissible
fruit of the poisonous tree. We affirm.
I
Keith Bignell, a drug investigator with the Nebraska State Patrol, received
information in February 2008 that Trinidad and Jose Villa-Gonzalez were selling
methamphetamine out of their trailer residence on 61st Avenue in Columbus,
Nebraska. While driving by the trailer on the morning of May 29, 2008, Bignell saw
a vehicle at the trailer and a person standing near the trailer. Bignell decided to
attempt a “knock and talk” consensual contact at the residence. Bignell was driving
an unmarked sedan at the time and was accompanied by Investigator Molczyk of the
Columbus police. Bignell was armed with a pistol in a holster visible on his belt; he
was wearing blue jeans, a t-shirt, and a vest displaying a badge emblem and marked
with the word “police.” Molczyk was wearing plainclothes with no visible weapon.
Before he approached the trailer, Bignell called for assistance and was joined
by a uniformed officer, Trooper Dain Hicks, who was driving a marked patrol car.
Trooper Hicks was visibly armed. As Bignell and the other officers approached the
trailer, Bignell saw an individual later identified as Esau Valenzuela-Machado
standing near the trailer. Bignell asked Valenzuela-Machado for identification, and
Valenzuela-Machado provided a Mexican voter registration card. Bignell asked
Valenzuela-Machado to accompany Trooper Hicks to the front of the trailer. Hicks
then placed Valenzuela-Machado in the rear seat of his police cruiser and stood in the
driveway near the front of the trailer.
Bignell and Molczyk approached the main door of the trailer and knocked. Jose
answered the door. Bignell, standing on a deck outside the main door of the trailer,
-2-
identified himself as a police officer, and he asked Jose for “some identification.”
Bignell also asked if he could come inside the trailer. Jose did not answer, but
Trinidad came to the door and told Bignell he could not come inside. Bignell asked
Trinidad for identification, and Trinidad responded by closing the door partially and
leaving the doorway area. Trinidad then returned with a Nebraska identification card.
Bignell and Trinidad then engaged in a brief conversation on the deck during which
Trinidad told Bignell that he lived in the trailer along with his brother Jose. Jose
returned to the door with his identification – a State of Washington driver’s license
– handed the ID to Trinidad, and returned once again inside the trailer. Trinindad
handed over his and Jose’s ID cards to Bignell. Trinidad asked Bignell what he
wanted, and Bignell explained that he believed Trinidad and Jose were drug dealers.
Trinidad denied the accusation. In response to a few more questions from Bignell,
Trinidad stated that he was born in Mexico and that he did not have any additional
forms of identification. Bignell asked Trinidad a second time for permission to search
the trailer, and Trinidad again declined to consent to a search.
Bignell returned to his car and used his cell phone to call Mike Becker, an
Immigration and Customs Enforcement (ICE) officer with the Department of
Homeland Security in Omaha, and asked him to run immigration checks based on the
information provided by the three men at the trailer. Becker ran the requested checks
and called Bignell back in “five minutes or less.” At that time, Becker told Bignell
he wanted to speak with each of the individuals on the cell phone. While Bignell was
talking with Becker, Trinidad stood just “outside the trailer on the deck with
Investigator Molczyk.” Pursuant to Becker’s request to speak with each of the three
men, Bignell “approached Trinidad on the — on the deck and handed him the cell
phone.” The nature of the interaction between Bignell and Trinidad is disputed by the
parties. The district court found that Bignell “told” Trinidad to talk on the phone with
Becker. The government asserts that this finding is clearly erroneous, and suggests,
instead, that Bignell merely handed the phone to Trinidad. If Bignell said anything
to Trinidad when he handed Trinidad the phone, the record is silent on the point.
-3-
In a “short conversation,” Trinidad told Becker he was from Mexico, that he
had entered the United States on a visitor’s visa in June 2007, and that his documents
were in the trailer. After Becker finished speaking to Trinidad, Bignell then entered
the trailer, without consent, and handed the phone to Jose. Jose admitted to his status
as an illegal immigrant. Finally, Bignell handed the phone to Valenzuela-Machado,
who also admitted to his status as an illegal alien. At the conclusion of Becker’s cell
phone conversation with the men, Becker told Bignell to administratively arrest all
three men as suspected illegal aliens, on the basis of Jose and Valenzuela-Machado’s
admission of their illegal status, and Becker’s failure to find any record in his
immigration database corroborating Trinidad’s statement that he entered the United
States on a visitor’s visa in June 2007.
At this point, Bignell handcuffed Trinidad and placed him under arrest.2 The
three detained men were taken to the Platte County jail where Becker and another ICE
investigator promptly arrived from Omaha to interview them regarding their
immigration status. With respect to Trinidad, the government’s computer records did
not support his claim that he had lawfully entered the country, but Becker wanted to
interview him because “sometimes there can be errors in databases.” Becker testified
the general purpose of his interviews with suspected illegal aliens is to seek
information for administrative removal from the United States. Becker testified he
conducts an “identity interview” addressing the person’s
name, date of birth, family’s name, do they have kids, are they married,
are they sick, where do they live, where were they born, and then we
have their entry data, because under the Immigration and Nationality
Act, how an alien enters the United States determines [] which course of
action that you actually take in the administrative process . . . for
removal.
2
The record is silent on when, if ever, Bignell returned Trinidad and Jose’s
identification cards.
-4-
Becker does not typically give Miranda warnings at the outset of these interviews, and
he did not do so when he interviewed Trinidad at the jail. When Becker interviewed
Trinidad, he inquired about the names of Trinidad’s parents and his exact address in
Mexico. When Becker told Trinidad the government did not have a record of him
coming into the United States with a passport and visa as he had claimed, Trinidad
incriminated himself, admitting he used fraudulent documents to gain entry. Because
Trinidad appeared to Becker to have admitted to committing a felony by fraudulently
using another person’s documents to enter the United States, Becker immediately
stopped questioning Trinidad.
On the assumption Trinidad likely kept the fraudulently-used documents at his
residence, Becker decided to seek a warrant to search for such documents in Trinidad
and Jose’s trailer. The government applied for and obtained a search warrant, with the
probable cause showing for the warrant based principally on Trinidad’s disclosure that
he had fraudulently used another person’s documents to illegally enter the United
States, along with his earlier statement that he stored the documents in his trailer. The
warrant affidavit also relied on the fact that both Jose and Valenzuela admitted to their
status as illegal aliens.
The search warrant for the trailer was executed at around 6 p.m. on the same
day, May 29, 2008, by Becker and other ICE agents, along with Bignell and Molczyk.
In the residence, officers discovered about $32,000 in currency, two handguns, two
scales, and a quantity of methamphetamine.
On June 18, 2008, a federal grand jury in the District of Nebraska returned a
five-count indictment against Trinidad and Jose. Count One charged both Trinidad
and Jose with conspiring to distribute and possess with intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count Two
charged both Trinidad and Jose with possessing methamphetamine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1). Count Three charged both Trinidad
-5-
and Jose with unlawful possession of firearms by an alien illegally in the United
States, in violation of 18 U.S.C. § 922(g)(5)(A). Count Four charged Trinidad with
unlawfully reentering the United States after having been deported following
conviction for an aggravated felony, in violation of 8 U.S.C. § 1326. Count Five was
a forfeiture count under 21 U.S.C. § 853.
In September 2008, Trinidad and Jose filed motions to suppress all their
statements to law enforcement officers as well as the evidence seized in the search of
their residence. A magistrate judge conducted an evidentiary hearing on Trinidad and
Jose’s suppression motion and entered a Report and Recommendation recommending
that the motions be granted in part and denied in part. The magistrate concluded the
initial “knock and talk” interaction between Bignell, Trinidad and Jose was a
consensual encounter and found no reason to suppress Trinidad’s cell phone
conversation with Becker. The magistrate judge found that Bignell had “approached
Trinidad on the deck and handed him a cell phone, at which time Trinidad spoke with
Officer Becker,” and he noted that “[t]here is no evidence that Trinidad objected to
talking to Becker on the telephone or that he was forced to do so.” The magistrate
judge further concluded Trinidad was not “in custody” when he talked to Becker on
the cell phone. The magistrate judge also found that because Becker was unable to
find any record that Trinidad had entered the United States with a passport and visa
in 2007 as he had claimed, Becker had sufficient cause at the conclusion of the cell
phone conversation to direct Bignell to make an administrative arrest and detain
Trinidad. Turning to Becker’s questioning of Trinidad at the jail, the magistrate judge
concluded Becker should have provided Miranda warnings to Trinidad. In the
magistrate judge’s view, Becker’s questioning of Trinidad as to his manner of entry
– in which he confronted Trinidad with the fact that the government’s records did not
support his claim that he used a passport and visa to legally enter in 2007 – was
“reasonably likely to elicit an incriminating response,” and Miranda warnings were
therefore required. The magistrate judge contrasted Becker’s interrogation at the jail
from the “mere[] . . . administrative inquiry [conducted] when Becker interviewed
-6-
Trinidad over the telephone.” Because of Becker’s failure to provide Miranda
warnings prior to the jail interview, the magistrate judge recommended that Trinidad’s
statements in that interview be suppressed. Relying on United States v. Patane, 542
U.S. 630, 636 (2004), the magistrate judge rejected Trinidad and Jose’s argument that
the “fruit of the poisonous tree”doctrine required suppression of the physical evidence
later seized at the trailer. The magistrate judge explained, under Patane, there is no
constitutional basis for suppressing physical evidence obtained as a result of voluntary
statements, even if there was a Miranda violation in the jailhouse questioning.
Assessing the totality of the circumstances, the magistrate judge concluded Trinidad’s
statements at the jail were voluntary. The magistrate judge noted in particular that
“[t]he record in this case is devoid of any indication that either Trinidad or Jose were
particularly susceptible to pressure that may have been asserted by law enforcement,”
and that “[t]he evidence does not suggest that their wills were overborne at any time
during these events.” Finally, the magistrate judge concluded that the facts included
in the application for the search warrant, including Trinidad’s statements, were
sufficient to establish probable cause for the search of the trailer for evidence of
immigration law violations.
The district court subsequently entered a suppression order granting Trinidad
and Jose’s motion to suppress in its entirety. The district court agreed with the
magistrate judge that the incriminating statements Trinidad made at the Platte County
jail required Miranda warnings and must be suppressed. In addition, however, the
district court found that although Bignell’s initial contact with Trinidad was
consensual, the encounter became an unlawful detention at the time of Trinidad’s cell
phone conversation with Becker. In addition, the district court concluded Trinidad
was “in custody” on the deck of his residence and that Miranda warnings were
therefore required before his cell phone conversation with Becker. The district court
further found the government had failed to prove the voluntariness of Trinidad’s
statements in light of the coercive atmosphere and the fact that “the defendants were
told, not asked, to answer the questions propounded by the ICE officer on the phone.”
-7-
Because the information supporting probable cause for the search warrant was derived
from the arrest which resulted from what were, according to the district court,
Trinidad’s involuntary statements to Becker on the cell phone during a period of
unlawful detention, the court ultimately concluded that the fruit of the poisonous tree
doctrine required suppression of the physical evidence seized in the search.
The government now appeals the district court’s adverse suppression order. We
have jurisdiction over the government’s appeal pursuant to 18 U.S.C. § 3731.
II
The first issue we must confront is whether Trinidad was seized within the
meaning of the Fourth Amendment by the time he made an incriminating statement
over the phone to Becker.
We review a district court’s factual determinations in ruling on a motion to
suppress for clear error and its conclusions of law de novo. United States v. Griffith,
533 F.3d 979, 982 (8th Cir. 2008).
Although the Fourth Amendment prevents police from seizing a person without
a reasonable suspicion of criminal activity, the Amendment is not triggered by a
consensual encounter between an officer and a private citizen. Id. at 983. “[M]ere
police questioning does not constitute a seizure.” Florida v. Bostic, 501 U.S. 429, 434
(1991). “Even when law enforcement officers have no basis for suspecting a
particular individual, they may pose questions, ask for identification, and request
consent to search . . . provided they do not induce cooperation by coercive means. If
a reasonable person would feel free to terminate the encounter, then he or she has not
been seized.” United States v. Angulo-Guerrero, 328 F.3d 449, 451 (8th Cir. 2003).
“A consensual encounter becomes a seizure implicating the Fourth Amendment when,
considering the totality of the circumstances, the questioning is ‘so intimidating,
-8-
threatening, or coercive that a reasonable person would not have believed himself free
to leave.’” United States v. Flores-Sandoval, 474 F.3d 1142, 1145 (8th Cir. 2007),
quoting United States v. Hathcock, 103 F.3d 715, 718 (8th Cir. 1997).
Two relevant Supreme Court cases bear examination. In United States v.
Drayton, the Supreme Court held no seizure occurred when officers boarded a bus
during a scheduled stop and began questioning passengers about their travel plans and
baggage in a routine drug and weapons interdiction effort. 536 U.S. at 196. And
while the police officers in Drayton were not in uniform or visibly armed, the Court
stated that “those factors should have little weight in the analysis.” Id. at 204. The
Court noted that
[o]fficers are often required to wear uniforms and in many circumstances
this is cause for assurance, not discomfort. Much the same can be said
for wearing sidearms. That most law enforcement officers are armed is
a fact well known to the public. The presence of a holstered firearm thus
is unlikely to contribute to the coerciveness of the encounter absent
active brandishing of the weapon.
Id. at 204-05. The Court ruled the encounter was not a seizure within the meaning of
the Fourth Amendment. Id. at 207.
In another case, the Supreme Court held INS questioning of factory workers in
their workplace about their citizenship was not a seizure even though uniformed INS
agents were posted at the workplace exits and the workers were not told they need not
respond. I.N.S. v. Delgado, 466 U.S. 210, 216 (1984). The Court stated, “[w]hile
most citizens will respond to a police request, the fact that people do so, and do so
without being told they are free not to respond, hardly eliminates the consensual
nature of the response.” Id. The Court noted there was nothing in the record showing
the agents stationed at the factory doors prevented anyone from leaving, and the
-9-
obvious purpose of the agent’s presence at the doors was to ensure all the workers
were questioned. Id. at 218.
This court has also affirmed on numerous occasions that the knock-and-talk
procedure used here is a consensual encounter under normal circumstances. See, e.g.,
United States v. Spotted Elk, 548 F.3d 641, 655 (8th Cir. 2008) (“As commonly
understood, a knock and talk is a consensual encounter and therefore does not
contravene the Fourth Amendment, even absent reasonable suspicion.”) (citations
omitted); United States v. Vera, 457 F.3d 831, 835 (8th Cir. 2006) (indicating that a
request to see identification is not a seizure, as long as the police do not convey a
message that compliance with their request is required); United States v. Coney, 456
F.3d 850, 858 (8th Cir. 2006) (finding encounter with police officer consensual where
officer “did not use physical force, make a show of authority, or use demanding
language,” and two defendants exercised their right to deny request for consent to
search).
In making the ultimate determination of whether a reasonable person would feel
free to terminate the encounter with police, we have in past cases examined the
presence or absence of seven nonexclusive factors. In Griffith, we stated that
[s]ome circumstances which inform our decisionmaking include: officers
positioning themselves in a way to limit the person’s freedom of
movement, United States v. White, 890 F.2d 1412, 1416 (8th Cir. 1989),
the presence of several officers, the display of weapons by officers,
physical touching, the use of language or intonation indicating
compliance is necessary, the officer’s retention of the person’s property,
or an officer’s indication the person is the focus of a particular
investigation, Ninety One Thousand Nine Hundred Sixty Dollars, 897
F.2d at 1461.
Griffith, 533 F.3d at 983.
-10-
Turning to the facts of this case, we conclude the district court did not err when
it concluded Trinidad was seized by the time he spoke to Becker on the phone. To be
sure, two of the relevant factors support the government’s argument that the encounter
between Trinidad, Jose, and the police remained a consensual encounter. First, there
is no evidence in the record that any physical touching occurred, and second, there
was no language or intonation used indicating compliance was necessary.3 Five of the
relevant factors, however, weigh in favor of Trinidad and Jose.4 Three officers were
present at the trailer. The officers in this case positioned themselves so as limit
Trinidad and Jose’s freedom of movement. Trooper Hicks described his role as
“security” and stood in the driveway as Bignell and Molczyk went to the door of the
trailer. When Bignell returned to his vehicle to phone Becker, Molczyk remained near
the trailer door with Trinidad. Although we do not give the circumstance a great deal
of weight, see Drayton, 536 U.S. at 204-05, two of the officers were visibly armed.
The two remaining factors weigh most heavily in our analysis. First, in the course of
the encounter, Bignell told Trinidad he believed Trinidad and Jose were drug dealers.
Such inquisitorial statements are not present in the vast run of consensual encounters
between police and individuals, and certainly make any encounter more coercive. See
United States v. Drinkard, 900 F.2d 140, 142 (8th Cir. 1990) (concluding a seizure
occurred where DEA agents asked the defendant if he had drugs in his luggage).
Second, there is no indication that Bignell ever returned Trinidad’s identification card
before Trinidad spoke to Becker over the phone.5 Without his identification card, a
3
Because we conclude the remaining circumstances are sufficient to support the
district court’s conclusion Trinidad was seized, we assume, without deciding, that the
district court clearly erred when it found that Bignell “told” Trinidad to speak on the
phone to Becker.
4
We emphasize that we do not apply any rigid mathematical formula with
respect to the relevant factors in our analysis. We count factors merely to organize
our analysis.
5
The factual record is clear that Bignell took possession of Trinidad and Jose’s
identification cards during the early stages of the encounter. The record is silent,
-11-
reasonable person is much less likely to believe he can simply terminate a police
encounter. See Florida v. Royer, 460 U.S. 491, 503 n. 9 (1983) (noting that officers
taking possession of defendant’s airline ticket, luggage, and identification contributed
to the determination defendant had been seized because “[a]s a practical matter, Royer
could not leave the airport without them.”). Looking at all the circumstances, we
agree with the district court that a reasonable person in Trinidad’s circumstances
would not have felt free to terminate the police encounter and walk away (or attempt
to do so). Therefore, the district court did not err when it concluded Trinidad was
seized within the meaning of the Fourth Amendment by the time he spoke to Becker
on the phone.6
however, on if, and, more importantly when, Bignell returned the cards to the
brothers. After Bignell took possession of the cards, he returned to his car for roughly
five minutes where he telephoned Becker, relaying to him the names and information
for Trinidad, Jose, and Valenzuela-Machado. Bignell, while on the phone with
Becker, walked back to the trailer and handed the phone to Trinidad. Given these
historical facts, the district court inferred Bignell had not returned the cards before
Trinidad’s conversation with Becker. Giving “due weight to inferences drawn from
those facts by resident judges and local law enforcement officers,” United States v.
Gomez, 312 F.3d 920, 923 (8th Cir. 2002), we accept the district court’s finding as a
reasonable inference.
6
The district court also held, alternatively, Trinidad’s statements over the phone
to Becker were made involuntarily and while “in custody” for purposes of Miranda
v. Arizona. Although the government asserts error in the district court’s conclusion
that Trinidad’s statements were involuntary, we need not review the district court’s
voluntariness determination because our conclusion that Trinidad was illegally seized
is ultimately sufficient to uphold the district court’s suppression order. The
government does not challenge the district court’s determination that Trinidad was in
custody. Therefore, we decline to review and express no opinion on the district
court’s conclusions that Trinidad’s statements to Becker were involuntary and made
while in custody.
-12-
III
Having concluded that Trinidad was illegally seized without reasonable
suspicion of wrongdoing, we must next examine whether the district court erred, as
the government asserts, when the court determined the “fruit of the poisonous tree”
doctrine necessitated suppression of the physical evidence discovered during the
search of Trinidad and Jose’s residence.
The exclusionary rule “reaches not only primary evidence obtained as a direct
result of an illegal search or seizure . . . but also evidence later discovered and found
to be derivative of an illegality or fruit of the poisonous tree.” Segura v. United
States, 468 U.S. 796, 804 (1984) (internal marks omitted).7
The government argues that under the authority of United States v. Patane, 542
U.S. 630 (2004), suppression is inappropriate in this case. In Patane, the defendant
was lawfully arrested for violating a restraining order. Id. at 635. After his arrest, a
police officer attempted to read the defendant his Miranda rights, but was interrupted.
Id. Responding to a question by the police officer, the defendant admitted there was
a firearm in his bedroom. Id. The police officer seized the firearm. Id. The Court
held that although the defendant’s statement about the location of the gun must be
suppressed, the gun itself was admissible. Id. at 642.8 In so doing, the Court
7
Evidence obtained as a result of a constitutional violation may still be
admissible if the later discovery is significantly attenuated from the primary violation,
see, e.g., Brown v. Illinois, 422 U.S. 590, 604-05 (1975), if the later discovery was
inevitable, see, e.g., Nix v. Williams, 467 U.S. 431, 446 (1984), or if the later
discovery was supported by an independent, taint-free source, see, e.g., Murray v.
United States, 487 U.S. 533, 539-41 (1988). The government does not argue any of
these exceptions to the fruit of the poisonous tree doctrine apply in this case.
8
The reasoning behind Patane’s holding is difficult to follow due to the
fractured opinion issued by the Supreme Court. A three-judge plurality reasoned
-13-
announced a rule that the lack of a Miranda warning does not justify the suppression
of the physical evidence seized pursuant to a search warrant derived from a voluntary
“un-warned” statement. Id.
We find Patane inapplicable here. Rather, we are guided by Wong Sun v.
United States, 371 U.S. 471 (1963). In Wong Sun, law enforcement officers entered
a man’s residence without a warrant, in violation of the Fourth Amendment. Id. at
474. Once inside, the owner of the residence made an incriminating statement to
police–telling the police he knew someone who sold narcotics. Id. Acting on the
statement, the police went to the home of the second man and discovered drugs. Id.
at 475. The Supreme Court held the drugs must be suppressed. Id. at 488. The Court
reasoned (1) the warrantless entry into the first home was an illegal search, (2) the
admission of the owner of the first home as to the identity of the drug dealer was the
direct result of the illegal search, and not the result of “an intervening independent act
of a free will,” id. at 486, and (3) the drugs were found as a direct result of the
admission, id. at 488.
Although Patane, like this case, involved a Miranda violation,9 the similarities
end there. In Patane, the unwarned statements were made after a lawful arrest.
Patane, 542 U.S. at 635. In this case, by contrast, Trinidad’s unwarned statements to
Becker were themselves fruits of an illegal seizure. Applying Patane’s rule in this
context would swallow up the entirety of the fruit of the poisonous tree doctrine.
Miranda is not violated until the prior testimony is admitted at trial. Id. at 641. A
concurrence written by Justice Kennedy and joined by Justice O’Connor stated that
“[i]n light of the important probative value of reliable physical evidence, it is doubtful
that exclusion can be justified by a deterrence rationale sensitive to both law
enforcement interests and a suspect's rights during an in-custody interrogation.” Id.
at 645 (Kennedy, J., concurring).
9
The government does not dispute the district court’s conclusion that Trinidad’s
unwarned statements made to Becker at the Platte County jail ran afoul of Miranda.
-14-
Here, like in Wong Sun, the initial constitutional violation was a Fourth Amendment
violation. Trinidad was illegally seized without reasonable suspicion, which led
directly to his phone conversation with Becker about the details of his immigration to
the United States. The phone conversation supplied the only basis to arrest Trinidad,
and the arrest led directly to Trinidad’s subsequent admission he had entered the
United States illegally using fraudulent documents. Finally, the warrant application
to search Trinidad and Jose’s residence for the fraudulent documents was supported
by Trinidad’s admissions to Becker.10
Therefore, the district court did not err when it concluded the fruit of the
poisonous tree doctrine necessitated suppression of evidence discovered during the
search of Trinidad and Jose’s residence.
IV
For the foregoing reasons, we affirm.
10
The lone affidavit supporting the warrant application also referred to Jose’s
admission to Becker over the phone that he (Jose) was an illegal alien. The
government does not quarrel with the district court’s finding that Jose’s admission is
itself fruit of the poisonous tree because Bignell illegally entered the brothers’
residence to hand the phone to Jose after twice being denied consent to enter the
trailer.
-15-
WOLLMAN, Circuit Judge, dissenting.
Because I believe that the magistrate judge’s factual findings and legal
conclusions find support in the record, I would reverse the district court’s judgment
and hold that the items seized during the warrant-based search are admissible at trial.
My disagreement with the court’s holding lies not with its factual recitation of
the events that culminated in the arrest and detention of the defendants, but with its
conclusion that the facts require a holding that Trinidad was seized by the time he
spoke with Becker on the cell phone. I agree with the court that the first two of the
Griffith factors support the government’s argument that the interaction between
Trinidad, Jose, and the officers remained a consensual encounter throughout its
duration. I would hold, however, that the remaining Griffith factors, when viewed in
the light of the attendant circumstances, do not support a conclusion that a seizure
occurred.
First, the fact that Trooper Hicks described his role as “security” does not count
for much in my estimation in light of the fact that he had no contact with Trinidad and
Jose upon arriving at the scene. He testified that, after parking at the front of the
trailer, he watched the back portion of the trailer and was not in a position to observe
what was happening at the scene. True enough, he also testified that it would have
been his job to stop anyone who came from the trailer, but there is no evidence that
either Trinidad or Jose was aware of this fact. Indeed, as to them, Trooper Hicks
could justifiably be described as “little more than [a] passive observer[].” United
States v. White, 81 F.3d 775, 779 (8th Cir. 1996).
I give no weight to the fact that two of the officers were visibly armed, since
most members of the public expect law enforcement officers to be armed, and there
is no evidence that either of these officers ever by word or gesture in any way
indicated that the use of those side arms was being contemplated.
-16-
This brings us to the two factors that the court concludes most heavily weigh
in favor of a conclusion that a seizure occurred. As the court says, Bignell told
Trinidad during the course of the encounter that he believed that Trinidad and Jose
were drug dealers. This statement was made in response to Trinidad’s inquiry as to
what Bignell wanted and not in an introductory, accusatory manner. Trinidad’s
response to Bignell’s statement was to deny the allegation and to once again deny
Bignell’s request for consent to enter the trailer, hardly the response of one who
believed that he was powerless to do other than to comply with the officer’s requests.
I agree with the magistrate judge’s analysis and conclusion on this issue:
Up to this point, the record does not suggest that Trinidad and Jose
were coerced into talking to the police or that they were susceptible to
any pressure that may have been asserted by the officers. Indeed, they
affirmatively refused to allow the officers into the residence or to search
the residence.
Turning to the matter of the unreturned identification cards, one must weigh the
significance of that fact in the light of the circumstances. In contrast to the situation
in Florida v. Royer, there is no evidence that Trinidad and Jose were about to catch
a soon-to-depart airline flight or to undertake a cross-country journey. Accordingly,
I place no significance on the fact that their identification cards were not returned to
them before Trinidad’s telephone conversation with Becker.
In summary, I agree with the magistrate judge’s conclusion that Trinidad had
not been seized at the time he was handed the cell phone by Bignell and thereafter
conversed with Becker.
Likewise, I agree with the magistrate judge’s finding that Trinidad’s statements
to Becker at the jail were voluntarily made and its conclusion that in light of the
holding in United States v. Patane, the evidence seized pursuant to the warrant should
be held to be admissible at trial.
-17-
Having reviewed the challenge to the sufficiency of the warrant set forth in
Jose’s brief, I conclude that it is without merit.
______________________________
-18-
| {
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} |
STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket No. 169-12-13 Vtec
Marble Dealership Realty LLC Site Plan
Approval
DECISION ON THE MERITS
In this on-the-record appeal, Marble Dealership Realty, LLC (Applicant) challenges the
60-foot height limitation placed on its proposal to install an 80-foot-tall flagpole at its motor
vehicle sales business at 800 Putney Road in Brattleboro, Vermont. Prior to the application at
issue here, the Town of Brattleboro Development Review Board (DRB) permitted substantial
redevelopment at Applicant’s property, including a new 20- to 25-foot-tall building for
Applicant’s business.1 On September 24, 2013, Applicant applied for a zoning permit to install
an 80-foot-tall flagpole for a 600-square-foot American flag at its business. On October 21,
2013, the DRB held a hearing on the flagpole application and voted to approve it with the
condition that the flagpole be no more than 60 feet in height. The DRB issued its written
Decision, including Findings of Fact and Conclusions of Law, on November 12, 2013. Applicant
filed a timely appeal.
Applicant is represented by Sarah Biolsi Vangel, Esq.; the Town of Brattleboro (the
Town) is represented by Robert M. Fisher, Esq.
Discussion
Applicant argues that the DRB exceeded its authority in restricting the flagpole height
through its site plan review of the proposed flagpole. Specifically, Applicant argues (1) that the
flagpole is excluded from the definition of “land development” which requires a zoning permit
1
The prior redevelopment permit is not before us. The DRB’s November 12, 2013 decision on the flagpole notes
that on June 13, 2013, the DRB authorized substantial redevelopment (permit #2012-114) and that the permit was
amended on March 29, 2013 (permit #2013-031). Marble Dealership Realty, LLC, No. 2013-184, Findings of Fact,
Conclusions of Law, and Decision, at 2 (Town of Brattleboro Dev. Review Bd. Nov. 12, 2013). The permit and/or
amendment date(s) may be in error; otherwise the amendment date would have been prior to the original permit
date. In any event, these dates do not impact our decision here.
1
under the Town of Brattleboro Zoning Ordinance; (2) that even if a permit is required for the
flagpole, site plan approval is not required; and (3) that even if site plan approval is required,
the DRB’s decision was clearly erroneous, arbitrary, and capricious. (Applicant’s Brief at 5–9,
filed Apr. 15, 2014.) The Town argues that the DRB properly considered and decided the
flagpole application under its authority to conduct site plan review for “land development.”
(Town’s Brief at 8, filed May 16, 2014.) In its review, the DRB “considered the flagpole as an
element of the landscaping, reviewing the aesthetics of the pole, its architectural compatibility
and its harmonious relationship to the townscape.” Marble Dealership Realty, LLC, No. 2013-
184, Findings of Fact, Conclusions of Law, and Decision, at 3 (Town of Brattleboro Dev. Review
Bd. Nov. 12, 2013). Noting that an 80-foot flagpole would be a “significant departure” from the
existing townscape, the DRB concluded that the flagpole could be “no taller than the maximum
height permitted for buildings in the district” and conditioned approval of the flagpole on it
being a maximum of 60 feet tall. Id.
I. Standard of Review
In an on-the-record appeal, we review only the municipal panel’s decision, the record
made before the municipal panel, and the briefs submitted by the parties. In re Saman ROW
Approval, No. 176-10-10 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Sept. 2, 2011) (Durkin, J.).
We do not take new evidence or complete our own determination of the facts. Instead, this
Court will uphold the DRB’s factual findings if they are supported by substantial evidence in the
record. See In re Stowe Highlands Resort PUD to PRD Application, 2009 VT 76, ¶ 7, 186 Vt. 568.
We review the DRB’s legal conclusions without deference unless such conclusions are within
the DRB’s area of expertise. Id.
We interpret a zoning ordinance using the familiar rules of statutory construction. In re
Appeal of Trahan, 2008 VT 90, ¶ 19, 184 Vt. 262. We will “construe words according to their
plain and ordinary meaning, giving effect to the whole and every part of the ordinance.” Id.
Where the plain meaning of the ordinance is clear it must be enforced and no further
interpretation is necessary. Vermont Alliance of Nonprofit Orgs. v. City of Burlington, 2004 VT
57, ¶ 6, 177 Vt. 47 (citing Hill v. Conway, 143 Vt. 91, 93 (1983)).
2
II. Review of Proposed Flagpole
Applicant’s Statement of Questions asks whether the DRB had the authority to impose
the height limitation on the flagpole pursuant to various provisions of the Town of Brattleboro
Zoning Ordinance (BZO). In answering Applicant’s questions, we first consider whether the
flagpole was subject to the general permitting requirement of the BZO. We then consider the
DRB’s authority to impose the height limitation through site plan review.
Applicant’s property is located in the Commercial District and contains a motor vehicle
sales business, a permitted use in that district. BZO § 2350(b)(i). The height limitation for
buildings in the Commercial District is 60 feet.2 BZO § 2350(d)(i).
a. Land Development
Applicant’s Question 2 asks:
2. Whether installation of a flag pole is “land development” subject to the
permitting requirements of the Town of Brattleboro Zoning Ordinance?”
The BZO requires a zoning permit and site plan review and approval for any “Land
Development” or any change in or extension of the use of any land or structure. BZO §§ 1320,
1552. “Land Development” is:
The division of a parcel into two (2) or more parcels; the construction,
reconstruction, conversion, structural alteration, relocation or enlargement of
any building or other structure, or of any mining, excavation, or landfill, and any
change in the use of any building or structure or land, or extension of use of
land.
BZO § 6100 (emphasis added).
2
We note that the BZO’s provisions for height limitations use inconsistent terminology, arguably requiring differing
applications to buildings, structures, or other items, depending on the applicable height provision for the district at
issue. In the Commercial District, for example, the height limitation expressly applies to buildings only, whereas
the height limitation provision for the Urban Center District provides:
Building Height
(a) The maximum height of any new structure in this district is sixty (60) feet.
(b) The minimum height of any new building in this district shall be as follows . . .
BZO § 2348(d)(i) (emphasis added).
The provision for “exceptions to height limitations” provides that “[u]nless this Bylaw specifically provides to the
contrary, limitations on permissible heights of structures shall not apply to [an enumerated list of items]. BZO §
4170. Because we conclude that the flagpole is neither a “building” nor a “structure,” our analysis is the same
whether the Commercial District height limitation was meant to apply to structures generally or only to buildings.
3
We first note that the definition of “structure” specifically excludes “retaining walls,
fences, poles and lamp posts . . . .” BZO § 6100 (emphasis added). Because a flagpole is a type
of pole, it is not a structure under the BZO’s definition. A building is a structure with a roof that
is intended for shelter; the flagpole is therefore not a building. BZO § 6100.
We also note that shortly before Applicant’s flagpole application, the DRB approved
building reconstruction at Applicant’s property for its continued use as a motor vehicle sales
business. Applicant’s proposed flagpole is part of its motor vehicle sales use and does not
enlarge the size of Applicant’s building or its business operation. We therefore conclude that
the proposed flagpole is not a change in or extension of Applicant’s permitted motor vehicle
sales use.
The Town argues that because the flagpole must be placed approximately eight feet
deep in the ground, along with nine to ten yards of cement to stabilize it, the flagpole
installation is “excavation” and “landfill” falling under the “land development” permit
requirement of the BZO. (Town’s Brief at 8, filed May 16, 2014.) “Landfill” is defined as “[a]n
area where solid waste is disposed of in a controlled, managed manner; the filling of an area
with clean fill or other suitable materials.” BZO § 6100. The placement of a flagpole in the
ground with an adequate concrete footing is therefore not “landfill.” While the BZO does not
define “excavation,” it defines “Excavation/Quarry” as “[t]he activity and location of extraction
of soil, sand, or other materials . . . [which] usually involve heavy equipment and may cause
high levels of noise and dust.” BZO § 6100 (emphasis added). The BZO also provides specific
standards for “Excavation/Quarry,” requiring the DRB to make positive findings on 10 criteria
prior to issuance of a permit for “the removal of stone, sand or gravel from banks or quarries
and the processing of said materials.” BZO § 5120. The DRB made no findings or conclusions
regarding any “excavation” or “landfill” associated with the proposed flagpole.3 Although the
flagpole will require an adequate in-ground footing, we conclude on the limited evidence in the
3
Decisions afforded on-the-record review must include complete findings of fact in order “to make a clear
statement to the parties and the court in the event of an appeal on what was decided and how the decision was
reached.” In re Appeal of Leikert, No. 2004-213, slip op. at 1–2 (Vt. Nov. 2004 term) (unpublished mem.), available
at https://www.vermontjudiciary.org/UPEO2001-2005/eo04-213.pdf (discussing the important functions served by
findings of fact). This Court has been cautioned against “fill[ing] in the gaps” left by incomplete decisions. Id. at 2.
4
record4 that the digging and filling for this footing does not fit the plain meaning of
“excavation” or “landfill” as used in the “Land Development” definition.
Because the proposed flagpole is neither a structure, nor excavation, nor landfill, nor a
change in or extension of use, we conclude that the proposed flagpole is not “land
development” or a change in the use of land requiring a zoning permit under BZO § 1320.
As discussed below, however, a proposed item that is not itself “land development” may
be considered as an element of a proposed site plan. Thus, we next consider the flagpole under
the BZO’s site plan review provisions.
b. Site Plan Review
Several of Applicant’s questions, taken together, ask whether the DRB had authority to
consider the flagpole under site plan review and, if so, whether the DRB appropriately
considered and conditioned the height of the flagpole as part of its site plan approval.
The Site Plan Review Bylaw (bylaw) within the BZO provides:
Application. Prior to issuance of a zoning permit for any land development, such
proposed land development shall receive site plan review and approval as set
forth herein, unless specifically exempted under Section 1553, below. Any
proposal to eliminate, create new or alter existing structures, parking,
circulation, landscaping, lighting, drainage, screening, or any other site plan
element or standard, shall be subject to site plan review and approval.
BZO § 1552 (emphasis added). The flagpole is a “site plan element” that should have been
considered as an amendment to Applicant’s site plan approval for redevelopment. Indeed, the
site plan submission requirements are quite broad, including “[i]dentification of all work to be
done, including detailed changes that are proposed to the physical features of the site or
existing structures.” See BZO § 1556(a)(9), (b)(2) (setting forth submission requirements for
minor and major site plan review). Thus, we consider whether the DRB had authority to
regulate the height of the flagpole in considering the flagpole as an amendment to Applicant’s
site plan for the redevelopment.
The purpose of site plan review is to “protect the health, safety, convenience and general
welfare of the inhabitants of the Town.” BZO § 1551. The bylaw “regulates the development of
4
The application before the DRB included a diagram depicting an 80-foot-tall flag with an in-ground footing
approximately eight feet deep and six feet wide. (Exhibit 1 at 3.)
5
structures and sites in a manner which considers the following concerns and, where necessary,
requires modification of development proposals to eliminate or minimize potential problems
and nuisances.” Id. The “principal areas of concern,” as may be applicable here, include:
a. The balancing of landowners’ rights to use their land, with the corresponding
rights of abutting and neighboring landowners to live without undue
disturbances (e.g. noise, smoke, fumes, dust, odor, glare, stormwater runoff,
etc.);
b. . . .
c. . . .
d. The protection of historic and natural environmental features on the site
under review, and in adjacent areas.
Id.
Under the Site Plan Standards for Review, “the Board shall take into consideration, and
may impose appropriate conditions and safeguards with respect to [a list of criteria].” BZO §
1557. The criteria are broken up into four categories: (a) traffic and pedestrian access; (b)
circulation and parking; (c) landscaping and screening; and (d) protection of the utilization of
renewable energy resources. Id. Subsection (c), the landscaping and screening category, directs
the DRB to consider:
3. The building setbacks, area and location of parking, architectural
compatibility, signage, and landscaping of the development, and how these
features harmonize with the surrounding townscape and natural landscape.
5. Proper design for drainage, fire protection, outdoor lighting, aesthetics, and
similar site factors that are related to the above aspects of landscaping and
screening.
BZO § 1557(c).
The DRB made findings of fact related to subsection (c). Specifically, the DRB found that
“[t]he proposal will impact lighting, landscaping and how the property harmonizes with the
surrounding townscape.” Marble Dealership Realty, LLC, No. 2013-184, Findings of Fact,
Conclusions of Law, and Decision, at 2 (Town of Brattleboro Dev. Review Bd. Nov. 12, 2013).
While this statement rests in part on evidence in the record, it also incorporates an
interpretation of the Site Plan Standards for Review, which, along with other legal conclusions,
we review without deference. See Stowe Highlands Resort PUD to PRD Application, 2009 VT
76, ¶ 7, 186 Vt. 568.
6
We read the requirements of subsection (c) to address the adequacy and design of
landscaping, such as existing and proposed trees and other vegetation, as well as design aspects
related to such landscaping, including drainage and lighting. Although the BZO does not define
“landscaping,” we conclude that the proposed flagpole does not fit the ordinary meaning and
use of “landscaping.” The BZO expressly addresses landscaping-related elements, such as
drainage and lighting5, but it makes no mention of other items to be placed on a site, such as
flagpoles or other decorative items.
The BZO’s General Standards support this interpretation. Within the General Standards,
the purpose section of “Landscaping and Screening; Drainage and Lighting” states,
“[l]andscaping can play a major role in the reduction of noise, glare and other nuisances from
one use to another.” BZO § 4310. The section further states, “[l]andscaping, as referred to in
this Bylaw, shall include provisions for adequate on-site and off-site drainage, as well as lighting
of the entire site and its structures.” Id. The General Standards for landscaping include
requirements for vegetative plantings, fences, berms, screening of service areas, drainage, and
lighting. BZO §§ 4340–4350. In viewing the BZO as a whole, we conclude that the proposed
flagpole, though likely to be a prominent feature of Applicant’s property, will not itself be an
element of landscaping such as those items discussed in the General Standards.
Moreover, we find no ground for a height limitation among any of the considerations
outlined for landscaping in site plan review or the other site plan review criteria (traffic and
pedestrian access, circulation and parking, and protection of the utilization of renewable energy
resources). While the DRB has authority to review and impose conditions related to Applicant’s
landscaping, screening, and setbacks, such as requiring plantings of a certain height or in certain
locations, the site plan review bylaw makes no reference to limiting the height of other
proposed items at the site. Other than the 60-foot height limitation for buildings in the
Commercial District, we find no applicable height limitations in the Site Plan Review bylaw or
any other provisions of the BZO.
Therefore, considering the flagpole as an amendment to Applicant’s site plan for
redevelopment, we find no authority for imposing the 60-foot height restriction.
5
The Court notes that the DRB also addressed the lighting component of the flagpole proposal. The parties do not
appear to dispute the issue of lighting, and we therefore do not address it here.
7
Conclusion
For the reasons stated above, we conclude that the flagpole is not “land development.”
Assuming that the flagpole may be considered as a site plan element subject to review, we also
conclude that the flagpole does not fit the common meaning of landscaping or the meaning of
landscaping within the BZO. We therefore ultimately conclude that neither the Site Plan
Review Bylaw nor any other part of the BZO provides the DRB with authority to impose the 60-
foot height limitation on the flagpole.6
Accordingly, condition number 4 of the DRB’s November 12, 2013 decision limiting the
height of the flagpole to 60 feet is STRICKEN.
A judgment order accompanies this decision. This completes the current proceedings
before this Court.
Electronically signed on August 13, 2014 at 10:51 AM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
6
We do not suggest that the Town is prohibited from regulating the height flagpoles such as the one proposed;
rather, we conclude that the BZO, as written, does not provide the DRB authority to impose the height limitation at
issue.
8
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The Honorable James L. Edwards Opinion No. B-976
Comanche County Attorney
Box 147 Re: Whether a county is
Comanche, Texas 76442 required to provide
ambulance service.
Dear Mr. Edwards:
You have requested our opinion concerning whether a
county is required to provide ambulance service.
It is well established in the opinions of this office
that a county 2 provide ambulance service pursuant to the
commissioner court's power regarding public health. Attorney
General Opinions M-806 (1971), M-385 (1969), C-722 (1966);
see V.T.C.S. arts. 2372t, 4418f. In Attorney General Opinion
M-385, it was decided that a hospital district was authorized
but not required to provide ambulance service. We have dis-
covered no authority which would require a county to provide
ambulance service. Article 4418f gives commissioners courts
"the authority" to expend money for public health purposes
which might include ambulance service~but does not require
them to provide such service. In the absence of a statute
or constitutional provision imposing such a duty, in our
opinion a county,is not required to provide ambulance service.
SUMMARY
A county may, but is not required to,
provide ambulance service.
Very truly yours,
p. 4066
The Honorable James L. Edwards - page 2 (H-976)
APPROVED:
Opinion Committee
kill1
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696 F.Supp. 800 (1988)
TOWN OF CHARLESTOWN, RHODE ISLAND, et al.
v.
The UNITED STATES of America, et al.
Civ. A. No. 87-0580 P.
United States District Court, D. Rhode Island.
July 13, 1988.
*801 Deming E. Sherman, Mark Dolan, Providence, R.I., for plaintiffs.
Everett C. Sammartino, Asst. U.S. Atty., Providence, R.I., Howard Sweet, Jr., Westerly, R.I., Gordon Cleary, David Dugan, Sp. Asst. Atty. Gen., State of R.I., Providence, R.I., for U.S.
OPINION AND ORDER
PETTINE, Senior District Judge.
The Town of Charlestown together with Gary W. Anderson, Sr., president of the Charlestown Town Council, and Phyllis T. Brown, vice-president of the Charlestown Town Council, have brought this action for declaratory and injunctive relief under the contract clause, art. 1, section 10, of the United States Constitution and art. 1, section 12 of the Rhode Island Constitution. The gravamen of plaintiffs' complaint is that the Act of June 28, 1985, Pub.L. No. 1985, ch. 386, 1985 R.I.Pub. Laws 912 (codified as R.I.Gen.Laws sections 37-18-2, 37-18-3, 37-18-7, 37-18-12, 37-18-13, 37-18-14, and 37-18-15) (amending the Narragansett Indian Land Management Corporation Act, Pub.L. No. 1979, ch. 116, 1979 R.I.Pub. Laws 402), unconstitutionally interferes with a contractual agreement into which the Town of Charlestown entered with the State of Rhode Island, the United States of America and the Narragansett Tribe of Indians. The latter defendant has responded that plaintiffs lack standing to assert this claim.
BACKGROUND
The Narragansett Tribe of Indians filed two lawsuits in the United States District Court for the District of Rhode Island on January 8, 1978. As defendants in these suits, the Narragansett Indians named the Director of the Rhode Island Department of Environmental Management and myriad private landowners. Through these suits, the Tribe sought possession of approximately 3,200 acres of public and private *802 land in Charlestown, Rhode Island. According to the Tribe, it owned and occupied these lands as part of its aboriginal territory and reservation. Moreover, the Tribe contended, these lands were improperly alienated from it in 1880 by the State of Rhode Island in violation of the Trade and Intercourse Act of 1790, the final 1834 version of which was codified as 25 U.S.C. section 177. The relevant provision of this Act provides that
No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.
Because the contested alienation of its tribal lands was never approved by the federal government as required by this Act and the Tribe's aboriginal title to these lands was never extinguished, the Tribe claimed that its title to these lands was superior to any title held by the state or private landowners that can be traced to the allegedly illegal transfer of 1880.
After consolidation into a single action the Tribe successfully moved to strike certain defenses asserted by the State and private landowners. This success led to lengthy negotiations between the parties to the lawsuit, including then Governor Garrahy and the Charlestown Town Council. As the United States Congress found and declared, "the pendency of these lawsuits has resulted in severe economic hardships for the residents of the town of Charlestown by clouding the titles to much of the land in the town, including lands not involved in the lawsuits." 25 U.S.C. section 1701(b). At this time, the Congress further declared that it "shares with the State of Rhode Island and the parties to the lawsuits a desire to remove all clouds on titles resulting from such Indian land claims within the State of Rhode Island." 25 U.S. C. section 1701(c). This desire was realized on February 28, 1978, when the negotiations resulted in a settlement agreement which resolved the Tribe's claims out of court. The settlement agreement "set[] forth a number of provisions which would form the basis for a legislative resolution of the Tribe's claim based upon the consent of all parties." H.Rep. No. 1453, 95th Cong., 2d Sess. 6 (1978) reprinted in 1978 U.S.Code Cong. & Admin.News 1948, 1950. In particular, the terms of the settlement agreement provided:
(1) that the State would enact legislation creating a state-chartered, Indian-controlled corporation with an irrevocable charter for the purpose of permanently holding and managing the settlement lands in trust for the Narragansett Indians, id.;
(2) that the settlement lands would include approximately 900 acres of state-owned land and approximately 900 acres of privately held land, id.;
(3) that the public settlement land would be conveyed by the state without compensation, while the private settlement lands would be purchased at fair market value via an option mechanism with $3.5 million contributed by the federal government, id.;
(4) that the development and use of the settlement lands would be governed under a land use plan, incorporated into the Town zoning ordinance, which required all of the public settlement lands and 75 percent of the private settlement lands to be used for conservation purposes and which was otherwise mutually acceptable to the Charlestown Town Council and the state-created corporation, id. at 7;
(5) that the settlement lands would be subject to a special federal restraint against alienation and exempt from federal, state, and local taxation, except with respect to "in lieu" payments for governmental services provides by the town with respect to the lands, id.;
(6) that all laws of the state would continue in full force and effect on the settlement lands, but the state-created corporation would be given authority to establish its own hunting and fishing regulations on the settlement lands, id.;
(7) that the Narragansett Tribe of Indians agree to cause their lawsuits to be *803 dismissed with prejudice and consent to the extinguishment by the federal government of all Indian claims for possession of land within Rhode Island which would clear non-Indian title to non-settlement lands claimed by the Tribe, id.
The implementing legislation required of the United States Congress and the Rhode Island Legislature by this agreement was passed on September 30, 1978 and May 4, 1979 respectively. See Rhode Island Indian Claims Settlement Act, Pub.L. No. 95-395, 92 Stat. 813 (1978); Narragansett Indian Land Management Corporation Act, Pub.L. No. 1979, ch. 116, 1979 R.I.Pub. Laws 402. Plaintiffs do not take issue with either of these Acts passed pursuant to the agreement.
The federal legislation established a fund and set forth various provisions governing the purchase of the privately owned settlement lands. 25 U.S.C. sections 1703-07, 1710. In particular, the purchase and transfer of the private settlement lands was conditioned on the creation by the State of Rhode Island of a state chartered corporation pursuant to the terms of the settlement agreement. See 25 U.S.C. 1705-07. Moreover, this Act provided, inter alia, that "the settlement lands received by the State Corporation shall not be subject to any form of federal, state, or local taxation while held by the State Corporation." 25 U.S.C. section 1715(a). This exemption did not apply, however, "to any income-producing activities occurring on the settlement lands," 25 U.S.C. section 1715(b), nor did it "prevent the making of payments in lieu of taxes by the State Corporation for services provided in connection with the settlement lands." 25 U.S.C. section 1715(c).
The state legislation implementing the agreement "authorized, created and established a permanent, public corporation of the state having a distinct legal existence from the State and not constituting a department of state government." R.I.G.L. section 37-18-3 (1985 Reenactment). Under this Act, this corporation, which was created for the purpose of acquiring, managing and purchasing real property pursuant to the settlement agreement,
shall consist of nine (9) directors, five (5) of whom shall be appointed by the Indian Corporation [the Narragansett Tribe], two (2) of whom shall be appointed by the Governor ..., one (1) of whom shall be appointed jointly by the Speaker of the House of Representatives, and by the majority leader of the Senate, and one (1) of whom shall be appointed by the Town Council.
Id. at section 37-18-5(b). Moreover, in accordance with the federal legislation, the state act exempted the settlement lands from any taxes or assessments. Instead the Act provided that
[t]he Corporation shall make payments in lieu of real property taxes and assessments to the Town with respect to income-producing projects of the Corporation located in the Town and for police, fire, sanitation, health protection and municipal services provided by the Town to the real estate held by the Corporation in the Town. Such payments in lieu of taxes shall be in such amounts as shall be agreed upon by the Corporation and the Town.
Id. at section 37-18-9(b).
Subsequent to the passage of the Narragansett Indian Land Management Corporation Act of 1979, the Rhode Island legislature passed An Act Relating to the Narragansett Indian Land Management Corporation, Pub.L. No. 1985, ch. 386, 1985 R.I. Pub. Laws 912. It is with this latter Act that plaintiffs take issue. This statute amended the earlier one in two substantial respects. It provided for the expiration of the Narragansett Indian Land Management Corporation and for the transfer of the settlement lands to the Narragansett Tribe of Indians. The former was accomplished by section 37-18-12:
37-18-12. Expiration of the corporation. Upon presentation of evidence to the Narragansett Indian Land Management Corporation and the Rhode Island Secretary of State that the Indian Corporation known as the Narragansett Tribe of Indians has applied for and been *804 granted by the United States Government pursuant to 25 U.S.C. section 1707 and 25 Code of Federal Regulations, Part 83, Federal recognition as an Indian Tribe with inherent rights, powers and responsibilities possessed by Indian Tribes in the United States, the Narragansett Indian Land Management Corporation shall expire thirty (30) days after the presentation of such evidence.
The latter was effected by sections 37-18-13 and 37-18-14. Section 37-18-13 stated:
37-18-13. Transfer of land to Indian tribe. Upon presentation of such federal recognition to the Narragansett Indian Land Management Corporation and the Secretary of State, the Narragansett Indian Land Management Corporation shall forthwith transfer and convey to the federally recognized Narragansett Tribe of Indians all powers, authority, rights, privileges, titles, and interest it may possess to any and all real property acquired, owned, and held for the benefit of those individuals of Indian ancestry set forth in the list established pursuant to public laws, 1880 chapter 800, sec. 4, and thereafter, the Narragansett Indian Land Management Corporation shall have no further interest in said real property.
Section 37-18-14 provided:
37-18-14. Transfer of state land to the Indian tribes. Upon presentation of such federal recognition to the Narragansett Indian Land Management Corporation and the Secretary of State, the Governor is authorized, empowered and directed to transfer, assign and convey to the Narragansett Tribe of Indians in fee simple all the right, title and interest of the state and to the following approximately nine hundred (900) acres of real estate located in the town;
(a) The Indian Cedar Swamp Management Area;
(b) Indian Burial Hill; and
(c) the State land around Deep Pond.
In most other respects, this amendment does not appear to alter the status quo. Rather than the Land Management Corporation, the Narragansett Tribe of Indians now has the right to make rules and regulations regarding fish and game conservation on the settlement lands provided that this is done in consultation with the director of environmental management and that minimum standards for the safety of persons and the protection of wildlife and fish stock are imposed. Section 37-18-8. Rather than the Land Management Corporation, the Narragansett Tribe of Indians is not required to pay any taxes or assessments upon or in respect to any of the settlement lands levied by the Town, but is required to make payments in lieu of real property taxes and assessments to the Town with respect to income-producing projects of the Tribe and for police, fire, sanitation, health protection and municipal services provided by the Town to the settlement lands; these payments being made in amounts agreed upon by the Narragansett Tribe and the Town. Section 37-18-9. Moreover, the settlement lands will still be subject to a land use plan and, unless otherwise provided, to all the criminal and civil laws of the State and the Town. Sections 37-18-10, 37-18-11. As the amendment states in summary fashion:
All real property transferred by the Narragansett Indian Land Management Corporation to the federally recognized Narragansett Tribe of Indians pursuant to this provision:
(a) shall be subject to the same conditions, restrictions, limitations, or responsibilities set forth in sections 37-18-6(m)(ii) and (m)(iii), 37-18-8, 37-18-9, 37-18-10, and 37-18-11 hereof as are applicable to the corporation and all its authorized activities.
(b) shall be subject to the civil and criminal laws of the state of Rhode Island and the town of Charlestown, Rhode Island, except as otherwise provided herein.
Section 37-18-13.
Concerning these latter points, it should be observed that this amendment does affect the federal tax exempt status of the settlement lands. Under the Rhode Island Indian Claims Settlement Act, "the settlement lands received by the State Corporation *805 [the Land Management Corporation] shall not be subject to any form of Federal, State, or local taxation while held by the State Corporation." 25 U.S.C. section 1715(a) (emphasis added). Accordingly, while the state and local tax exemptions are kept in force by the state legislation amending the Narragansett Indian Land Management Corporation Act, the transfer of the settlement lands from the Land Management Corporation to the Narragansett Tribe of Indians does effectively end their tax exempt status under the operative language of the federal statute: the lands are no longer held by the State Corporation.
Since the passage of the challenged amendment by the Rhode Island legislature, according to plaintiffs, the Narragansett Tribe of Indians has applied for and been granted by the United States Government pursuant to 25 U.S.C. section 1707 and 25 C.F.R., Pt. 83, federal recognition as an Indian Tribe with the inherent rights, powers and responsibilities possessed by Indian Tribes in the United States. As a result, the settlement lands held by the Narragansett Indian Land Management Corporation and by the State of Rhode Island have been transferred to the Narragansett Tribe of Indians and the Land Management Corporation has expired. Moreover, according to plaintiffs, the Narragansett Tribe of Indians have submitted and now have pending before the Department of the Interior pursuant to 25 U.S.C. sections 464 and 465, an application for permission to transfer the settlement lands to the United States in order that these lands be held in trust for the Tribe.
Believing that they will be immediately and irreparably harmed if this application for trust status is granted, plaintiffs have entered this court and prayed for relief.
The Requested Relief
Plaintiffs have made 17 different demands for relief, correlating each demand with a separate letter of the alphabet, beginning with "A" and ending with "Q". In spite of this abecedarian diversity, plaintiffs' demands can be reduced to two related claims.
Plaintiffs argue that the settlement agreement constitutes a contract [A] and that the 1985 amendment to the Narragansett Indian Land Management Corporation Act by the Rhode Island legislature violates this contract [B]. Accordingly, plaintiffs claim that the State of Rhode Island has violated the contract clause, Art. I, section 10, of the United States Constitution and the analogous clause, Art. I, section 12, in the Rhode Island Constitution [C]. To correct this constitutional violation, plaintiffs request this court to declare the transfer of settlement lands to the Narragansett Tribe of Indians pursuant to section 37-18-13, and section 37-18-14 null and void and re-establish the status quo ante [section 37-18-13: D, I, J; section 37-18-14: E, F, K]. Moreover, plaintiffs request this court to order that the Narragansett Land Management Corporation be reactivated [G] and that, in compliance with the settlement agreement, the title to the settlement lands be held by it in perpetuity [L].
Plaintiffs also request this court to declare that the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island and the local ordinances of the Town of Charlestown [N]. Such a declaration by this court, however, would be wholly redundant because the challenged amendment itself, in sections 37-18-13, 37-18-14 and 37-18-11, contains this declaration. Similarly unnecessary is plaintiffs' request that this court declare that the Town of Charlestown shall provide municipal services to the settlement lands only if the Town is reimbursed for the costs of such services by the Narragansett Tribe [O]. Section 37-18-13 mandates that the Narragansett Tribe is subject to many of the same obligations that the Narragansett Indian Land Management Corporation had been subject with respect to the settlement lands and that, in particular, the Tribe is required to make payments in lieu of taxes to the Town pursuant to section 37-18-9(b). This provision also renders unnecessary plaintiffs' request for an injunction enjoining any development *806 of the settlement lands until a land use plan is accepted by the Town Council of the Town of Charlestown [M]. Section 37-18-13 specifically states that the Narragansett Tribe of Indians is subject to section 37-18-10 and this latter section requires that a land use plan be accepted by the Town before any use can be made of the settlement lands. Accordingly, these three demands for relief will not be further considered.
Nor will this court consider plaintiffs' request for an injunction enjoining the United States of America, the Department of Interior, the Bureau of Indian Affairs and the individual defendants Secretary Hodel, Assistant Secretary Swimmer and Eastern Area Office Director Ott from acting upon the application for trust status submitted by the Narragansett Tribe of Indians [H]. On this matter, plaintiffs have reached an agreement with the other parties during a conference before this court on November 9, 1987. Recognizing that this agreement obviates the need for the requested injunction, plaintiffs have withdrawn the request. Hearing before the Hon. Raymond J. Pettine, at 5 (November 9, 1987). In lieu of an injunction the relevant defendants have represented to plaintiffs before this court that they will be given sufficient notice before any action is taken upon the application of the Narragansett Tribe. Id.
Plaintiffs end their catalogue of desired relief by requesting costs and fees [P] as well as any other relief that this court declares just and proper [Q].
In sum, the only federal claim that remains before this court upon which relief can be predicated is the alleged violation of the contract clause of the United States Constitution by the State of Rhode Island. Against this claim, however, it is asserted that plaintiffs have no standing to proceed. The standing of the Town of Charlestown and the councilmen will be considered in turn.
Municipal Standing
The Town of Charlestown claims standing under the contracts clause of the United States Constitution to challenge a statute enacted by the Rhode Island legislature. It is legion in constitutional law that the standing of a creature of a state to sue the state that created it is severely limited. "Political subdivisions generally are held to lack constitutional rights against the creating state." Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d section 3531.11. In particular "[m]unicipal corporations have regularly been denied standing in the federal courts to attack state legislation as violative of the federal Constitution, on the ground that they have no rights against the state of which they are a creature." Hart & Wechsler, The Federal Courts and the Federal System 182 (2d ed.1973).
The specific question whether a municipality has standing under the contracts clause of the United States Constitution to challenge a statute enacted by the state of which it is a subdivision has been ruled upon many times by the Supreme Court. Each time the Court has offered the same response: a municipality lacks standing. While this stricture on municipal standing may be relaxed when a municipality acts in its private and proprietary capacity, the rule is absolute when a municipality acts with public and governmental purpose. In the present case, the Town has not asserted any private or proprietary interest that has been infringed. The challenged legislation and the settlement agreement it affects concern only the conveyances of lands within the township and the rights and duties of the Town with respect to the provision of police, fire, sanitation, health protection and other municipal services to these lands. The clear public character of the municipal rights and interests affected leaves no doubt that the Town of Charlestown contests this statute in its public and governmental capacity. Accordingly, it does not even present an arguable case that it has standing.
The basic principles from which this rule emerges were set forth with great clarity and force by the Supreme Court in Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907). Therein, Justice Moody, *807 writing for the Court, states that "[w]e think the following principles have been established by [earlier Supreme Court decisions] and have become settled doctrines of this court, to be acted upon wherever they are applicable." Hunter v. Pittsburgh, 28 S.Ct. at 46. The principle from which he begins is that "[m]unicipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the state as may be intrusted to them." Id. Accordingly, Justice Moody continues, "[f]or the purpose of executing these powers properly and efficiently they usually are given the power to acquire, hold, and manage personal and real property." Id. Moreover, given the nature and purpose of municipal corporations, it follows that "[t]he number, nature, and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the state." Id. Amplifying this point, Justice Moody notes that "[n]either their charters, nor any law conferring governmental powers, or vesting in them property to be used for governmental purposes, or authorizing them to hold or manage such property, or exempting them from taxation upon it, constitutes a contract with the state within the meaning of the Federal Constitution." Id. From these reflections the inference is drawn that "[t]he state, therefore, at its pleasure, may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation," and that "[a]ll this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protests." Id. Reasoning thus, Justice Moody reaches the ineluctable conclusion that "[i]n all these respects the state is supreme, and its legislative body, conforming its action to the State Constitution, may do as it will, unrestrained by any provision of the Constitution of the United States." Id. In the final analysis, "[t]he power is in the state, and those who legislate for the state are alone responsible for any unjust or oppressive exercise of it." Id. 28 S.Ct. at 47.
The rule that a municipal corporation cannot challenge a state statute as violative of the contract clause of the United States Constitution was set out with even greater brevity in Pawhuska v. Pawhuska Oil & Gas Co., 250 U.S. 394, 39 S.Ct. 526, 63 L.Ed. 1054 (1919). In that case, the Supreme Court considered whether a state statute that effected an impairment of a franchise contract between a city and a gas company was in violation of the contract clause of the Constitution of the United States. Quoting the reasoning of Justice Moody in Hunter to justify its decision, the Court held that "no question under the contract clause of the Constitution of the United States is involved, but only a question of local law, the decision of which by the Supreme Court of the State is final." Pawhuska, 250 U.S. at 397, 39 S.Ct. at 257. Three years later this rule was deemed so well settled that the Supreme Court could write in Trenton v. New Jersey, 262 U.S. 182, 43 S.Ct. 534, 537, 67 L.Ed. 937 (1922), that "[t]he power of the state, unrestrained by the contract clause or the Fourteenth Amendment, over the rights and property of cities held and used for `governmental purposes' cannot be questioned." See also Williams v. Mayor, 289 U.S. 36, 40, 53 S.Ct. 431, 432, 77 L.Ed. 1015 (1933) (Cardozo, J.).
In Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939), the Supreme Court formulated this rule explicitly in terms of standing. Therein, Chief Justice Hughes, writing for the Court, stated that "[b]eing but creatures of the State, municipal corporations have no standing to invoke the contract clause ... of the Constitution in opposition to the will of their creator." Coleman v. Miller, 307 U.S. at 441, 59 S.Ct. at 976. See also Ball v. Rapides Parish Police Jury, 746 F.2d 1049, 1051 n. 1 (5th Cir.1984).
In light of the foregoing, the decision this court must reach is clear. Bound by precedent and convinced by reason, this court holds that the Town of Charlestown *808 lacks standing to challenge the Rhode Island legislation that it claims is in violation of the contract clause of the Constitution of the United States.
Residential Standing
Beside the Town of Charlestown, two councilmen of the Town Council of the Town of Charlestown participate as plaintiffs in the present action. These two councilmen claim standing both as residents and as officials of the Town of Charlestown. Each of these theories of standing will be considered in turn.
As residents of the Town of Charlestown, the councilmen claim that they have standing because of their interest "in ending unlawful activities which will impact upon land use regulation, revenue collection, enforcement of laws and ordinances, and the quality of life in the Town in which each resides." Plaintiffs' Memorandum In Opposition To Motion To Dismiss, at 9. This court cannot help but express its bewilderment at plaintiffs' description of the impact of the challenged legislation. As already noted, the allegedly unconstitutional statute does not alter the Town's position with respect to land use regulation, revenue collection or the enforcement of laws and ordinances. Sections 37-18-11, 37-18-13 and 37-18-14 impose the same conditions and restrictions on the Narragansett Tribe of Indians as had been imposed on the Narragansett Land Management Corporation. Accordingly, it appears that the only grievance that the residents assert is that the contested legislation will affect the quality of life in the town in which they reside. Nonetheless, even if their description of the challenged statute's impact is accepted, still the residents complaints amount to only generalized grievances and as such are insufficient to support standing.
The Supreme Court has held on many occasions that "when the asserted harm is a `generalized grievance' shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction." Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) citing Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974); United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974); Ex parte Levitt, 302 U.S. 633, 58 S.Ct. 1, 82 L.Ed. 493 (1937). The "generalized interest of all citizens in constitutional governance," when infringed by the passage of an unconstitutional statute by the legislature, is too abstract an injury to support standing. Schlesinger, 94 S.Ct. at 2930. "`[G]eneralized grievances' about the conduct of Government," id., provide a basis neither for taxpayer standing, Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), nor for citizen standing. Schlesinger, 94 S.Ct. at 2933. "Such a generalized interests ... is too abstract to constitute a `case or controversy' appropriate for judicial resolution." Id. at 2935.
This court is unable to discern any material or relevant difference between the level of generality or abstractness of a resident's interest in constitutional governance and the generalized interests of taxpayers and citizens. Accordingly, this court is compelled to determine that the councilmen lack standing as residents of the Town of Charlestown. The Supreme Court has repeatedly "refrained from adjudicating `abstract questions of wide public significance' which amount to `generalized grievances,' pervasively shared and most appropriately addressed in the representative branches." Valley Forge Christian College v. Americans United For Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 760, 70 L.Ed.2d 700 (1982) quoting Warth v. Seldin, 95 S.Ct. at 2205-06. "Slow, cumbersome, and unresponsive though the traditional electoral process may be thought at times, our system provides for changing members of the political branches when dissatisfied citizens convince a sufficient number of their fellow electors that elected representatives are delinquent in performing duties committed to them." United States v. Richardson, 94 S.Ct. at 2948.
Nor is this court the first one to find that residents as such lack standing to bring a constitutional challenge. In an action *809 brought by residents to contest the constitutionality of a sale of municipal property to a religious organization for a single dollar, the District Court for the District of Connecticut found plaintiffs' status as residents insufficient to support standing. Therein, the court noted that "[w]hile all residents may suffer from diminished municipal services because of the allegedly unconstitutional transaction, that possibility is too remote and speculative to constitute actual injury for purposes of standing." Annunziato v. New Haven Board of Aldermen, 555 F.Supp. 427, 431 (D.Conn.1982).
Mindful that "[a]bstract injury is not enough," O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974), and that a plaintiff must allege that he "`has sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged statute or official conduct," id., this court turns to consider the contention of the councilmen that they have standing as officials of the Town of Charlestown.
Official Standing
As Town officials, the councilmen claim that they have standing because the challenged state statute forces them into an irresolvable dilemma: either they must violate their oaths as Town officials to support the Constitution of the United States or refuse to perform their duties pursuant to state law and face possible expulsion from office. This dilemma, they claim, is sufficient to grant them standing.
To support this theory of standing, plaintiffs invoke the opinion of the Supreme Court in Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). Prior to Allen, it was indisputable that state officials did not have a sufficient interest in vindicating the Constitution of the United States to allow them standing to challenge the constitutionality of a state statute they were charged with enforcing. Columbus & Greenville Ry. v. Miller, 283 U.S. 96, 51 S.Ct. 392, 75 L.Ed. 861 (1931); Braxton County Court v. West Virginia, 208 U.S. 192, 28 S.Ct. 275, 52 L.Ed. 450 (1908); Smith v. Indiana, 191 U.S. 138, 24 S.Ct. 51, 48 L.Ed. 125 (1903). In Allen, however, members of a school board were granted standing to challenge the constitutionality of a state statute that required them to lend textbooks at no cost to students attending parochial schools. Therein, the Supreme Court disposed of the standing question in a footnote:
Appellees do not challenge the standing of appellants to press their claim in this Court. Appellants have taken an oath to support the United States Constitution. Believing section 701 [the challenged statute] to be unconstitutional, they are in the position of having to choose between violating their oath and taking a step refusal to comply with section 701 that would be likely to bring their expulsion from office and also a reduction in state funds for their school districts. There can be no doubt that appellants thus have a "personal stake in the outcome" of this litigation. Baker v. Carr, 369 U.S. 186, 204 [82 S.Ct. 691, 703, 7 L.Ed.2d 663] (1962).
Board of Education v. Allen, 392 U.S. at 241 n. 5, 88 S.Ct. at 1925 n. 5.
Beginning an evaluation of plaintiffs' authority, this court can do no better than to borrow the language of the Ninth Circuit in City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 625 F.2d 231 (9th Cir.), cert. denied 449 U.S. 1039, 101 S.Ct. 619, 66 L.Ed.2d 502 (1980). Therein, the Ninth Circuit wrote, "[w]ere Allen the last word from the Supreme Court on standing, we could simply adopt the rationale of the quoted footnote and determine that the councilmembers in the case before us have standing on the basis that they believe that enforcing the [challenged state statute] would violate their oaths of office." City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 625 F.2d at 236. As the Ninth Circuit went on to observe, however, the quoted footnote was not the last word from the Supreme Court on standing. This court joins in that observation.
Since Allen, the Supreme Court has tightened the requirements of standing. *810 On the one hand, the Supreme Court has made it pellucidly clear that abstract interests and generalized grievances are not sufficient to support standing. Schlesinger v. Reservists Committee to Stop the War, supra; United States v. Richardson, supra. On the other hand, the Supreme Court has recently emphasized that "[t]he injury or threat of injury must be both `real and immediate', not `conjectural' or `hypothetical.'" O'Shea v. Littleton, supra, quoting Golden v. Zwickler, 394 U.S. 103, 109-10, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969); see also Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984); City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983). It is against these twin requirements of standing that the twin horns of the councilmen's dilemma must be evaluated.
Essentially, a dilemma creates standing because either of the two possible actions available to the plaintiff will result in injury sufficient to support standing. By definition, a dilemma does not permit plaintiff a third course of action by which he could avoid the threatened injuries. Accordingly, this court must consider whether the injury that would result from each horn of the councilmen's dilemma would be sufficient to support standing as well as whether any other course of action is available to the councilmen that would permit them to avoid the threatened injuries.
Elucidating the first horn of their dilemma, the councilmen explain that each of them has sworn an oath to uphold the Constitution of the United States and that each of them believes that it would be a violation of that oath "to recognize a patently unconstitutional state law." Plaintiffs' Memorandum in Opposition to Motion to Dismiss, at 8. While the seriousness with which the councilmen take their oath of office is laudable, this court is forced to admit that it fails to perceive what direct and palpable injury will befall the councilmen should they recognize a validly enacted law as law.
This court acknowledges the abstract psychic injury one can experience when self-reproached for acting against the dictates of one's own conscience. Moreover, this court further acknowledges the severe moral gravity of the diminution in self-respect and self-worth that often accompanies such condemnations of self. Nonetheless, this court does not believe that the censures of conscience are sufficient to constitute the injurious consequences contemplated by the Supreme Court when it articulated the injury in fact requirement of Article III. As the Ninth Circuit observed in a similar case in which it denied standing, "[n]o consequences, save these of conscience self-imposed by the councilmembers' personal beliefs, flow from the violation of the oath in performance of a statutory duty." City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 625 F.2d at 237. In short, a controversy between the Super ego and the Id is not justiciable.
The councilmen's censures of conscience stem from an honest and sincere disagreement with the Rhode Island Legislature over a matter of constitutional principle. Nonetheless, disagreement over constitutional principles and outrage at legislative enactments that conform to those principles with which one disagrees are not sufficient to generate standing to contest those enactments. While every individual who lives within our constitutional democracy has an interest in furthering constitutional interpretations which conform to one's personal commitments and beliefs, as myriad constitutional scholars will lamentingly admit, such an interest is too general and abstract to meet the minimum constitutional mandate of Article III. "The lesson of Schlesinger and Richardson is that constitutional principle divorced from concrete injury may suffice to generate a spirited legislative or public debate, but will not support a federal case." Id. at 238. "As Professor Davis has put it: `The basic idea that comes out in numerous cases is that an identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation.'" United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 *811 U.S. 669, 93 S.Ct. 2405, 2417 n. 14, 37 L.Ed.2d 254 (1973) quoting Davis, Standing: Taxpayers and Others, 35 U.Ch.L.Rev. 601, 613 (1968). Here, however, the councilmen have not articulated even a direct and palpable trifle.
The councilmen characterize the second horn of their dilemma as a kind of conscientious objection. The councilmen claim that were they to act in accord with the dictates of their own conscience and not violate their oath of office, they would refuse to obey or carry out the effect of the contested state law and would "face possible expulsion from office or other official sanction." Plaintiffs' Memorandum in Opposition to Motion to Dismiss, at 8. Accordingly, it must be considered whether this possibility of expulsion from office or other official sanction is sufficient to confer standing upon the councilmen. This court believes that the councilmen's alleged injury is deficient in two respects.
In Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976), the Supreme Court stated that the "case or controversy" limitation of Article III "requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant...." In Simon, the Supreme Court was confronted with a Revenue Ruling which announced an Internal Revenue Service policy of extending favorable tax treatment under the Internal Revenue Code of 1954 to hospitals that did not serve indigents to the extent of the hospitals' financial ability. The plaintiffs claimed that they and other indigents were injured by this Ruling because it "encouraged" hospitals to deny medical services to indigents. The Supreme Court ruled, however, that this injury was not sufficient to confer standing because the plaintiffs had failed to carry the burden of showing that their injury was the consequence of the revenue ruling. The Supreme Court noted that "[i]t is purely speculative whether the denials of service specified in the complaint fairly can be traced to petitioners' `encouragement' or instead result from decisions made by the hospitals without regard to the tax implications." Simon, 96 S.Ct. at 1926. In other words, because the decisions which proximately caused plaintiffs' injuries intervened between defendant's action and plaintiffs' injuries, these injuries could not be fairly traced to defendant's action. The same decisions could have been made and the plaintiffs injured, even if the defendant had not acted in the challenged manner.
In the present case, a decision similarly stands between defendant's action and the threat of injury. The choices and decisions of the councilmen themselves determine the possibility of their expulsion from office for failing to obey the contested law. If they choose to obey this validly enacted law, the possibility of their expulsion for failing to obey it is null. If they choose to disobey this law, then the possibility exists. Accordingly, the threatened injury cannot be fairly traced to the passage of the contested legislation, but only to the decisions and choices of the councilmen themselves. In this respect, the councilmen are not unlike other publicly-minded individuals who engage in civil disobedience because of their commitment to principle. Neither the councilmen, nor these other publicly-minded individuals have standing to challenge the constitutionality of a law because of the possibility that official sanctions might be imposed upon them if they decide to act upon those principles.
Even if this court believed that the injury which threatened the councilmen was fairly traceable to the defendant's action, still the councilmen must be found to lack standing. The deficiency of the councilmen's case is contained in their own description of it. The councilmen assert that if they refuse to obey or carry out the effect of the contested state law, they "face possible expulsion from office or other official sanction." Plaintiffs' Memorandum in Opposition to Motion to Dismiss, at 8 (emphasis added). The councilmen do not claim that the threat of their expulsion from office or other official sanction is real and immediate. They assert only that there is a possibility that they will be expelled *812 or sanctioned. This, however, is not enough.
The Supreme Court has stressed on numerous occasions that "the injury or threat of injury must be both `real and immediate', not `conjectural' or `hypothetical.'" O'Shea v. Littleton, supra; Golden v. Zwickler, supra; Allen v. Wright, supra; City of Los Angeles v. Lyons, supra. Here, the councilmen have only conjectured that they might be expelled from office or sanctioned. The presentation of a hypothetical in which the councilmen are expelled from office or sanctioned, however, does not meet the Supreme Court's standard for standing. Accordingly, this court must find that the injury threatened by the second horn of the councilmen's dilemma, being but a conjectured possibility, is insufficient to confer standing upon them.
For a dilemma to support standing, both horns of that dilemma must individually result in injury or threat of injury sufficient to support standing. In the present case, however, neither horn of the councilmen's dilemma has been found to result in injury or threat of injury sufficient to support standing. Nonetheless, even if neither horn of the councilmen's dilemma were defective, still the councilmen would lack standing. The councilmen have failed to assert a true dilemma.
As already noted, a dilemma exists when a plaintiff is confronted with only two courses of action, both of which result in undesired consequences. A true dilemma does not permit the plaintiff a third course of action by which he could avoid the threatened injuries. In the present case, however, a third course of action does exist: resignation with honor. See City of South Lake Tahoe v. California Tahoe Regional Planning Agency, supra (Sneed, J., concurring). By resigning with honor, the councilmen can steer between the scylla of violating their oath of office and the charybdis of refusing to recognize a validly enacted law. In this fashion, the councilmen could avoid the abstract and psychic injuries that can ensure when one transgresses the dictates of one's own conscience as well as the possibility of their expulsion from office or other official sanction together with the public opprobrium that often attaches to such sanctions.
The history of our nation is replete with examples of resignation with honor. Too well-known to require citation are those occasions when public officials of principle and honor have been required to act in a manner that they believed improper under the constitutional scheme of our government. Rather than undertake those acts, these individuals resigned. This court firmly believes that the same strength of character and commitment to public virtue found in those individuals serving our country at the highest levels of the federal government can also be found in the dedicated officials who serve the citizens of our land at the municipal level. Resignation with honor is an act of strength, not of cowardice, and provides a resolution to the otherwise irresolvable.
Order
For the foregoing reasons, the plaintiffs in the present action are found to lack standing to proceed before this court on their federal claim. Moreover, because no federal claim survives in this case, this court declines to consider plaintiffs' pendant state constitutional claim. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1965). Accordingly, defendant's Motion to Dismiss is granted. The case is dismissed as to all defendants.
So ordered.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-2454
No. 08-2986
___________
United States of America, *
*
Appellee, *
* Appeals from the United States
v. * District Court for the
* Western District of Missouri.
Joseph Pulliam, *
*
Appellant. *
___________
Submitted: January 16, 2009
Filed: May 28, 2009
___________
Before LOKEN, Chief Judge, WOLLMAN, and SHEPHERD, Circuit Judges.
___________
WOLLMAN, Circuit Judge.
A jury found Joseph Pulliam guilty of being a felon in possession of firearms
and ammunition, possession of methamphetamine, and possession of marijuana, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and 21 U.S.C. § 844(a). The district
court1 sentenced Pulliam to 180 months’ imprisonment on each count, to run
concurrently. Pulliam argues that the government withheld Brady material warranting
a new trial and that the district court improperly enhanced his sentence by finding that
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
a prior conviction for unlawful use of a weapon qualified as a “violent felony.” We
affirm.
I.
On November 22, 2006, Pulliam met with his parole officer and declined to
submit to a drug test because, as he explained, he knew it would test positive for
methamphetamine. After Pulliam left, his parole officer contacted Corporal Shannon
Crouch of the Missouri State Highway Patrol, informed him of Pulliam’s admitted
condition, and provided a description of Pulliam’s vehicle and direction of travel.
Later that day, Crouch initiated the traffic stop of a vehicle that matched the
description and which did not have an attached front license plate as required by
Missouri law.
Crouch asked the driver and sole occupant of the vehicle for his license, to
which the driver replied that he did not have one. Crouch then asked the driver to
accompany him to his patrol car, where the driver identified himself as Joseph
Pulliam. During further questioning, Pulliam revealed that he had just visited with his
parole officer and had refused to take a drug test because it would have been positive.
Crouch sought and received Pulliam’s consent to search his car. A search of the car
revealed apparent bottles of urine, a product designed to defeat drug tests, and a
prescription bottle containing residue that later tested positive for the presence of
methamphetamine. Crouch placed Pulliam under arrest and read him his Miranda
rights. Further questioning revealed that Pulliam had two firearms at home, which led
to a search of Pulliam’s residence, where weapons and controlled substances were
found.
The parole officer’s telephone conversation with Crouch was never mentioned
during the hearing on Pulliam’s motion to suppress or during Pulliam’s trial. On
cross-examination during the suppression hearing, Crouch stated that although he was
-2-
aware of Pulliam’s association with a local drug dealer, he did not know who the
driver of the vehicle was prior to the stop and did not know what type of vehicle
Pulliam drove. Crouch testified that he stopped the vehicle for failure to display a
front license plate. The government asserts that it told Pulliam’s counsel of the
telephone conversation between the parole officer and Crouch shortly after the
government learned of it, but Pulliam says that he did not learn of the communication
until his sentencing, when the Assistant United States Attorney mentioned it to the
district court.
The district court overruled Pulliam’s objection to the presentence report and
concluded that unlawful use of a weapon, as defined under Missouri state law is a
“violent felony” for purposes of the Armed Career Criminal Act as expressed in 18
U.S.C. § 924(e) and the United States Sentencing Guidelines § 4B1.4. This resulted
in a mandatory minimum sentence of fifteen years, which Pulliam received.
II.
Pulliam argues that the government failed to inform him of the conversation
between Crouch and Pulliam’s parole officer and that Crouch was untruthful when he
testified during the suppression hearing and at trial. A new trial is necessary, Pulliam
contends, because the government withheld impeachment evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150
(1972).
We review for an abuse of discretion the district court’s denial of a motion for
a new trial based on undisclosed Brady material. United States v. Ryan, 153 F.3d 708,
711 (8th Cir. 1998). “[T]he suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
Brady, 373 U.S. at 87 (1963). Impeachment evidence may be material under the
-3-
Brady doctrine, United States v. O’Connor, 64 F.3d 355, 358 (8th Cir. 1995) (per
curiam), as long as “there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.”
United States v. Bagley, 473 U.S. 667, 682 (1985).
Assuming that the government withheld this information from Pulliam until
after his trial, the most that Pulliam would have been able to show that Crouch did
know what type of vehicle Pulliam was driving and that the lack of a front license
plate was a pretext for Crouch’s actual reason for pulling him over. It is unlikely,
however, that this impeachment evidence would have affected the outcome of the trial.
The subjective intent of an officer is rarely relevant to the propriety of a traffic stop,
see Whren v. United States, 517 U.S. 806, 813 (1996), and therefore this information
would not have affected the court’s determination on the motion to suppress. Further,
had this information been disclosed at the suppression hearing, it is likely that
Crouch’s testimony at trial would have reflected his prior knowledge, leaving Pulliam
with nothing to impeach. Even if we assume that Crouch would have persisted in
giving apparently contradictory testimony regarding the telephone conversation, the
proposed impeachment would have had little or no impact. It is undisputed that
Crouch had an objectively lawful reason for stopping Pulliam’s vehicle and that the
events following the stop were lawful and proceeded with Pulliam’s consent. Thus,
the district court’s denial of Pulliam’s motion for a new trial reveals no abuse of
discretion.
III.
Pulliam argues that his prior conviction for unlawful use of a weapon in
violation of Mo. Rev. Stat. § 571.030.1(4), does not qualify as a violent felony for
purposes of 18 U.S.C. § 924(e), and therefore his sentence was unlawfully enhanced.
-4-
Section 924(e) imposes a mandatory minimum sentence of fifteen years when
a defendant has three prior convictions “for a violent felony or a serious drug
offense.” § 924(e)(1). A violent felony is a crime punishable by imprisonment for at
least one year and “(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or (ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.” § 924(e)(2)(B).
When determining whether a crime qualifies as a violent felony, we are
generally limited to examining only “the statutory definition, charging document,
written plea agreement, transcript of plea colloquy, and any explicit factual finding by
the trial judge to which the defendant assented,” rather than the underlying facts of the
crime committed. Shepard v. United States, 544 U.S. 13, 15 (2005). Under Missouri
law a person commits the crime of unlawful use of a weapon if he knowingly
“[e]xhibits, in the presence of one or more persons, any weapon readily capable of
lethal use in an angry or threatening manner.” Mo. Rev. Stat. § 571.030.1(4). The
charging document tracks the statutory language precisely, while noting that the
weapon involved was a Woodmaster 30.06 caliber rifle.
Missouri’s crime of unlawful use of a weapon meets the statutory definition of
violent felony in § 924(e)(2)(B)(i), because it involves the “use, attempted use, or
threatened use of physical force against the person of another.” United States v.
McDile, 914 F.2d 1059, 1061-62 (8th Cir. 1990) (per curiam). Pulliam’s reliance on
Begay v. United States is misplaced because Begay analyzes the circumstances under
which a previous crime falls under § 924(e)(2)(B)(ii). See Begay v. United States,
128 S. Ct. 1581, 1584 (2008) (noting that it is a given that the crime at issue “does not
fall within the scope of the Act’s clause (i) “violent felony” definition”). It goes
without saying that displaying an operational weapon before another in an angry or
threatening manner qualifies as threatened use of physical force against another
person.
-5-
The judgment is affirmed.
______________________________
-6-
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887 F.2d 624
Jimmy Dale PERRY, Plaintiff-Appellant,v.CHEVRON U.S.A., INC., Defendant-Third PartyPlaintiff-Appellee-Appellant-Cross Appellee,v.DUAL MARINE CO. OF TEXAS, and Highlands Insurance Co., ThirdParty Defendants-Appellees-Cross-Appellants.
No. 88-3773.
United States Court of Appeals,Fifth Circuit.
Nov. 6, 1989.
Eldon E. Fallon, Stevan C. Dittman, Kierr, Gainsburgh, Benjamin, Fallon, David & Ates, New Orleans, La., for plaintiff-appellant.
Kennedy J. Gilly, Jr., Milling, Benson, Woodward, Hillyer, Pierson & Miller, New Orleans, La., for Chevron.
Daniel A. Weeb, New Orleans, La., for Highlands.
James F. Holmes, New Orleans, La., for Dual Drilling.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before BROWN, REAVLEY and HIGGINBOTHAM, Circuit Judges.
REAVLEY, Circuit Judge:
1
Chevron U.S.A., Inc. (Chevron) executed a contract with Dual Marine Company of Texas (Dual) whereby Dual was to place a drilling rig on Chevron's offshore platform and drill a well, or wells, for oil. While drilling a well for Chevron on the outer Continental Shelf (OCS) off the coast of Louisiana,1 a Dual employee, Jimmy Perry, was seriously injured by equipment on the rig. Perry sued Chevron to recover damages because of Chevron's negligence or pursuant to Louisiana's strict liability statute. La.Civ.Code Ann. art. 2322 (West 1979). The district court granted Chevron's motion for a directed verdict on the issue of Chevron's negligence. That ruling was not appealed. Perry, however, has appealed the jury verdict in favor of Chevron on the strict liability issue. We affirm.
2
Chevron filed a third party action against Dual and its insurer, Highlands Insurance Company (Highlands), seeking indemnification as provided in the Chevron/Dual drilling contract. Chevron has appealed the district court's refusal to grant summary judgment for indemnity and insurance. Because Chevron has been absolved of liability, that matter of indemnification is moot. Chevron's appeal is dismissed.
3
The district court did award Chevron its attorney's fees and defense costs because of the indemnity agreement. Dual and Highlands appeal and we reverse.
I.
Background
4
On April 5, 1979, Chevron executed a drilling contract with Dual. As required by the contract, Dual's Rig No. 24 was transported to and installed on Chevron's platform located on the OCS off the Louisiana coast. On February 27, 1980, Dual began drilling operations. Those persons on the rig responsible for the actual drilling of the well (the drilling crew) were Dual employees. Also on the rig to oversee the operation was a Chevron employee known as the "Company man."
5
On June 17, 1986, Jimmy Perry and the drilling crew, of which he was a member, began their seven day hitch on Rig No. 24. From the time they began work on June 17, Perry and the crew had difficulties with a piece of equipment on the rig known as the cathead.
6
A cathead is a piece of equipment that is used to connect or disconnect joints of pipe as the pipe is lowered into or raised from the well hole. Roughnecks, such as Perry, position large wrenches, or tongs, onto a joint of pipe. These tongs are approximately four feet long and weigh approximately 300 pounds. To the end of the tongs a chain is connected. This chain runs into the cathead. The cathead is operated by a driller. Once the tongs are properly placed on the drill pipe by the roughnecks, the driller activates the cathead. The cathead pulls on the chain. The chain pulls on the tongs and the drill pipe is tightened, or loosened, as required. The driller then disengages the cathead causing the chain to relax. The roughnecks then reset the tongs on the pipe and the driller once again activates the cathead. This process is repeated until the pipe is fully connected, or disconnected.
7
The problem with the cathead on Rig No. 24 during the period from June 17 until June 20 was that when the driller disengaged the cathead, it would not allow the chain to relax; rather, the cathead caused the chain to remain taut. To continue drilling operations when the cathead failed to produce slack in the chain, the roughnecks would manhandle the tongs and chain to gain the slack necessary to reset the tongs. The dangers posed by the cathead were known by drilling crew members and although alternatives were available (Dual could have rented portable hydraulic tongs or possibly used a different cathead that was on the rig) Dual's drilling crew continued to manhandle the tongs and chain.
8
On June 20, 1986, Jimmy Perry was working on the rig floor as a roughneck. After Perry positioned the tongs on a joint of pipe, the driller engaged the cathead causing the chain to tighten. Upon disengaging the cathead, the chain remained taut because of the cathead. Perry stepped in to manhandle the tongs and chain. The chain running from the cathead to the tongs broke causing the tongs to swing around and strike Perry in the side and lower back. Following the accident, the cathead was disassembled. A spring in the cathead was discovered to be broken.
II.
A. Perry's appeal
9
Perry appealed the jury verdict on the issue of Chevron's strict liability. Louisiana Civil Code, Article 2322 provides that "[t]he owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction."
10
To prevail, Perry must demonstrate that Chevron owned a building containing a "ruin" that caused his injuries. Olsen v. Shell Oil Co., 365 So.2d 1285, 1289 (La.1978). A drilling platform is a building for purposes of Article 2322. Id. at 1290. Chevron indisputably was the owner of the platform. The jury found the cathead to be an appurtenance to the platform. This finding is not contested on appeal and is supported by substantial evidence. Because the cathead is an appurtenance to Chevron's platform, it is considered a part of the building and Chevron is liable for damages that are caused by its ruinous condition. See Hyde v. Chevron U.S.A., Inc., 697 F.2d 614, 620-21 (5th Cir.1983); Olsen, 365 So.2d at 1292. Proving a causal relationship between the ruin of the building and the injury suffered by the plaintiff is an essential element of a viable Article 2322 action. Hyde, 697 F.2d at 622. On this point, Perry failed in the trial court. The jury found that the cathead was not the legal cause of Perry's injuries. Perry claims that such a finding was against the great weight of evidence presented at trial and contrary to the law. We disagree.
11
In his brief, Perry alleges that "[e]xcept for the failure of the spring in the makeup cathead, Mr. Perry's injury and damage would not have occurred." This statement of causation addresses only one of the two branches of causation necessary to find a party responsible for an injury. As the Louisiana courts have noted,
12
[a] defendant's conduct is actionable under a theory of negligence or strict liability where it is both a cause in fact of the injury and a legal cause of the harm incurred. The cause in fact test requires that but for the defendant's conduct, the injuries would not have been sustained. The legal causation test requires that there be a substantial relationship between the conduct complained of and the harm incurred.
13
Taylor v. Mitcham, 499 So.2d 173, 175-76 (La.Ct.App.1986).
14
While the jury may have concluded that the cathead was the cause-in-fact of Perry's injuries, they did not find that the cathead was the legal cause of the injuries. The record indicates that the jury specifically considered the issue of legal cause. During their deliberations the jury requested that the court redefine the term. After the court provided the jury with a written definition,2 the jury found that the cathead was not the legal cause of Perry's injury.
15
The finding is supported by the evidence. The record indicates that the defective cathead was well-known by the Dual drilling crew, including Perry. Complaints had been made regarding its condition and suggestions made that it be repaired before an injury occurred. Alternative means of connecting and disconnecting joints of pipe were available to the Dual drilling crew.
16
Notwithstanding all of these factors, Dual continued to operate the rig using the defective cathead. To do so required Dual employees, such as Perry, to expose themselves to danger. At the time of his injury, Perry was about to manhandle the tongs and chain to gain the necessary slack in the chain. Whether Perry did so of his own accord or was directed to by his boss is unclear. Given these facts the jury could reasonably conclude that the legal cause of Perry's injuries was Dual's decision to continue drilling and/or Perry's actions. Because the jury's findings are based on substantial evidence and reasonable inferences, see Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc), we will not disturb them.
17
Perry argues that Hyde and Olsen should control the outcome of this dispute. In Hyde, the owner of an offshore platform was held liable for the damages sustained by an employee of a contractor working on the platform when a step in a stairway failed causing the employee to fall. In Olsen, an offshore platform owner was found liable for damages sustained by a contractor's employees when a water heater exploded on the platform.
18
These cases are distinguishable from the case now before the court because in both Hyde and Olsen the "ruin" was found to be the legal cause of the injury. Specifically, in Hyde, the court found that the defective step on the platform, which had been welded by a subcontractor, "directly produced or contributed substantially to produce the damage." Hyde, 697 F.2d at 622. In Olsen, the trial court found that the improper valve on the hot water heater, which had been installed by a contractor, was the proximate [legal] cause of the injurious explosion. Olsen, 365 So.2d at 1296 app. 1.
19
Hyde and Olsen are also distinguishable from the case now before us on a different, yet closely related, basis. Article 2322 imposes a non-delegable duty on the building owner to repair. Olsen, 365 So.2d at 1292. In both Hyde and Olsen, contractors were "repairing" the building (or an appurtenance thereof) and as a result of their negligent repair, injuries were suffered. Because the duty to repair is non-delegable, the building owners were found liable when the (defective) repair was found to be the legal cause of the damages suffered. In our case, the injury was not legally caused by Dual's assumption of Chevron's non-delegable duty to repair. As stated earlier, the jury did not find the building to be the legal cause of the injury at all.
20
This court has rejected strict liability claims when the actions of a party other than the defendant/building owner have been found to be the cause of the damages. See Boutwell v. Chevron U.S.A., Inc., 864 F.2d 406 (5th Cir.1989) (platform owner not liable for injury sustained when contractor's employee fell through hole on platform because contractor's negligence, rather than platform or hole, caused plaintiff's injury). We do so again in this case.
21
Perry also alleges that the trial court erred in charging the jury on plaintiff's contributory negligence and in permitting the jury to consider Dual's alleged negligence. Contrary to Perry's contention, it is proper to consider the victim's contributory fault in a strict liability claim brought under Louisiana law. See Reed v. Shell Offshore Inc., 872 F.2d 680, 683-84 (5th Cir.), modified, 879 F.2d 151 (5th Cir.1989); Hyde, 697 F.2d at 627-29; La.Civ.Code Ann. art. 2323 (West Supp.1989). It also is proper to consider Dual's fault. See Reed, 872 F.2d 680; Nance v. Gulf Oil Corp., 817 F.2d 1176, 1180-81 (5th Cir.1987); La.Civ.Code Ann. art. 2324 (West Supp.1989).
22
Assuming arguendo that the trial court did err in charging the jury on these matters, it did not result in reversible error. The jury was directed to answer six interrogatories in order. Interrogatories number 1 and number 2 dealt only with elements that are required to be proven to recover under Article 2322. After answering interrogatory number 2 in the negative, the jury went no further. The issue of Dual's and Perry's negligence did not appear until interrogatories number 3 and number 4, respectively. Neither the charges nor the interrogatories raise a "substantial doubt that the jury [was] 'fairly guided in its deliberations.' " Bode v. Pan Am. World Airways, 786 F.2d 669, 672 (5th Cir.1986) (quoting Mid-Texas Communications v. American Tel. & Tel. Co., 615 F.2d 1372, 1390 n. 16 (5th Cir.), cert. denied, 449 U.S. 912, 101 S.Ct. 286, 66 L.Ed.2d 140 (1980)).
23
Finally, Perry contends that it was error to deny his motion for a directed verdict on the issue of his negligence. In reviewing a trial court's decision to deny a motion for a directed verdict, we must determine whether reasonable minds could reach different conclusions on the evidence presented. Helene Curtis Indus. v. Pruitt, 385 F.2d 841, 850 (5th Cir.1967), cert. denied, 391 U.S. 913, 88 S.Ct. 1806, 20 L.Ed.2d 652 (1968). The evidence presented at trial does not clearly indicate whether Perry was contributorily negligent, but it does suggest such a possibility. Reasonable minds clearly could reach different conclusions on the matter. Therefore, it was not error for the trial court to deny Perry's motion for a directed verdict on the issue of Perry's contributory negligence.
B. Chevron's appeal
24
Chevron has appealed the district court's refusal to grant summary judgment in its favor on the indemnity issue. Because the district court's directed verdict in favor of Chevron on the issue of Chevron's negligence has not been appealed and because we affirm the jury verdict in favor of Chevron on the issue of strict liability, Chevron's right to indemnity and insurance is moot. This appeal is, therefore, dismissed.C. Dual's and Highlands' appeal
25
Dual and Highlands have appealed the trial court's decision to grant Chevron's motion for summary judgment on the matter of attorney's fees. The Dual/Chevron drilling contract contains the following indemnity provision:
26
Contractor [Dual] alone shall be responsible for and shall indemnify and hold Operator [Chevron] harmless from and against any damages and claims for ... injury to, impairment of health of, or death of third parties or of employees of Contractor, Operator or third parties, arising from Contractor's performance of its obligations under this agreement.
27
Based on this provision, the trial court found that Chevron is entitled to attorney's fees for defending this suit. We disagree.
28
In Meloy v. Conoco, Inc., 504 So.2d 833 (La.1987), the Louisiana Supreme Court noted that the Louisiana Oilfield Indemnity Act (Act),3 which prohibits certain defense and indemnity provisions in drilling contracts, only applies where there is "negligence or fault (strict liability) on the part of the indemnitee." Id. at 839. "The Act does not apply where the indemnitee is not negligent or at fault." Id. This much is clear; Louisiana law, and this court's application of it, on related matters is less so.
29
In an apparent departure from previous Louisiana law,4 the Meloy court held that the indemnitor's obligation for the cost of defense is to be decided after a "judicial finding that the indemnitee is liable or that the charges against it were baseless." Id. Therefore, if it is determined at trial that the indemnitee was not negligent or otherwise at fault (strict liability) "the Act does not prohibit indemnification for cost of defense." Id.
30
Chevron interprets Meloy as holding that once a party is found free of negligence or fault, it is entitled to recover its cost of defense and attorney's fees. Our reading of Meloy is that if a party is found free of negligence or fault, it may recover defense costs and attorney's fees. However, a judicial finding that the indemnitee was free from fault does not necessarily entitle the indemnitee to costs of defense. "Rather, it is the terms of the indemnity agreement which govern the obligations of the parties." Id.
31
While the indemnitee did recover defense costs in Meloy, we believe it was able to do so because the indemnity agreement provided that the contractor would defend against claims, demands and suits arising out of the contract at no cost to the Company. See id. at 836 n. 4. The obligation to defend, at no cost to the Company, may fairly be interpreted as meaning that the parties intended for the indemnitor to pay attorney's fees. Only by reading Meloy in this manner are we able to square its result with other Louisiana state court decisions.
32
In all Louisiana court decisions cited by the parties on appeal in this case, recovery of defense costs has been allowed only when the contract specifically so provides, or where a fair interpretation of the contract indicates that the cost of defense was contemplated as being covered by the agreement. See id. (contractor agreed to defend claim, demand or suit at no cost to Company); Maloney v. Oak Builders, Inc., 256 La. 85, 235 So.2d 386, 389-90 (1970) (party responsible for attorney's fees specified in contract); Wuertz v. Tobias, 512 So.2d 1209, 1211 (La.Ct.App.1987) (lease agreement specifically provided that lessee would indemnify lessor against all claims, including expenses and attorney's fees); Roberie v. Sinclair Refining Co., 252 So.2d 488, 496-97 (La.Ct.App.1971) (indemnitee unable to recover attorney's fees where contract only provided that contractor would hold harmless and indemnify Sinclair from all liabilities and claims for loss, damage or injury). Louisiana law is clear; in order to recover attorney's fees, the contract between the parties must so provide or it must be otherwise authorized by statute. Maloney, 235 So.2d at 390; Roberie, 252 So.2d at 497.
33
This court has recognized that under "Louisiana law, attorney's fees are not allowed unless specifically provided for by contract or by statute." Hobbs v. Teledyne Movible Offshore, Inc., 632 F.2d 1238, 1241 (5th Cir. Unit A 1980). There is nothing in the Dual/Chevron drilling contract which expressly, or by implication, would require Dual to reimburse Chevron for attorney's fees. We need not decide whether a contract imposing a duty to defend allows an indemnitee to recover defense costs. On that question there is a conflict in this circuit. Compare Stephens v. Chevron Oil Co., 517 F.2d 1123 (5th Cir.1975) (attorney's fees recoverable where agreement provided contractor would "defend and hold Company ... harmless," at 1124), with Ogea v. Loffland Bros. Co., 622 F.2d 186, 188 (5th Cir.1980) (attorney's fees not recoverable where agreement provided contractor would "defend and hold Company ... harmless" ).
34
Because the Dual/Chevron drilling contract does not impose on Dual a duty to defend or to reimburse Chevron for its attorney's fees or costs, Chevron is not entitled to be indemnified for its costs of defense.
35
The judgment of the district court is modified to eliminate Chevron's recovery from Dual and Highlands of its attorney's fees, and as modified, the judgment is affirmed.
36
MODIFIED and AFFIRMED.
1
Accordingly, the law of Louisiana is to be applied in resolving the disputes in this case. See 43 U.S.C. Sec. 1333(a)(2)(A)
2
The following definition of legal cause was provided to the jury at their request during deliberations
There must be a causal relation between the defect and the victim's injury. This causal relation is essentially a factual concept that requires a determination of whether the defect was a substantial factor contributing to the plaintiff's injury.
Fault, whether a defect or negligence, may be the legal cause of injury, whenever it appears from the evidence in the case that the fault played a substantial part in bringing about or actually causing the injury; and that the injury was either a direct result or a reasonably probable consequence of the fault.
This does not mean that the law recognizes only one legal cause of injury, consisting of only one factor or thing or the conduct of only one person. On the contrary, many factors or things, or the conduct of two or more persons may operate at the same time, either independently or together to cause injury or damage, and in such case each may be a legal cause.
3
La.Rev.Stat.Ann. Sec. 9:2780 (West Supp.1989)
4
Prior to Meloy, Louisiana law held that the "pleading of the suit, not the outcome of the case, ... determine[s] the obligation to pay defense costs." Meloy, 504 So.2d at 840 (Watson, J., dissenting)
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698 F.Supp.2d 397 (2010)
Carlos CHALUISAN, on behalf of himself and all others similarly situated, Plaintiffs,
v.
SIMSMETAL EAST LLC, Mark Santiago, and John Does 1-10, Defendants.
No. 09 Civ. 1182(PGG).
United States District Court, S.D. New York.
March 23, 2010.
*399 David Stein, Coleman Law Firm, Clifton, NJ, Bradley Ian Berger, Berger & Associates Attorneys, Michael Steven Samuel, Samuel & Stein, New York, NY, for Plaintiff.
Cheryl Marie Stanton, Cheoma Smith, David A. Copus, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Morristown, NJ, for Defendants.
MEMORANDUM OPINION & ORDER
PAUL G. GARDEPHE, District Judge:
In this putative class action, Plaintiff Carlos Chaluisan asserts claims under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and the New York Labor Law, § 650 et seq., on behalf of himself and all others similarly situated, for failure to pay overtime compensation. Plaintiff also asserts individual state law claims for breach of contract and unjust enrichment relating to Defendants' alleged failure to pay him vacation pay and a non-discretionary bonus.
Defendants have moved to dismiss the individual claims pursuant to Fed.R.Civ.P. 12(b)(1), contending that this Court should not exercise supplemental jurisdiction over them, because they are not sufficiently related to Plaintiff's FLSA claim for overtime pay. Defendants have also moved, in the alternative, to dismiss Plaintiff's claim for unjust enrichment pursuant to Fed. R.Civ.P. 12(b)(6), arguing that the FLSA preempts this claim.
After the motion to dismiss was filed, Plaintiff stipulated to the dismissal of the breach of contract and unjust enrichment claims as against Mark Santiago. (Pltf. Br. 5). Accordingly, those claims will be dismissed. For the reasons set forth below, Defendants' motion will otherwise be DENIED.
BACKGROUND
Plaintiff Carlos Chaluisan was employed by Defendant Simsmetal East LLC from approximately January 19, 2004, until September 10, 2008, when he was terminated. (Cmplt. ¶ 25) Plaintiff began his employment with Simsmetal as a laborer, but was promoted to supervisor on June 1, 2006. (Id. ¶ 27)
Defendant Simsmetal owns and operates scrap processing and recycling facilities in New York, and Defendant Mark Santiago is a principal of the Company. (Id. ¶¶ 24, 10)
The events that form the basis for Plaintiff's complaint took place while Plaintiff served as a supervisor. Plaintiff alleges that during this periodfrom June 1, 2006, until his termination on September 10, 2008Defendants failed to pay him overtime wages despite the fact that he routinely worked 55 to 60 hours per week. (Id. ¶ 30) Plaintiff alleges that during his first year as a supervisor, Defendant Santiago invariably recorded that Plaintiff had worked 40 hours during a five-day work week and 48 hours when he worked six days. (Id. ¶ 31) During his second year as a supervisor, Plaintiff's hours were recorded by computer, but Santiago nonetheless crossed out Plaintiff's actual hours and recorded his hours as "40" or "48" depending on whether Plaintiff had worked five or six days during that week. (Id. ¶ 32)
While referred to as a "salaried" employee, Plaintiff received additional pay *400 when he worked on Saturdays, but only in the form of "straight" pay rather than time and a half. (Id. ¶ 34) As a laborer, Plaintiff had received overtime pay for work on Saturday, but once he was promoted to a supervisor position, he no longer received overtime pay. (Id. ¶ 33)
Plaintiff contends that he and others similarly situated were placed in supervisor positions that required little skill and no capital investment, and that they were given duties and responsibilities that did not include bona fide executive functions such as the power to hire or fire, or to set shifts, hours or pay for those supervised. (Id. ¶¶ 29, 38) Accordingly, Plaintiff argues that he was entitled to overtime pay despite his supervisor title, and that Defendants' failure to pay him and others similarly situated overtime compensation violated the provisions of the FLSA, 29 U.S.C. § 201 et seq. and the New York Labor Law, § 650 et seq. (Counts I and II). (Id. ¶¶ 42-53) Defendants argue, however, that Plaintiff became an "exempt" employee under the FLSA and the Labor Law when he was promoted to the supervisor position. (Ans. ¶ 33)
In addition to his FLSA and Labor Law claims, the Complaint asserts individual claims for breach of contract and unjust enrichment related to Defendants' refusal to pay (1) vested vacation pay; and (2) an automatic, non-discretionary 8% bonus that Plaintiff had been scheduled to receive at the time of his termination (Count III and IV). (Id. ¶¶ 36, 37, 54-63)
DISCUSSION
I. THIS COURT HAS SUPPLEMENTAL JURISDICTION OVER PLAINTIFF'S STATE LAW CLAIMS
A. The Scope of Supplemental Jurisdiction
Defendants argue that Plaintiff's state law claims must be dismissed because they are not sufficiently related to his FLSA claims to justify this Court's exercise of supplemental jurisdiction.
When a defendant moves to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, plaintiff bears the burden of showing that subject matter jurisdiction exists. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994). "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000).
Title 28, U.S.C. § 1367 defines a federal court's supplemental jurisdiction as follows:
[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.
28 U.S.C. § 1367(a). "[D]isputes are part of the `same case or controversy' within § 1367 when they `derive from a common nucleus of operative fact.'" Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 335 (2d Cir.2006) (quoting Promisel v. First Am. Artificial Flowers Inc., 943 F.2d 251, 254 (2d Cir.1991)); see also In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab., 613 F.Supp.2d 437, 440-41 (S.D.N.Y.2009) (quoting Achtman, 464 F.3d at 335) ("Federal and state claims form `one case or controversy,' and thus satisfy section 1367(a), if they `derive from a common nucleus of operative facts or when both claims would normally be expected to be tried in a single judicial proceeding.'").
*401 Supplemental jurisdiction has thus been exercised "`where the facts underlying the federal and state claims substantially overlap or where presentation of the federal claim necessarily brings the facts underlying the state claim before the court.'" McConnell v. Costigan, No. 00 Civ. 4598(SAS), 2000 WL 1716273, at *4 (S.D.N.Y. Nov. 16, 2000) (alterations omitted) (quoting Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 704 (2d Cir.2000)). Conversely, supplemental jurisdiction should not be exercised "when the federal and state claims rest[ ] on essentially unrelated facts." Lyndonville Sav. Bank & Trust Co., 211 F.3d at 704.
Under Section 1367(c), district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c). "[W]here at least one of the subsection 1367(c) factors is applicable, a district court should not decline to exercise supplemental jurisdiction unless it also determines that doing so would not promote the values articulated in [United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) ]: economy, convenience, fairness, and comity." Jones v. Ford Motor Credit Co., 358 F.3d 205, 214 (2d Cir.2004).
B. Plaintiff's State Common Law and FLSA Claims Arise From a Common Nucleus of Operative Fact
Defendants argue that Plaintiff's breach of contract and unjust enrichment claims are wholly unrelated to his FLSA claim for overtime pay and do not derive from a common nucleus of operative fact. (Def. Br. 1) According to Defendants, "[t]he facts relevant to [Plaintiff's] claim for unpaid overtime are entirely unrelated to the facts relevant to his claim that he was owed a bonus and that he was not paid for his vacation time after his termination." (Def. Br. 5) Defendants argue that the only connection between Plaintiff's common law claims and his FLSA claim is the employment relationship between himself and Defendants, and that this relationship "is insufficient to render the claims related enough for this Court to exercise supplemental jurisdiction. . . ." (Def. Br. 4)
Plaintiff argues, however, that his common law claims share a common nucleus of operative fact with the FLSA claim because "all claims in the complaint relate to Defendants' compensation practices" and the "same evidencepersonnel files, time sheets, pay stubs, terms of employment, etc.will apply in each case, and the same witnessesplaintiff, his supervisors, perhaps his co-workerswill likely be deposed or called to testify in each case." (Pltf. Br. 2)
Resolution of Defendants' argument that Plaintiff was "employed in a bona fide executive . . . capacity" under 29 U.S.C. § 213(a) (1) and 29 C.F.R. § 541.1and therefore was an exempt employee for overtime compensation purposes[1]will require a fact intensive inquiry concerning Plaintiff's duties and compensation. See *402 Connolly v. Smugglers' Notch Mgmt. Co., No. 09 Civ. 131(WKS), 2009 WL 3734123, at *5, 2009 U.S. Dist. LEXIS 104991, at *11 (D.Vt. Nov. 5, 2009) ("[T]o demonstrate that [plaintiff] was exempt from overtime . . . is determined through a two-pronged test of the employee's salary and duties . . . [which] will necessitate inquiry into the legal and factual issues of plaintiff's duties and compensation. . . ." (citing Reich v. Waldbaum, Inc., 52 F.3d 35, 39 (2d Cir.1995) ("The regulations pertinent to the resolution of this issue . . . specify a `duties' and a `salary' test, both of which must be satisfied to qualify for the `bona fide executive' exemption."))).
Defendants will be required to demonstrate, inter alia, that Plaintiff's "primary duty is management of the enterprise"; that he "regularly direct[ed] the work of two or more other employees"; that he had the authority to hire or fire, or that his suggestions in this regard were "given particular weight"; and that he was "[c]ompensated on a salary basis at a rate of not less than $455 per week." 29 C.F.R. § 541.100; see also Reich, 52 F.3d at 38.
With respect to whether Plaintiff was compensated on a salary basis, Defendants will have to demonstrate that
[Plaintiff] regularly receive[d] each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of [his] compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. . . . [A]n exempt employee must receive the full salary for any week in which the employee performs any work without regard to the number of days or hours worked. Exempt employees need not be paid for any workweek in which they perform no work.
29 C.F.R. § 541.602(a).
Resolution of Plaintiff's FLSA claim will thus require a searching examination of the circumstances of his employment, including his duties and managerial responsibilities, and his compensation. Documentary evidence and testimony from Plaintiff's co-workers and supervisors regarding these matters will be necessary.
Plaintiff's state common law claims concerning Defendants' alleged failure to pay him his vested vacation pay and bonus will require consideration of similar evidence. The terms of Plaintiff's employment agreement with Defendants will have to be analyzed. Moreover, because Plaintiff's right to vested vacation pay and bonus appears to be related to the number of days/hours he worked,[2] the number of vacation days he was entitled to, and the number of vacation days he used before his termination, consideration of these claims will require examination of the same employment records called for by his FLSA claim. See Connolly, 2009 WL 3734123, at *4-5, 2009 U.S. Dist. LEXIS 104991, at *11; Patel v. Baluchi's Indian Rest., No. 08 Civ. 9985(RJS), 2009 WL 2358620, at *6, 2009 U.S. Dist. LEXIS 66512, at *19 (S.D.N.Y. July 30, 2009) ("[I]n order to evaluate [plaintiff's] FLSA claims, the parties will necessarily partake in discovery determining [plaintiff's] job title, hours, and wages.").
*403 Resolution of Plaintiff's state and federal claims is also likely to require testimony from the same witnesses. Defendants' managers will likely be called to testify concerning their refusal to pay Plaintiff his vested vacation pay and bonus. Supervisors and co-workers will likely be examined concerning the terms of Plaintiff's employment agreement. With respect to Plaintiff's FLSA claim, these same witnesses will undoubtedly be called to testify concerning the nature of Plaintiff's duties and how he was compensated.
The fact that Plaintiff's FLSA and state common law claims will involve similar witnesses and evidence provides a strong rationale for exercising supplemental jurisdiction over Plaintiff's state common law claims. See, e.g., Connolly, 2009 WL 3734123, at *4, 2009 U.S. Dist. LEXIS 104991, at *10 (holding that court had supplemental jurisdiction over Plaintiff's state law claims because "adjudication of the state law claims is apt to `require many of the same witnesses, much of the same evidence, and determination of many of the same facts'") (quoting Luongo v. Nationwide Mut. Ins. Co., No. 95 Civ. 3190(MBM), 1996 WL 445365, at *5 (S.D.N.Y. Aug. 7, 1996)); Rivera v. Ndola Pharm. Corp., 497 F.Supp.2d 381, 393 (E.D.N.Y.2007) ("Typically, supplemental jurisdiction is appropriate for claims during the employment relationship because those claims arise from the same underlying factual basis."). When similar evidence and witnesses will be required to adjudicate state and federal claims, principles of judicial economy dictate that "trying the state law claims in state court and the FLSA claim in federal court would require duplication of efforts and . . . would be a waste of judicial resources. . . ." Connolly, 2009 WL 3734123, at *5, 2009 U.S. Dist. LEXIS 104991, at *13-14 (quotation omitted).
Recent decisions from district courts in this Circuit support Plaintiff's argument that this Court should exercise supplemental jurisdiction over his state common law claims.
In Patel v. Baluchi's Indian Rest., No. 08 Civ. 9985(RJS), 2009 WL 2358620, 2009 U.S. Dist. LEXIS 66512 (S.D.N.Y. July 30, 2009), plaintiffs in a putative class action asserted, inter alia, claims for overtime compensation under the FLSA, and claims for breach of contract and unjust enrichment under state law. Id. at *1, 2009 U.S. Dist. LEXIS 66512 at *3. Defendants moved to dismiss plaintiffs' state common law claims, arguing that they fell outside the court's proper exercise of supplemental jurisdiction. Id. at *4, *6, 2009 U.S. Dist. LEXIS 66512 at *12, *18. The court denied the motion, however, finding that the FLSA and state common law claims derived from a common nucleus of operative fact:
The Court finds that . . . supplemental jurisdiction under 28 U.S.C. § 1367(a) exists. Plaintiffs allege, inter alia that, "[i]n 2004, Defendant Aggarwal provided Plaintiff Patel with a letter of employment promising him a managerial position at Baluchi's with a salary of $44,000, based on a 40 hour work week, 52 weeks per year." (AC P 110.) Plaintiffs further allege that, in breach of this contract, Plaintiff Patel worked seventy-two hours per week at a "flat rate of $ 450 per week until 2006, and a flat rate of $ 600 per week from 2006 to 2008," and that "in reality, Plaintiff Patel had no managerial authority." (Id. PP 111-12.) Accordingly, in order to evaluate Patel's FLSA claims, the parties will necessarily partake in discovery determining Patel's job title, hours, and wages. This evidence is similarly at the heart of Patel's breach of contract claim, which alleges that Patel worked more hours for less money than provided for by the *404 terms of his contract with Defendants. In short, Plaintiffs' federal claims "`necessarily bring [ ] the facts underlying the state claim before the court.'"
Patel, 2009 WL 2358620, at *6, 2009 U.S. Dist. LEXIS 66512, at *19-20 (quoting McConnell, 2000 WL 1716273, at *4 (quoting Lyndonville Sav. Bank & Trust Co., 211 F.3d at 704)). Here, as in Patel, analysis of Plaintiff's FLSA claim will require a thorough analysis of the terms and conditions of his employment, including all aspects of his compensation package. Analysis of the hours and days Plaintiff worked is integral to both sets of claims, because overtime pay, vacation pay, and bonus are all commonly dependent on the number of hours or days worked.
Similarly, in Connolly v. Smugglers' Notch Mgmt., plaintiff asserted a claim under the FLSA for overtime pay and state law claims for breach of contract and violation of the Vermont Fair Employment Practices Act, Vt. Stat. Ann. Tit. 21, §§ 495-496. See Connolly, 2009 WL 3734123, at *1, 2009 U.S. Dist. LEXIS 104991, at *1-2. The court determined that exercising supplemental jurisdiction over plaintiff's state law claims was appropriate, because adjudication of the FLSA and state law claims would require similar witnesses and evidence and "necessitate inquiry into legal and factual issues of plaintiff's duties and compensation." Connolly, 2009 WL 3734123, at *4-5, 2009 U.S. Dist. LEXIS 104991, at *10-*11.
Defendants rely on three casesLyon v. Whisman, 45 F.3d 758 (3d Cir.1995); Rivera v. Ndola Pharmacy Corp., 497 F.Supp.2d 381 (E.D.N.Y.2007); and Torres v. Gristede's Operating Corp., 628 F.Supp.2d 447 (S.D.N.Y.2008)in arguing that this Court should not exercise supplemental jurisdiction over Plaintiff's state common law claims. None of these cases is on point, however.
In Lyon, plaintiff sued an accounting firm and its president claiming that they had failed to pay her overtime wages as required by the FLSA. Plaintiff also brought state law contract and tort claims relating to defendants' failure to pay her a bonus on time and in full. In the tort claim, Plaintiff alleged that defendants had threatened to withhold Plaintiff's vested bonus if she left their employment. Lyon, 45 F.3d at 759. Plaintiff prevailed at trial, but the Third Circuit reversed, finding that the state law claims and FLSA claim were not derived from a common nucleus of operative fact, and that the district court had erred in exercising supplemental jurisdiction over the state law claims. Id. at 763. The court determined that "the only link between [plaintiff's] FLSA and state law claims is the general employer-employee relationship between the parties," and that the exercise of supplemental jurisdiction under these circumstances was improper:
[Plaintiff's] FLSA claim involved very narrow, well-defined factual issues about hours worked during particular weeks [while] [t]he facts relevant to her state law contract and tort claims, which involved [defendant's] alleged underpayment of a bonus and its refusal to pay the bonus if [plaintiff] started looking for another job, were quite distinct.
Id. at 762.
Lyon is distinguishable from the instant case on several grounds. As an initial matter, Lyon's FLSA claim did not require any examination of Lyon's duties or the nature of her compensation. As the Third Circuit stated, all that was necessary was to determine how many "hours [Lyon] had worked during particular weeks." Id. There was no issue as to whether Lyon was an exempt employee. Here, in contrast, the complaint pleads that Defendants stopped paying Plaintiff overtime *405 wages when he was promoted to supervisor (Cmplt., ¶¶ 33-35), and it is apparent as discussed abovethat a thorough analysis of Plaintiff's duties and compensation package will be necessary to resolve his FLSA claims. No such analysis was necessary in Lyon. Because such an analysis will be necessary here, there is far more evidentiary overlap between Plaintiff's FLSA claims and his state common law claims, and it can be fairly said that "presentation of the federal claim [will] necessarily bring[ ] the facts underlying the state claim[s] before the court." McConnell, 2000 WL 1716273, at *4.
Lyon's tort and contract claims also raised issues far afield from her FLSA claim. For example, Lyon's claims that defendants (1) committed tortious conduct in threatening to withhold her bonus if she did not remain in their employ; and (2) paid her less than the bonus they promised, required evidence that was completely unrelated to the sole issue raised by her FLSA claimi.e., the number of hours she worked in a given week.
Defendants' reliance on Rivera v. Ndola Pharmacy Corp., 497 F.Supp.2d 381 (E.D.N.Y.2007), is likewise misplaced. In Rivera, the plaintiff worked in defendants' pharmacy. She alleged that defendants violated the FLSA by failing to pay her overtime, and had also sexually harassed her, in violation of the New York State and New York City human rights laws. In connection with the sexual harassment, Plaintiff also asserted common law claims of battery, intentional and negligent infliction of emotional distress, and negligent retention and supervision. Defendants argued that all of the state law claims should be dismissed because they did "not share a common nucleus of facts with the federal overtime claim." Rivera, 497 F.Supp.2d at 392.
The court, however, decided to exercise supplemental jurisdiction over the sexual harassment claims against one defendant, because he had agreed to "increase[ ] [plaintiff's] wages as a result of her agreement to be his `friend' and accompany him to breakfast and lunch." Id. at 393. After this defendant learned that the plaintiff had a boyfriend, he reduced her wages and made her a part-time employee. Id.
Based on this record, the court concluded that the exercise of supplemental jurisdiction was appropriate:
Plaintiff's allegations of sexual harassment against N. Patel are closely related to her wages during her employment, and as such, arise from a "common nucleus of operative fact" as her FLSA overtime claim.
Id. In reaching this result, the court noted that "[t]ypically supplemental jurisdiction is appropriate for claims during the employment relationship because those claims arise from the same underlying factual period." Id. at 393 (citing Treglia v. Town of Manlius, 313 F.3d 713, 723 (2d Cir.2002) (exercise of supplemental jurisdiction was proper where plaintiff's state and federal claims arose "out of approximately the same set of events"); Promisel v. First Am. Artificial Flowers, 943 F.2d 251, 254 (2d Cir.1991) (exercising supplemental jurisdiction where plaintiff's federal ADEA claim and state law claims were based on plaintiff's termination)).
The Rivera court dismissed plaintiff's remaining sexual harassment-related state law claims, however, because they were based on conduct that took place "after plaintiff stopped working overtime and involve both different rights and underlying facts than plaintiff's overtime claims." Id. at 395. The court determined that exercising supplemental jurisdiction over these claims was not appropriate, given that "the only factual link between plaintiff's claims. . . and the FLSA overtime claim is that the underlying events occurred during the *406 course of plaintiff's employment by [defendants]." Rivera, 497 F.Supp.2d at 393.
Nothing in Rivera suggests that dismissal would be appropriate here. Indeed, to the extent that Rivera acknowledges that supplemental jurisdiction should generally be exercised over state law claims that arise from the same time period as an FLSA claim, Rivera supports Plaintiff's position.[3] In any event, for the reasons stated above, Plaintiff's state common law claims and FLSA claim are much more intertwined than the FLSA claim and dismissed sexual harassment claims at issue in Rivera.
Finally, Torres v. Gristede's Operating Corp., 628 F.Supp.2d 447 (S.D.N.Y.2008), is inapposite. In Torres, plaintiffs sued for overtime wages under the FLSA and defendant brought permissive faithless-servant counterclaims under state law. The counterclaims were based on plaintiffs' "purported misconduct in the course of their employment . . . [including that one plaintiff had] sexually harassed coworkers and falsified information on his employment application [and that another plaintiff had] misuse[d] . . . a customer credit card." Id. at 466. The court refused to exercise supplemental jurisdiction over these permissive counterclaims because "none of the events alleged in [defendant's] state law faithless servant claims are relevant to Plaintiffs' overtime claims." Id. at 468. The court determined that "the only possible connection between the parties' claims is that they both arise out of Individual Plaintiffs' employment," and ruled that the employment relationship alone was not sufficient to demonstrate that the FLSA claims and the faithless-servant claims arose from a common nucleus of operative fact. Id.
Torres is easily distinguished from the instant action. The state law counterclaims in Torres related to distinct incidents involving individual plaintiffs that were completely unrelated to defendant's compensation practices. See id. ("[N]one of the events alleged in [Defendant's] state law . . . claims are relevant to Plaintiffs' overtime claims."). Here, Plaintiff's state law claims will require reference to many of the same witnesses and much of the same documentary evidence as the FLSA claim.
Because Plaintiff's state common law claims and FLSA claim are "`derive[d] from a common nucleus of operative fact,'" Achtman, 464 F.3d at 335 (quoting Promisel, 943 F.2d at 254), and because none of the 28 U.S.C. § 1367(c) factors are present, this Court will exercise supplemental jurisdiction over Plaintiff's state common law claims pursuant to 28 U.S.C. § 1367.
II. PLAINTIFF'S UNJUST ENRICHMENT CLAIM WILL NOT BE DISMISSED AT THIS TIME
Defendants argue, in the alternative, that "to the extent that Plaintiff bases his unjust enrichment claim on unpaid overtime, the FLSA preempts such claim." (Def. Br. 6)[4] Plaintiff's opposition brief does not address this issue.
There is case law support for the proposition that while a plaintiff cannot obtain a double recovery under the FLSA and state unjust enrichment law, there is *407 no bar to pleading both claims simultaneously. In Davis v. Lenox Hill Hosp., No. 03 Civ. 3746(DLC), 2004 WL 1926087, 2004 U.S. Dist. LEXIS 17284 (S.D.N.Y. Aug. 31, 2004), for example, defendants moved to dismiss the plaintiff's state law unjust enrichment claim, arguing that the "unjust enrichment claim is preempted by the FLSA." Davis, 2004 WL 1926087, at *6, 2004 U.S. Dist. LEXIS 17284, at *25. The court denied the motion:
The defendants mistakenly contend that Davis cannot simultaneously assert claims for unjust enrichment and violation of the FLSA. . . . Insofar as the defendants' argument is about overtime compensation, they correctly note that Davis cannot recover under both federal and state law for the enforcement of the same right. At the pleading stage, however, parties are entitled to plead causes of action under both state and federal law to vindicate the same right unless the federal law preempts the state claim. The FLSA does not preempt state law in the area of overtime compensation. See Overnite Transp. Co. v. Tianti, 926 F.2d 220, 222 (2d Cir.1991) (citing 29 U.S.C. § 218(a)). If Davis prevails at trial on both her FLSA and unjust enrichment claim, she will be limited to the remedy provided by the FLSA for the violation of its overtime compensation requirements. At the pleading stage, however, she is free to pursue her claim under both state and federal law.
Davis, 2004 WL 1926087, at *7, 2004 U.S. Dist. LEXIS 17284, at *27-28.
In rejecting the argument that the FLSA preempts state law unjust enrichment claims, the Davis court relied on Overnite Transp. Co. v. Tianti, 926 F.2d 220 (2d Cir.1991), in which the Second Circuit held that states are not preempted from regulating overtime wages:
Congress' intent to allow state regulation to coexist with the federal scheme can be found in § 18(a) of the FLSA, which explicitly permits states to mandate greater overtime benefits. See 29 U.S.C. § 218(a). We also note that every Circuit that has considered the issue has reached the same conclusionstate overtime wage law is not preempted by. . . the FLSA.
Overnite Transportation Co., 926 F.2d at 222 (citations omitted).
Courts in this Circuit routinely rely on Overnite Transportation for the proposition that the FLSA does not preempt state regulation of overtime wages. See Cohen v. Gerson Lehrman Group, Inc., 686 F.Supp.2d 317, 323-24 (S.D.N.Y.2010) ("Overnite Transportation continues to be followed by courts in this District confronting FLSA preemption arguments. . . . [Defendant] sets forth no basis to depart from Overnite Transportation and its progeny."); Segal v. Varonis Systems, Inc., 601 F.Supp.2d 551, 554 (S.D.N.Y.2009) ("`It is settled in the Second Circuit that FLSA does not preempt state wage and hour laws.'" (quoting Guzman v. VLM Inc., No. 07 Civ. 1126(JG), 2008 WL 597186, at *10 (S.D.N.Y. Mar. 2, 2008))).
A decision that the FLSA does not preempt state regulation of overtime wages does not necessarily indicate, however, that state common law claims are not preempted, and the Second Circuit has not directly addressed that issue. Patel, 2009 WL 2358620, at *8, 2009 U.S. Dist. LEXIS 66512, at *25; Lopez, 2008 WL 203038, at *5 ("The Second Circuit Court of Appeals has not indicated whether state common-law claims such as those being asserted here are preempted by the FLSA.")
In Anderson v. Sara Lee Corp., 508 F.3d 181, 194 (4th Cir.2007), however, the Fourth Circuit concluded that the FLSA preempted the state law contract, negligence, and fraud claims alleged in that *408 case, which were based solely on alleged FLSA violations[5]:
we . . . hold today that Congress prescribed exclusive remedies in the FLSA for violations of its mandates. . . . Because the FLSA's enforcement scheme is an exclusive one, we further conclude that the Class Members' FLSA-based contract, negligence and fraud claims are precluded under a theory of obstacle preemption.
Anderson, 508 F.3d at 194 (citations omitted) (emphasis added). At least one court in this Circuit has followed Anderson. See Lopez v. Flight Serv. & Sys., Inc., No. 07 Civ. 6186(CJS), 2008 WL 203028, at *7 (W.D.N.Y. Jan. 23, 2008) (granting motion to dismiss unjust enrichment and other state law claims because they "pertain to Defendants' alleged failure to pay Plaintiffs in accordance with the FLSA . . . [and] are preempted by the FLSA").
Here, it is not clear from the Complaint (or from Plaintiff's opposition brief) whether Plaintiff's unjust enrichment claim is based solely on an alleged FLSA violation, or whether it has an independent basis. In pertinent part, the unjust enrichment claim (Count IV of the Complaint) reads as follows:
60. Plaintiff conferred the benefit of his services on the Defendants with the understanding and expectation that he would be compensated for their [sic] services.
61. Defendants have intentionally failed and refused to fully compensate Plaintiff for his services.
62. As a result, Defendants have been unjustly enriched at the expense of Plaintiff.
63. As a direct and proximate result, Plaintiff has been damaged and is entitled to recover from Defendants the amount of his unpaid compensation.
(Cmplt., ¶¶ 60-63)[6]
Given this uncertainty, and the unsettled nature of the law,[7]see Chen v. Street Beat *409 Sportswear, Inc., 364 F.Supp.2d 269, 292 (E.D.N.Y.2005) ("The law is unsettled as to whether the FLSA preempts state common law claims."), this Court will not dismiss Plaintiff's unjust enrichment claim at this time. Discovery will reveal whether this claim seeks overtime compensation and whether it is duplicative of Plaintiff's FLSA claim for overtime compensation. If so, Defendants will be free to renew their motion at summary judgment. See, e.g., Roble v. Celestica Corp., Civil No. 06-2934 (JRT/FLN), 2006 WL 3858396, at *3, 2006 U.S. Dist. LEXIS 94067, at *8 (D.Minn. Dec. 29, 2006) (denying motion to dismiss breach of contract, unjust enrichment, and quantum meruit claims on FLSA preemption grounds; "[w]hile additional discovery may reveal that plaintiffs' common law claims are in fact duplicative of the statutory claims, the Court cannot conclude at this stage of the proceedings that the underlying common law claims are preempted by the FLSA").
CONCLUSION
Counts III and IV of the Complaint are dismissed as against Defendant Mark Santiago. Defendants' motion to dismiss is otherwise DENIED. The Clerk of the Court is directed to terminate the motion. [Docket No. 6]
SO ORDERED.
NOTES
[1] FLSA implementing regulations provide for "an exemption from the Act's minimum wage and overtime requirements for any employee employed in a bona fide executive, administrative, or professional capacity. . . ." 29 C.F.R. § 541.0(a).
[2] The Complaint alleges that Defendants "refused to pay [Plaintiff] for his vested vacation time he had earned." (Cmplt. ¶ 36) It is reasonable to infer that Plaintiff's alleged right to vacation pay had vested as a result of the hours/days he had worked prior to his termination. Similarly, Plaintiff alleges that Defendants refused to pay him "an automatic, non-discretionary 8% bonus" that he was scheduled to receive from defendants at the time of his termination. Id. at ¶ 37. Once again, qualification for the bonus appears to have been based on Plaintiff's mere employment by Defendants, rather than on the attainment of a goal unrelated to hours or days worked.
[3] Defendants argue that Plaintiff's state law claims are temporally distinct because Plaintiff was only refused his bonus and vacation pay "after his employment ended." (Def. Br. at 4) This argument is unavailing. Plaintiff alleges that the bonus and vested vacation compensation were promised to him during his employment and that his right to this compensation accrued during his employment. (Cmplt. ¶¶ 36-37, 55)
[4] Defendants do not contend that the FLSA preempts Plaintiff's vacation pay and bonus claims. (Def. Br. 6 n. 2)
[5] The Court noted that plaintiffs "do not contend. . . that any North Carolina law entitles them to unpaid wages. Rather . . . they rely on the FLSA for their rights, and they invoke state law only as the source of remedies for the alleged FLSA violations." Anderson, 508 F.3d at 193.
[6] It is likewise not apparent from the Complaint whether Plaintiff's unjust enrichment claim is based solely on his vacation pay and bonus claimswhich Defendants do not challenge on this part of their motionor extends to Plaintiff's claim for overtime compensation.
[7] Compare Anderson, 508 F.3d at 194 ("[W]e. . . conclude that the Class Members' FLSA-based contract, negligence and fraud claims are precluded under a theory of obstacle preemption."); Johnston v. Davis Security, Inc., 217 F.Supp.2d 1224, 1227 (D.Utah 2002) (dismissing common law claims for, inter alia, conversion, unjust enrichment, fraud, negligent misrepresentation, gross negligence, breach of contract, and breach of fiduciary duty because the "common law claims are based on the same facts and circumstances as [the] FLSA claims"); Petras v. Johnson, No. 92 Civ. 8298(CSH), 1993 WL 228014, at *4 (S.D.N.Y. Jun. 22, 1993) ("Because defendants' alleged fraud consists of the intentional frustration of the FLSA overtime rules, for which the FLSA provides a remedy in the form of liquidated damages . . . plaintiff's claim for punitive damages based on fraud is dismissed."); Nettles v. Techplan Corp., 704 F.Supp. 95, 100 (D.S.C.1988) (holding that plaintiff's common law negligence claims were preempted by the FLSA); with Avery v. City of Talladega, 24 F.3d 1337, 1348 (11th Cir.1994) (allowing claim for breach of contract coterminous with FLSA claim to survive "as an alternative legal theory"); Davis, 2004 WL 1926087, at *6-7, 2004 U.S. Dist. LEXIS 17284, at *27-28 (holding that FLSA did not preempt unjust enrichment claim and noting that "parties are entitled to plead causes of action under both state and federal law to vindicate the same right"); Paukstis v. Kenwood Golf & Country Club, Inc., 241 F.Supp.2d 551, 559-60 (D.Md.2003) (concluding that state negligence claim did "not necessarily conflict with the purpose of the FLSA's remedial scheme" and denying motion to dismiss).
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350 F.Supp. 21 (1972)
F. M. VAN HECKE, Plaintiff,
v.
Henry S. REUSS, Defendant.
Civ. A. No. 72-C-583.
United States District Court, E. D. Wisconsin.
November 3, 1972.
*22 David C. Sullivan, Milwaukee, Wis., for plaintiff.
Ronald S. Jacobs, Milwaukee, Wis., for defendant.
MEMORANDUM DECISION ON MOTION FOR PRELIMINARY INJUNCTION
REYNOLDS, Chief Judge.
In this action plaintiff challenges the use of the franking privilege by a member of Congress for certain mailings which are alleged not to have been "upon official business" within the meaning of 39 U.S.C. § 3210. Jurisdiction is conferred by 28 U.S.C. §§ 1291 and 1339.
Plaintiff F. M. Van Hecke is the Republican candidate for Congress in Wisconsin's Fifth Congressional District, and the defendant Henry S. Reuss is the Democratic incumbent running for reelection. Plaintiff's motion for a temporary restraining order was denied, and the matter is now before me on his motion for a preliminary injunction against defendant's use of the franking privilege prior to the election on November 7, 1972. In light of plaintiff's failure to show either that past mailings violated the franking privilege or that he is threatened with further mailings before the election, his motion is denied.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In July 1972 the defendant used his franking privilege to mail an undisclosed number of letters (hereafter "July mailing") consisting of a single sheet of paper with a statement by defendant about the handling of the federal budget on one side and a list of the Agriculture Department's bulletins for homemakers on the other. Printed above defendant's statement is a picture of defendant and a letterhead announcing that the letter came from defendant's office.
The defendant's next mailing was in August (hereafter "August mailing"). It consisted of a small pamphlet which indexed selected federal publications on consumer products. The pamphlet was published by the Consumer Product Information Coordinating Center of the General Services Administration. The mailing also included a cover letter from defendant introducing the pamphlet and instructing the reader on ordering the publications.
The final mailing alleged to violate the franking privilege was made in September 1972 (hereafter "September mailing"). It consists of a single sheet of paper with printing and photographs on both sides and is entitled "A Record of Action for America's Elderly Written By The Ninety-Second Congress." On the top of the title page are the words *23 "Congressman Reuss Reports," the letterhead of the House of Representatives, defendant's signature, and the parenthetical statement "Not Printed at Government Expense." The text discusses specific legislation passed to assist the elderly, the effect of the legislation on the economy, and the burden of inflation.
All the mailings were addressed to "Postal Patron" pursuant to 39 C.F.R. § 122.4(d)(2)(a). They were only sent to defendant's constituents in the Fifth Congressional District.
Plaintiff filed this action on October 19, 1972, charging that the mailings were sent for the purpose of aiding defendant's re-election and, hence, were not "upon official business." Plaintiff's motion for a temporary restraining order was denied from the bench on October 23, 1972, because it did not appear that there would be further mailings before the matter could be more carefully considered. Briefs were submitted, and a hearing on plaintiff's motion for a preliminary injunction was held on November 1, 1972.
In Hoellen v. Annunzio, 468 F.2d 522 (7th Circuit, 1972), the Seventh Circuit Court of Appeals in a two-to-one decision set forth the principles that must govern district courts in this circuit in determining whether a violation of the franking privilege has occurred. That case, like the one here, involved a suit by one candidate for Congress against another. The majority in Annunzio held that mailings would be "upon official business" when their purpose was to further a legitimate legislative function other than the sender's own re-election. It therefore became the court's duty to determine the purpose of the mailings.[*] The opinion further states that when the content of the mailing indicates an official purpose, extrinsic evidence bearing on the sender's actual motivation ordinarily should not be considered. However, the majority held, courts should not close their eyes in the face of extrinsic evidence which reveals that an appearance of official business is nothing more than a mask or a private purpose.
In Annunzio the defendant had mailed questionnaires shortly before the election to both his constituents in the district he represented and to nonconstituents in the district where he was then running for office. The court of appeals, like the district court below, had no difficulty in approving defendant's use of the franking privilege to send the questionnaires into his own district:
"* * * Clearly Congressman Annunzio had the right to send the questionnaire as franked mail to his constituents in the Seventh District. It was within the proper exercise of the duties of his office to consider, and hence to solicit, the views of his constituents on matters of public importance that were, or were likely to be, before the Congress. * * *." Hoellen v. Annunzio, 348 F.Supp. 305 (N.D. Ill., 1972), cited with approval in Hoellen v. Annunzio, 468 F.2d 522 (7th Circuit, 1972). *24 The mailings to nonconstituents, however, were enjoined since the court of appeals found substantial evidence to support the district court's finding that they were for the purpose of advancing defendant's candidacy.
The primary evidence leading to the district court's finding was, of course, that the questionnaires were not sent to defendant's constituents but to others whose views would not ordinarily be of any more importance to him as a Congressman from another district than those of any residents of Illinois. Other evidence showed that in defendant's four years as a Congressman, this was the first time he had faced significant opposition, and this was also the first time he had mailed any questionnaires.
Under the approach of Annunzio, plaintiff here has fallen far short of showing that defendant's mailings violated the franking privilege. Plaintiff admits that defendant sent all the mailings to his constituents in the Fifth Congressional District, the factor crucial in Annunzio and in the California case of Rising v. Brown, 313 F.Supp. 824 (C. D.Cal.1970). Moreover, the contents of the mailings themselves indicate that each was mailed for the purpose of furthering a legitimate legislative function.
The list of Department of Agriculture publications in the July mailing along with defendant's promise to send them to his constituents on request indicates that the purpose of the mailing was to assist the constituents in obtaining the publications. As if to remove any doubts that such mailings were "on official business," Congress expressly authorized the sending of agricultural reports under the franking privilege in 39 U.S.C. § 3213. That the mailing contained defendant's picture no more destroys its official character than did the picture of the defendant on the press releases in Annunzio. Without dealing in detail with the content of the short letter about the handling of the federal budget, I believe it sufficiently indicates the purpose of informing defendant's constituents to be considered "official business," even standing alone.
Plaintiff's complaint about the August mailing is even less meritorious. The index of bulletins about consumer products plainly concerns "official business," and even the district court in Schiaffo v. Helstoski, 350 F.Supp. 1076 (D.N.J.1972), which has given the most narrow scope to the franking privilege, has held that cover letters are permissible.
The September mailing adopts a more argumentative tone than the others, yet it is full of factual information of general interest to defendant's constituents and in particular to the elderly. Far from being a simple appeal for votes as characterized by plaintiff, or a mere glorification of the defendant's past voting record as was the mailing in Rising v. Brown, 313 F.Supp. 824 (C.D.Cal. 1970), the September mailing is a unified description of the legislative activity of the 92nd Congress concerning the elderly. In contrast with the mailings in Rising, the September mailing makes no mention of political parties and contains no picture of defendant nor any reference to defendant personally in the text of the report. The mailing also contains no reference to the upcoming election. Indeed, nothing in the mailing conflicts with the standards used by the Post Office prior to 1969 when it had the responsibility of determining what was a proper use of the franking privilege:
"Correspondence on `Official Business' is that in which the member deals with the addressee as a citizen of the United States or constituent, as opposed to the relationship of personal friend, the relationship of candidate or prospective candidate and voter, or when the member writes in the capacity of a member of a political party or faction.
* * * * * *
"Appeals for political support, references to what a member expects to do in the next Congress sent out before *25 an election, discussion of a prior political campaign, discussion of a coming political campaign and reference to campaign opponents as such are all matters beyond the official business concept." "The Congressional Franking Privilege," Post Office Department Publication #126 (April 1968).
Under the approach of Annunzio, I find that in light of the totality of evidence, the purpose of the September mailing was to inform defendant's constituents of the recent legislative activity concerning the elderly. It is within the proper exercise of the duties of defendant's office to fulfill that purpose.
In making this determination I wish again to express my doubts about the wisdom of inquirying into the "motives" of legislators to determine whether they have acted out of a desire to perform their official duties or to win re-election. The September mailings illustrate the difficulties with this approach. Though, as I found, the overall purpose was to inform constituents on a matter of public interest and not to win re-election, few would claim that the purposes could be separated in the mind of any elected official. Does not the approach in Annunzio and Rising then make the use of the franking privilege depend on how well the legislator masks his private purpose? Is it not just a question of subtlety? As Justice Holmes correctly saw that every idea may be an incitement, so too every fact concerning the recent legislative past may influence a candidate's reelection. The test proposed by Judge Swygert in his dissent in Annunzio would alleviate these difficulties by asking only that the mailing further some legitimate legislative purpose other than the sender's re-election.
Plaintiff has also failed to show that further mailings are likely to be made before the election if this injunction is not granted. The defendant has submitted an affidavit in which he states that he plans no further mailings before the election. Plaintiff's reply has been to allege that defendant has a pattern of sending mailings shortly before elections. Yet the only evidence plaintiff has offered to show such a pattern is his own testimony that as a resident of the Fifth District he received no mailings during defendant's current term besides the three alleged to violate the franking privilege, all of which were sent within five months of the election. Plaintiff's evidence does not convince me that defendant's unequivocal declaration of his intentions should not be believed.
Surveying the record, I find that despite the briefs and affidavits which have been submitted and the two hearings which have been held, plaintiff has come forward with no evidence that would justify an injunction against the defendant.
For the foregoing reasons, plaintiff's motion for a preliminary injunction is denied.
NOTES
[*] Judge Swygert, in dissent, disagreed with this dichotomous approach. Rather than indulge in the fiction that legislators' purposes can be neatly grouped into those that are official and those that are political, he recognized the practical fact that many activities have a dual purpose, and legitimately so. The actions of a representative that keep him in the public eye and in touch with his constituency are often no less a part of a representative's "business" in a democracy than the many ministerial actions he performs "officially." In this sense politics is his official business. Judge Swygert's test would allow use of the franking privilege whenever one can reasonably infer that the mailing serves any legitimate legislative purpose other than the sender's re-election.
I believe that the printed material should be judged by its content and other objective evidence dealing with its use. It is unwise for a court to attempt to determine the "intent" or "motive" of a member of Congress. But if the sender's intent is to be considered at all, Judge Swygert's test more closely reflects reality and is more workable.
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514 So.2d 180 (1987)
Anna PERKINS
v.
Gary V. RICKS, et al.
No. CA-7154.
Court of Appeal of Louisiana, Fourth Circuit.
October 7, 1987.
Rehearing Denied November 18, 1987.
Writ Denied January 29, 1988.
*181 Allain F. Hardin, Wiedemann & Fransen, New Orleans, for plaintiff-appellee, Anna Perkins.
James J. Morrison, Jr., New Orleans, for defendants-appellants, Gary V. Ricks, et al.
Before GULOTTA, C.J., and GARRISON and WARD, JJ.
WARD, Judge.
This suit was instituted by Anna Perkins for personal injuries sustained in Rick's Restaurant. Defendants are Gary V. Ricks d/b/a Rick's Restaurant and/or the Ritz, and Security Insurance Company.
A jury rendered a verdict in Perkins's favor for $40,000 in general damages, $20,000 in special damages for future lost income, and $1,060 in medical expenses. Defendants appeal the Trial Court's judgment, rendered in accordance with the jury *182 verdict, contesting both liability and quantum.
Perkins, a licensed cosmetologist, and her friend, Linda Parker, went to lunch at Rick's Restaurant in Algiers on August 30, 1983. During lunch, Perkins's chair collapsed and she fell to the floor injuring her shoulder. Two other customers, Debra Lier and Terry Ehrlich, witnessed the incident. After refusing a restaurant employee's suggestion to go to a doctor in the building, Perkins went to a hospital later that day. The record contains no information on this hospital visit.
At the advice of her attorney, Perkins consulted Dr. Wilmont Ploger, an orthopedic surgeon, who examined her on the day of the accident. Dr. Ploger diagnosed a contusion of the right shoulder and a strained shoulder joint, and prescribed pain medication and heat treatment. Perkins visited Dr. Ploger twice in September but failed to keep an appointment in October. During these visits, she complained of pain, numbness in her hand, and decreased strength in her arm, and Dr. Ploger found tenderness in the shoulder joint and restricted motion of the shoulder. Both symptoms, however, were present only in Perkins's first September visit. Otherwise, Dr. Ploger found no abnormalities and recommended conservative treatment. He felt she could return to work by September 19.
Dr. Ploger did not see Perkins again for over five months. On February 21, 1984, she returned with complaints of increased pain in her shoulder and neck. He found some tenderness but found that her neck motion, as well as the neurological examination and X-rays, were all normal. He prescribed a drug and physical therapy to relieve soreness in joints and muscles. The therapist noted, in the initial session on February 28, 1984, that Perkins's shoulder motion was significantly restricted; this condition, however, improved with the therapy.
Dr. Ploger saw Perkins twice in March and once in April 1984. By April, he observed normal motion in both spine and shoulder, and found only mild tenderness in the shoulder. He terminated her therapy after concluding that she had gained the maximum benefit from it, and he suggested only that she continue heat treatment and exercise at home. This was the last time he saw Perkins as she did not keep her next scheduled appointment a month later.
Perkins was in an automobile accident in June 1984 and testified that the impact was so great that she was "paralyzed instantly" and able to walk only after surgery. She stated that the accident "irritated" her shoulder, and that she had two "cardiac arrests" after this accident.
At trial, Perkins also testified that she continues to experience pain, that her lifestyle has changed because, for example, she cannot hold her grandchildren, and that she was forced, because of the injury, to close her beauty salon which she claims to have opened a few weeks before she was injured in the restaurant. She explained that her failure to seek medical treatment for five months was caused by her depression following her husband's deathwhich occurred three years before the incident in the restaurant.
Dr. Ploger testified that, in his opinion, Perkins probably sustained an injury to her shoulder joint from her fall which did not resolve itself in the normal period of three to six months. He gave no estimate of percentage of disability. His affirmative response to a question as to whether Perkins may risk a future affliction of bursitis or arthritis did not indicate whether the risk was any greater for Perkins than for other people.
LIABILITY
Defendants assign error in the jury verdict on liability. The jury determined that defendants were strictly liable to Perkins under La.C.C. art. 2317, and further, that defendants could not claim victim fault as a defense. We find no error in the jury's assessment of liability, and affirm the judgment of the Trial Court in this regard.
*183 La.C.C. art. 2317 imposes strict liability upon custodians of things that cause injury. To establish liability under the article Perkins had to prove that the chair was in defendants' custody, that the chair had a vice or defect, and that her injury was caused by this vice or defect. Campbell on behalf of Campbell v. State, through Department of Highways, 439 So.2d 1175 (La.App. 4th Cir.), writ denied, 443 So.2d 588 (La.1983). The jury found that Perkins proved these elements.
Defendants claim that testimony of two independent witnesses, Lier and Ehrlich, shows that Perkins caused her own injury by wiggling the chair and not getting out of the chair before it collapsed. Apparently, the jury chose instead to believe the testimony of Perkins and her lunch companion, Parker, which tended to show that Perkins did nothing to cause her own injury. The jury's finding that Perkins did not contribute to her own injury, we believe, is reasonable and supported by the record. Thus, the Trial Court's judgment on liability is affirmed.
DAMAGES
In reviewing damage awards, an appellate court may disturb an award made by the Trial Court when the record reflects that the trier of fact abused its discretion in making the award. Emerson v. Empire Fire and Marine Insurance Co., 393 So.2d 691 (La.1981). If the factual basis for the award is not reasonably supported by credible evidence in the record, that award is manifestly erroneous and can be reversed on appeal.
The record shows that Perkins injured her shoulder joint as a result of her fall in the restaurant. The record also shows that Perkins's non-debilitating injury required neither hospitalization nor surgery. She sustained no lacerations or fractures and was treated conservatively with heat, medication and therapy. This treatment, the record indicates, substantially improved her condition. Although she was never formally discharged as fully recovered, Perkins's discontinuation of medical treatment three weeks following the injury, together with all of the evidence in the record, indicates that her injury could not reasonably have been found to merit the sum awarded in general damages.
Dr. Ploger never found atrophy or spasm. He found swelling only on Perkins's initial visit and normal range of motion by her third visit. He obtained normal X-rays and neurological examinations. While her injury may not have been resolved in the normal amount of time, Perkins's termination of medical treatment eight months following her fall indicates, we believe, that the injury was eventually resolved. Without having seen Perkins for over two years prior to trial, Dr. Ploger's reference to any potential for her symptoms to have "lingered" is mere speculation. Any lingering or new symptoms could have just as likely resulted from her automobile accident.
Moreover, Perkins's complaints at trial of unbalanced arm reaches, poor handwriting, numbness in her hand, and pain when exposed to air or cold weather, were not confirmed by Dr. Ploger with the exception of complaints of numbness noted on her second visit. Overall, Perkins's claim for damages is based on subjective complaints of pain, while virtually all objective evidence reveals normal results. And, as we will later explain, Perkins's testimony was seriously impeached, rendering her credibility questionable at best.
After carefully reviewing the record, we conclude that the general damages award is excessive and unsupported by the evidence. We will lower the award to the highest point which we believe is reasonably within the discretion afforded the jury. Emerson, supra. Thus, the general damage award is $20,000.
Turning now to Perkins's claim for special damages, the jury awarded $20,000 to Perkins for lost future income, which the Judge instructed was equivalent to diminished earning capacity. Defendants assign error to the Trial Judge's failure to instruct the jury that without proof of prior profits or income, no award can be made for loss of future income or profits. Defendants also assign error to the jury's verdict on *184 lost future income claiming that it is an abuse of discretion.
Perkins was 40 years old when she fell in the restaurant. She received her cosmetology license in 1981 and opened a beauty salon in 1983. The salon, she claims, remained opened for approximately one month.
With regard to an amount the jury may award to Perkins for future lost income or diminished earning capacity, the Trial Judge instructed the jury:
You are to consider the plaintiff's physical condition prior to the accident, her work record, the amount of her income in previous years, the probability or improbability that she would have earned similar amounts during the remainder of her work life if she had not sustained the injury for which she has filed this lawsuit....
Loss of future income is not merely predicated upon the difference between a plaintiff's earnings before and after a disabling injury, but upon the difference between a plaintiff's earning capacity before and after an injury. Folse v. Fakouri, 371 So.2d 1120 (La.1979); Morgan v. Willis-Knighton Medical Center, 456 So.2d 650 (La. App. 2nd Cir.1984). Loss of future income awards thus encompass the loss or reduction of a plaintiff's earning potentiala person's capability to do that for which she is equipped by nature, training, and experience, and for which she may receive compensation. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). The Trial Judge's instruction to the jury properly assigned and communicated the relative importance of Perkins's work record prior to her injurythat is, the jury was to consider her earning potential before and after the injury. Defendants' assignment of error on the jury instruction is, therefore, without merit.
We do find error, in the jury's award to Perkins for future lost earnings. Because this type of award is inherently speculative, courts should exercise sound judicial discretion in making them, and render awards that are consistent with the record and just to all parties. Robinson v. Graves, 343 So.2d 147 (La.1977). Finding that the record not only lacks necessary evidence to support the award but also contains evidence which clearly contradicts any basis for the award, we hold that the $20,000 award for future lost income is a clear abuse of discretion.
Before an award can be made for lost future income, the trier of fact must first determine whether and for how long a plaintiff's disability will impair her earning potential, that is, the effect the injury had on plaintiff's ability to earn a living. Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968); Vial v. Armstrong, 479 So.2d 583 (La.App. 1st Cir.1985). Only after making this threshold determination should the jury consider the factors which were enumerated by the Trial Judge in his jury instruction.
Because no evidence was presented as to whether or for how long Perkins's earning potential was impaired, her loss of future earnings cannot reasonably be determined. Perkins's only treating physician made no disability assessment. Indeed, his only testimony relating to Perkins's ability to work was that he felt she could return to work three weeks after the accident.
The only testimony indicating a decrease in earning potential, aside from Perkins's own complaints of pain at trial, was given by the receptionist at Perkins's beauty salon who stated that customers complained that Perkins did not roll their hair tightly enough. This testimony is woefully insufficient to establish a disabling injury causing a loss in future earnings. Furthermore, there was no expert testimony on Perkins's work life expectancy or projected earnings.
Even assuming there was evidence by which the jury could have reasonably found disability which impaired Perkins's work, the only evidence which could conceivably support the jury's award for loss of future income is so discredited as to render that award clearly wrong. The documentary evidence contradicts Perkins's testimony about her work record and earnings at her beauty salon prior to her accident. At trial, *185 whether Perkins opened her beauty salon before or after the incident in the restaurant was a highly disputed issue. The dispute is relevant to the issue of lost future earnings because if the evidence proves that Perkins opened a beauty salon after sustaining, and notwithstanding, the injury, she is not entitled to any award for lost future earnings.
Based solely on their memories, Perkins and her receptionist claim the business opened in mid-August 1983, before the August 30 accident, and closed at the end of September 1983. The documentary evidence all contradicts a mid-August 1983 opening.
The application to renew her shop owners' license, which Perkins claims was displayed in her beauty salon when it opened, has a notation which clearly indicates that the initial license was issued to Perkins well after the August 1983 accident. The notation, a carbon imprint from the original license, reads:
Initial
11-29-83
$45.00
This November 1983 date cannot be, as Perkins claims, the date the license was to be renewed because the application specifically states that the license is to be renewed annually, between January and March. Thus, because Perkins first obtained her shop owner's license in 1983, the license would not have to be renewed on November 29, 1983. Obviously, Perkins did not obtain a license until November 29, 1983, approximately three months after the accident.
Newspaper advertisements concerning employment opportunities at the beauty salon were also introduced into evidence. It was undisputed that the advertisements were published in December 1983, well after Perkins claims to have closed her business. Perkins explained that she prepaid the advertisements, but we find this explanation unconvincing.
Defendants introduced various documents into evidence concerning Perkins's lease of the premises for her beauty salon. Although the evidence indicates that Perkins moved into the shop over a period of time and was given the first month rent-free, the lease date, nevertheless, is noted as "11-14-83" on the leasing agent's file card and the lease itself is dated October 22, 1983. These dates probably differ because there was a misunderstanding, testified to by Perkins, about the exact amount of rent; regardless of the discrepancy, however, the card and the lease clearly indicate Perkins did not open a beauty salon on the premises until after the accident. An eviction notice dated January 4, 1984 for non-payment of rent from November 15, 1983 to January 31, 1984 was also introduced into evidence, further discrediting Perkins's claims about the dates her business was in operation.
In addition, Eloise Hurta, an employee of the leasing company, testified at trial that Perkins did not open the beauty salon until late October 1983 at the earliest. Not only was Hurta's testimony based upon the documents drawn up in connection with the lease, but also on her personal observation of the premises which she passed each day on her way upstairs to work at the leasing company.
Perkins's assertion that she was forced to close her business in September 1983 because of the injury sustained in the restaurant is, thus, unsupported and contradicted. Although we may not be able to ascertain the exact date that Perkins actually opened her business, the documentary evidence refutes her claims of a mid-August 1983 opening and late September 1983 closing. Although the opening date is an important inquiry for a proper consideration of the factors set forth in the jury instruction, the jury either ignored or misinterpreted the evidence. We are unable to find any evidentiary basis for the jury's award for lost future income.
We find, therefore, that the jury verdict awarding Perkins $20,000 for lost future income was not based on a reasonable interpretation of the evidence and, indeed, was contrary to the weight of both documentary and testamentary evidence. This verdict was a manifest abuse of discretion, and we thus have determined, under the *186 evidence, that Perkins is not entitled to any amount for lost future income.
In summary, although we affirm the Trial Court judgment on liability, the evidence on pain and suffering does not support the jury award for general damages particularly in light of Perkins's testimony which we find incredible. Therefore, the judgment is amended to decrease the award for general damages from $40,000 to $20,000, the amount which we believe is the highest amount reasonably within the jury's discretion. Furthermore, for reasons detailed above, we discount any award for lost future earnings and thus eliminate that award in its entirety. All costs of this appeal are assessed to Perkins.
AFFIRMED AS AMENDED.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 10-3548
_______________
NATIONAL LABOR RELATIONS BOARD,
Petitioner
v.
REGENCY GRANDE NURSING AND
REHABILITATION CENTER,
Respondent
______________
On Appeal from the National Labor Relations Board
(NLRB-1 : 22-CA-28331
NLRB-1 : 22-CA-28384
NLRB-1 : 22-RC-12889
NLRB-1 : 22-RC-12895)
______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 21, 2011
BEFORE: BARRY, AMBRO and COWEN , Circuit Judges
(Filed: August 9, 2011 )
_______________
OPINION
_______________
COWEN, Circuit Judge.
This case is before the Court on an application of the National Labor Relations
Board (the “Board”) to enforce an order entered on August 23, 2010 against Regency
Grande Nursing and Rehabilitation Center (“Regency Grande”). For the reasons that
follow, we will enforce the order.
I.
In 2005, the Board found that Regency Grande had engaged in unfair labor
practices at its Dover, New Jersey facility during organizing efforts by Local 300S, a
union affiliated with the United Food and Commercial Workers Union, and Local 1199
of the Service Employees International Union (“SEIU”). Specifically, the Board found
that Regency Grande had violated Sections 8(a)(1), (2), and (3) of the National Labor
Relations Act (the “Act”) by recognizing Local 300S as the exclusive collective-
bargaining representative of employees and entering into a collective-bargaining
agreement with Local 300S at a time when that union did not represent a majority of
those employees. Regency Grande Nursing & Rehab. Ctr., 347 NLRB 1143 (2006).
Upon review, this Court found that substantial evidence supported the Board’s findings
and enforced the Board’s order. N.L.R.B. v. Regency Grand Nursing & Rehab. Ctr., 265
F. App’x 74 (3d Cir. 2008) (not precedential) (“Regency Grande I”).
Soon thereafter, the Board filed additional unfair labor practices charges against
Regency Grande concerning its actions at the Dover facility. Specifically, the complaint
2
alleged that Regency Grande had violated Sections 8(a)(1) and (3) of the Act by: (a)
interrogating housekeeping employee Manuela Figueroa on March 4, 2008 about why she
met with a union organizer in the home of another employee, causing her to reasonably
believe that her activities were under surveillance; (b) interrogating housekeeping
employee Valeria Madeina on April 10, 2008 as to how she voted in a representation
election; and (c) discharging employee Aida Basualto on April 10, 2008 because she
supported Local 1199.
Following a hearing, an administrative law judge (“ALJ”) found that Regency
Grande had violated the Act as charged. Regency Grande sought administrative review.
While its appeal was pending before the Board, the company filed a motion requesting
that Board Member Becker recuse himself from the case because he had previously
worked with the SEIU. Upon review, the Board affirmed the ALJ’s rulings and adopted
the recommended order with minor modifications. The Board issued a broad cease-and-
desist order enjoining the company from future violations of the Act, and ordered
Regency Grande to offer Basualto full reinstatement of her former position to the extent
that it had not already done so. The Board denied Regency Grande’s motion to recuse
Member Becker. We now review the Board’s order.1
1
On September 3, 2009, a two-member panel of Board issued a Decision, Order, and
Certification of Representative adopting and affirming the ALJ’s decision with
modifications. Thereafter, Regency Grande filed a petition for review in the United
States Court of Appeals for the District of Columbia Circuit. On June 17, 2010, the
United States Supreme Court issued its decision in New Process Steel, L.P. v. N.L.R.B.,
130 S. Ct. 2635 (2010), holding that, under Section 3(b) of the Act, a delegee group of at
least three members must be maintained. Thereafter, the Board issued an order setting
aside the September 3, 2009 decision and order. The Board subsequently delegated its
3
II.
We exercise jurisdiction over this appeal from the Board’s decision pursuant to
Section 10(e) of the NLRA. 29 U.S.C. § 160(e). Where the Board has adopted the ALJ’s
decision in part, we review both the decisions of the ALJ and the Board. See id. We
review these decisions to determine whether there is substantial evidence in the record as
a whole supporting the agency’s findings. Stardyne, Inc. v. N.L.R.B., 41 F.3d 141, 151
(3d Cir. 1994). “Substantial evidence” has been defined as simply “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Hedstrom Co. v. N.L.R.B., 629 F.2d 305, 313 (3d Cir. 1980) (internal quotation marks
and citation omitted). “A court should defer to the Board’s determination under this
restrictive standard of review, even when the court itself would be inclined to adopt a
different interpretation of the evidence.” Id. at 313-314.
III.
A. The Section 8(a)(1) Violation
Regency Grande first challenges agency’s determination that the company
violated Section 8(a)(1) of the Act by interrogating employees about their union activity
and creating the impression of surveillance.
Section 7 of the Act grants employees the “right to self-organization, to form, join,
or assist labor organizations . . . and to engage in . . . concerted activities for the purpose
authority in this proceeding to a three-member panel, which issued a Decision, Order, and
Certification of Representative on August 23, 2010 incorporating by reference the two-
member panel’s decision and adopting and affirming the ALJ’s decision to the extent and
for the reasons stated in that decision.
4
of collective bargaining or other mutual aid or protection . . . .” 29 U.S.C. § 157. Section
8(a)(1) of the Act implements that right by making it an unfair labor practice for an
employer “to interfere with, restrain, or coerce employees in the exercise” of their
Section 7 rights. 29 U.S.C. § 158(a)(1). To establish a violation of this provision, “it
need only be shown that under the circumstances existing, the employer’s conduct may
reasonably tend to coerce or intimidate employees in the exercise of rights protected
under the Act.” Hedstrom, 629 F.2d at 314 (internal quotation marks and citation
omitted). Conduct that gives the impression of surveillance violates Section 8(a)(1) if it
tends to interfere with, restrain, or coerce employees in the exercise of their Section 7
rights. Hanlon & Wilson Co. v. N.L.R.B., 738 F.2d 606, 613 (3d Cir. 1984).
In this case, substantial evidence supports the Board’s determination that Regency
Grande violated Section 8(a)(1) of the Act by its actions on March 4, 2008. At the
hearing, testimony revealed that, on or about March 3, 2008, Basualto and four other
housekeeping employees, including Manuela Figueroa, were talking to a Local 1199
organizer outside of the facility. Basualto invited the group to continue their discussion
at her home, which was located only two buildings away from the facility. The following
day, on March 4, 2008, Figueroa’s supervisor, Housekeeping Director Martin Reyes,
approached her at work and asked her why she had gone to Basualto’s home. When
Figueroa asked Reyes why he was asking, Reyes did not respond. Later that day,
Basualto complained about Reyes’s questioning of Figueroa to Regency Grande
administrators.
5
The Board reasonably determined that this questioning amounted to unlawful
interference with union activity. Although Regency Grande now argues that Reyes’s
“innocuous” question did not violate the Act because he did not mention unionization
during the conversation (Br. 41-42), we agree with the Board that Reyes’s actions could
have “suggest[ed] to the employees that the employer may take action against them
because of their pro-Union sympathies,” Hunter Douglas, Inc. v. N.L.R.B., 804 F.2d 808,
816 (3d Cir. 1986), and given them the impression that their union activities were under
company surveillance.
Substantial evidence also supports the Board’s determination that Regency
Grande’s actions on April 10, 2008 violated Section 8(a)(1). Housekeeping employee
Maria Carraon testified that, immediately after she cast her ballot that morning, Reyes
approached her and coworker Valeria Madeina as they left the polling area. Although
Carraon was a well-known supporter of Local 1199, Madeina’s union sympathies were
unknown. After approaching the women, Reyes asked Medeina which union she had
voted for. Madeina responded only that she had voted for “the better one.” (A-186.)
Reyes then asked whether 300S was “the better one,” to which Madeina responded,
“sure.” (Id.) Although Reyes testified that he could not recall this conversation, and told
the ALJ that any such conversation would have been in violation of company policy, the
ALJ discredited his testimony as “vague and hedging.” (A-447.) Given that “credibility
decisions rest with the ALJ as long as he considers all relevant factors and sufficiently
explains his resolutions,” Hanlon, 738 F.2d at 613, we will defer to the ALJ’s findings, as
affirmed by the Board.
6
B. The Section 8(a)(3) Violation
Next, Regency Grande challenges the agency’s determination that the company
violated Section 8(a)(3) of the Act when it discharged employee Basualto in retaliation
for her support of Local 1199.2
Section 8(a)(3) prohibits an employer from discharging an employee because of
her union membership or activities. N.L.R.B. v. Transp. Mgmt. Corp., 462 U.S. 393,
397-98 (1983), abrogated on other grounds by Director, Office of Workers’
Compensation Programs, Dept. of Labor v. Greenwhich Collieries, 512 U.S. 267, 277
(1994). We have previously explained that “[t]he employer’s motivation in firing the
employee is essential to finding a violation, and the Board may look to both direct and
circumstantial evidence to determine whether an unlawful motive exists.” N.L.R.B. v.
Omnitest Inspection Servs., Inc., 937 F.2d 112, 122 (3d Cir. 1991). To assess the
employer’s motivation, the Board may consider whether the employer knew about the
employee’s union activity, whether the employer was hostile towards the union, the
timing of the employee’s discharge, and the employer’s reasons for discharging the
employee. See, e.g., N.L.R.B. v. Eagle Material Handling, Inc., 558 F.2d 160, 169-70
(3d Cir. 1977). “When an employee is discharged for joining a union, the employer has
violated the Act unless it can demonstrate that the employee would have been discharged
regardless of his or her union membership.” Omnitest Inspection Servs., 937 F.2d at 122.
Substantial evidence supports the Board’s determination that Regency Grande
2
Regency Grande’s Section 8(a)(3) violation constitutes a derivative violation of Section
8(a)(1) as well. See Metropolitan Edison Co. v. N.L.R.B., 460 U.S. 693, 698 n.4 (1983).
7
terminated Basualto because of her support for Local 1199. Testimony at the hearing
revealed that, when Basualto arrived to vote on election day, Regency Grande’s owner,
David Gross, asked her if she knew anything about an anti-Local 1199 flyer that had been
posted in the dining room. Basualto said that she knew about the flyer but had not posted
it. Gross then accused her of being the one who posted the flyer, stated that he did not
want her at the facility, and fired her. As the Board explained, however, there was no
reasonable basis for Gross to believe that Basualto had posted the flyer; to the contrary,
the evidence indicated that: (a) Regency Grande’s administration knew that Basualto had
been supporting Local 1199 for many months; and (b) the facility’s administrator, Joseph
Olszewski, had specifically told Gross in the days leading up to the election that two
other employees (Kathy Rohde and Michelle Meikle) had posted the flyer. Although
Regency Grande urges this Court to credit Gross’s testimony that he fired Basualto
because he believed that she posted the anti-Local 1199 flyer, we decline to substitute our
own credibility determinations for those of the agency. See Atl. Limousine v. N.L.R.B.,
243 F.3d 711, 718-19 (3d Cir. 2001).
C. The Board’s Broad Remedial Order
Regency Grande next argues that the Board abused its discretion in issuing a broad
cease-and-desist order. In devising a remedy, the ALJ explained that “[b]ecause
[Regency Grande] has a proclivity for violating the Act, and because of the serious nature
of the violations, I find it necessary to issue a broad Order requiring [Regency Grande] to
cease and desist from infringing in any other manner on rights guaranteed employees by
Section 7 of the Act.” (A-452 (internal citations omitted).) The Board agreed, stating
8
that a remedial order was warranted because Regency Grande “has engaged in persistent
attempts, by varying methods, to interfere with its employees’ protected rights.” (A-441,
n.10.) Regency Grande now argues that its conduct at the Dover facility does not support
the issuance of this type of broad order.
We disagree. A broad order is appropriate “when a respondent is shown to have a
proclivity to violate the Act or has engaged in such egregious or widespread misconduct
as to demonstrate a general disregard for the employees’ fundamental statutory rights.”
Hickmott Foods, Inc., 242 N.L.R.B. 1357, 1357 (1979). As the Board noted, Regency
Grande was found to have committed two unfair labor practices in Regency Grande I.
Then, “[a]lmost immediately after the Third Circuit Court of Appeals enforced that Board
Order, [Regency Grande] renewed its unlawful conduct in support of Local 300S and
against Local 1199; only the means changed.” (A-441, n.10.) As discussed above,
Regency Grande proceeded to commit several additional unfair labor practices. We
agree with the Board that, by this course of unlawful conduct, Regency Grande “has
demonstrated both a general disregard for fundamental statutory rights, i.e., the right of
employees to select their own representatives, and the likelihood of future and varying
efforts to frustrate those rights.” (Id.) This attitude of opposition to the purposes of the
Act provides an appropriate basis for a broad remedial order. See Five Star Mfg., Inc.,
348 N.L.R.B. 1301, 1302 (2006) (stating that a broad cease-and-desist order is warranted
when “respondent’s specific unlawful conduct manifests an attitude of opposition to the
purposes of the Act to protect the rights of employees generally, providing an objective
basis for enjoining a reasonably anticipated future threat to any of those Section 7
9
employee rights”) (internal quotation marks and citation omitted). Therefore, we will not
disturb the Board’s order. See Quick v. N.L.R.B., 245 F.3d 231, 254 (3d Cir. 2001)
(“The NLRB’s choice of a remedy must be given special respect by reviewing courts, and
must not be disturbed unless it can be shown that the order is a patent attempt to achieve
ends other than those which can fairly be said to effectuate the policies of the Act.”)
(internal quotation marks and citations omitted).
D. The Motion to Recuse Member Becker
Finally, Regency Grande argues that the Board erred in denying its motion to
recuse Member Becker. Regency Grande claims that recusal was appropriate because,
prior to his appointment on the Board, Member Becker served as counsel to the SEIU. In
fact, according to Regency Grande, Member Becker was serving as general counsel to the
SEIU when an arbitration involving SEIU Local 1199 and Local 300S took place in
2003.
We see no error in the Board’s decision denying Regency’s motion. In Service
Employees Local 121RN (Pomona Valley Hospital Medical Center), 355 NLRB No. 40
(2010), 2010 WL 2311381 (June 8, 2010), Member Becker explained the standards to
apply in evaluating recusal requests. He first noted that, pursuant to the Standards of
Ethical Conduct for Employees of the Executive Branch set forth in Title 5 of the Code of
Federal Regulations, decision-makers may not sit on cases involving parties they
represented in the prior year. 2010 WL 2311381, at *8 (citing 5 C.F.R. § 2635.502(a),
(b)(iv)). In addition, based on the standards set forth in Executive Order 13490, “Ethics
Commitments by Executive Branch Personnel,” a member of the executive branch may
10
not, for a period of two years from the date of his appointment, “participate in any
particular matter involving specific parties that directly and substantially related to [the
member’s] former employer or former clients, including regulations and contracts.” Id. at
*9 (citing Exec. Order No. 13490, 74 Fed. Reg. 4673 (Jan 21, 2009)).
Applying those principles here, the Board concluded that there was no basis for
Member Becker’s recusal. The Board also noted that Member Becker “played no role in
and has no knowledge of” the 2003 proceeding, and that, although he did serve as
counsel to the SEIU in the past, he never served as its “general counsel.” (A-1.) Given
that Regency has not shown that Member Becker’s participation in this matter violated
the above-described standards, or that there was any other reason for him to excuse
himself from this case, we will not disturb the Board’s decision.
IV.
We have reviewed Regency Grande’s remaining arguments and conclude that they
are without merit. Therefore, for the reasons set forth above, we will enforce the Board’s
August 23, 2010 order.3
3
The Board’s motion to strike portions of the joint appendix is denied as moot.
11
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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
Argued October 7, 2015
Decided December 21, 2015
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 15-1129
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 12 CR 697-2
JAMES JONES,
Defendant-Appellant. Virginia M. Kendall,
Judge.
ORDER
James Jones pleaded guilty to possession with intent to distribute crack cocaine, 21
U.S.C. § 841(a)(1), and was sentenced to prison and supervised release. His plea
agreement includes a broad appeal waiver. Despite that waiver, Jones filed this appeal
challenging several conditions of supervised release as unconstitutionally vague and
asking for a full resentencing. We dismiss the appeal.
For more than two years, Jones lived at and sold drugs from his nephew’s stash
house. Jones was arrested at the house with his nephew and another drug dealer. Two
loaded guns and 81 grams of crack cocaine were recovered from Jones’s living space.
Jones eventually pleaded guilty to the § 841 charge and, as part of his plea agreement,
No. 15-1129 Page 2
waived his right to appeal “any part of his sentence (or the manner in which that
sentence was determined).”
A probation officer drafted a presentence investigation report that did not include
any proposed conditions of supervised release. Counsel for Jones submitted a sentencing
memorandum but said nothing in that document about supervised release. Neither did
defense counsel say anything about supervised release at the sentencing hearing.
The district court sentenced Jones to 134 months’ imprisonment (substantially below
the guidelines range of 168 to 210 months) plus 3 years’ supervised release. The court
orally pronounced five special conditions of supervised release, including that Jones
“not possess a firearm or destructive device.” The court did not mention any of the
standard conditions, yet the written judgment issued later includes all 13 of those
conditions, 7 of which Jones seeks to challenge in this appeal. The written judgment also
expands the condition prohibiting possession of guns and bombs to include ammunition
and “any other dangerous weapon.”
Appeal waivers are enforceable and may encompass conditions of supervised release
just like any other part of a sentence. See United States v. Chapas, 602 F.3d 865, 868 (7th Cir.
2010); United States v. Sines, 303 F.3d 793, 797–99 (7th Cir. 2002). The recognized
limitations on appeal waivers are narrow and few: Waivers will not be construed to
foreclose an appellate claim that a sentence exceeds a statutory maximum or rests on a
constitutionally impermissible factor like race, or that defense counsel was ineffective in
negotiating the plea agreement containing the waiver. See United States v. Smith, 759 F.3d
702, 706 (7th Cir. 2014); Dowell v. United States, 694 F.3d 898, 902 (7th Cir. 2012); United
States v. Worden, 646 F.3d 499, 502 (7th Cir. 2011); United States v. Lockwood, 416 F.3d 604,
608 (7th Cir. 2005); United States v. Bownes, 405 F.3d 634, 637 (7th Cir. 2005). None of these
limitations applies to Jones.
He instead relies on United States v. Adkins, 743 F.3d 176 (7th Cir. 2014), an opinion
that allowed a defendant to challenge a condition of supervised release as
unconstitutionally vague despite a broad appeal waiver. Id. at 192–93. Jones reads Adkins
as “general” support for the proposition that, “notwithstanding an appeal waiver, the
Fifth Amendment’s Due Process Clause allows for appellate review of any discretionary
condition of supervised release which is so vague that no reasonable person could know
what conduct is permissible or impermissible.” That reading is a stretch. In Adkins,
which we have not applied since to excuse an appeal waiver, we were careful to
“emphasize the narrowness of our holding” and to reinforce our longstanding rejection
of a general exception to appeal waivers for constitutional claims. Id. at 193; see United
States v. Behrman, 235 F.3d 1049, 1051–52 (7th Cir. 2000). In fact, Adkins notes explicitly
No. 15-1129 Page 3
that it’s “generally unproblematic to knowingly waive a constitutional right or to lose a
constitutional right (in a clearly demarcated way and in accord with 18 U.S.C § 3583(d))
via special conditions of supervised release.” Adkins, 743 F.3d at 193.
Jones principally challenges the language prohibiting him from possessing “any
other dangerous weapon” in addition to guns, ammunition, and destructive devices. But
that condition of supervised release and the others that Jones contests are not
comparable to the condition at issue in Adkins. In that case the defendant could “not
view or listen to any pornography or sexually stimulating material or sexually oriented
material or patronize locations where such material is available.” 743 F.3d at 194. That
language, we said, was both impossibly vague (“[H]ow can we tell which images or
voices are sexually stimulating for Adkins?”) and immensely overbroad (“Read literally,
this provision might preclude Adkins from using a computer or entering a
library—irrespective of what he views in either place—because both are ‘locations’
where ‘sexually stimulating material … is available.’ Indeed, he might not be able to ride
the bus, enter a grocery store, watch television, open a magazine or newspaper, read a
classic like Romeo and Juliet, or even go out in public.”). Id. In contrast, the prohibition
against “any other dangerous weapon” is authorized by statute, see 18 U.S.C.
§§ 3563(b)(8), 3583(d), and permissible, see United States v. Armour, 804 F.3d 859, 868–69
(7th Cir. 2015).
The appeal waiver stands, and the appeal is DISMISSED.
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14 F.3d 609
Luttrull (Larry)v.Lee (Mark D.)
NO. 93-2577United States Court of Appeals,Eighth Circuit.
June 29, 1993
1
Appeal From: E.D.Mo.
2
AFFIRMED.
3
(The decision of the Court is referenced in a 'Table of Decisions Without Reported Opinions' appearing in the Federal Reporter. The Eighth Circuit has prescribed criteria for publication of opinions and directs that unpublished opinions may not be cited or otherwise used except when the cases are related by virtue of an identity between the parties or the causes of action. Eighth Circuit Rules, Rule 28A(k), 28 U.S.C.A.)
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677 S.W.2d 372 (1984)
LAKE SHERWOOD ESTATES ASSOCIATION, Respondent,
v.
CONTINENTAL BANK & TRUST COMPANY, Appellant.
No. 46296.
Missouri Court of Appeals, Eastern District, Division One.
August 14, 1984.
Motion for Rehearing and/or Transfer Denied September 28, 1984.
*373 Paul Meredith Brown, St. Louis, for appellant.
Prudence L. Fink, Union, for respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied September 28, 1984.
STEPHAN, Judge.
Defendant Continental Bank & Trust Company appeals from a judgment against it for assessments on sixty-four lots in Lake Sherwood Estates for the years 1977 through 1980. During this time, defendant Continental held fee simple title to the lots which were subjects of contracts for deed. The purchasers of the lots were not joined as parties, although they were known to plaintiff. The judgment also granted plaintiff association a lien on the lots which is enforceable by a sheriff's sale. We reverse and remand.
Lake Sherwood Estates is a residential subdivision development in an unincorporated area of Warren County, Missouri. Lake Sherwood Corporation originally owned Plats 1-5 and 7-30 of the development. In 1967, a Declaration of Restrictions, designating Lake Sherwood Corporation as grantor was recorded. The Declaration described only Plat 3 and provided, inter alia, for the establishment of a homeowner's association, plaintiff's predecessor, *374 with the authority to levy and collect assessments on the lots in the development. After multiple conveyances, Leisure Property Systems, Inc., acquired the original plats in 1971. At this time defendant acted as trustee of this property under a subdivision trust agreement, in which it held fee simple title and deeded the lots over to the purchasers when the purchase price was paid in full.
Leisure Property Systems acquired Plats 32-34 in August, 1972. These plats are adjacent to and access is available only through the original development. At that time the original developer, Lake Sherwood Corporation, had no interest in the original development nor did it ever own Plats 32-34. The 1967 Declaration of Restrictions were modified to add Plats 32-34 but Lake Sherwood Corporation remained the grantor. In that form the Declarations were again recorded on August 21, 1972. Defendant Continental acted as trustee of lots contained in Plats 32-34 under a second trust agreement and held fee simple title. Under the terms of the agreement, Continental was to deed the lots over to purchasers when the purchase price was paid in full.
In 1976, defendant acquired Plats 32-34. As trustee under the 1972 trust defendant Continental paid 1976 assessments on eighty-eight lots within Plats 32-34 but not on the sixty-four lots involved in this lawsuit. The 1976 assessments were paid on eighty-eight lots in conjunction with a bulk sale of these lots by defendant Continental to IIT Missouri Corporation. Defendant Continental retained the legal title to the sixty-four lots then under contract to purchasers. During the years 1977-1980, the homeowner's association authorized the levying of assessments on the sixty-four lots owned by defendant Continental, located in Plats 32-34. The contract purchasers and defendant Continental failed to pay these assessments for this four year period.
In 1978, defendant Continental joined IIT Corporation and others in executing an Amendment and Modification to Lake Sherwood Estates' Declaration of Restrictions. The amendment and modification "confirmed and ratified all other provisions of the 1967 restrictions." The amendment was recorded April 26, 1978.
Defendant Continental complains, on several bases, that the trial court erred in holding that the sixty-four lots were subject to the Declaration of Restrictions recorded in 1967, modified and re-recorded in 1972. Defendant argues that these particular lots were not part of the original development and are not subject to the 1976 restrictions. Furthermore, defendant asserts that the restrictions could not attach to these lots via the 1972 re-recording since Lake Sherwood Corporation, the grantor, never had title to the property.
Defendant also complains that, even if the lots became subject to the restrictions by the amendment and modification adopted in 1978, the personal judgment is unauthorized. Defendant maintains that the court should have dismissed the cause under Rule 52.04 because of the nonjoinder of the contract purchasers of the sixty-four lots who are necessary parties. Secondly, defendant claims the petition fails to state a cause of action for personal liability. Defendant Continental here argues that the assessments are, at most, debts owed by the lots and not a personal debt of Continental and, in the alternative, defendant Continental's identity with the sixty-four lots was as successor owner-developer and, by the terms of the restrictions only an owner-purchaser, not an owner-developer, is personally liable for subdivision assessments.
We find that under Rule 52.04 the contract purchasers are necessary parties to this attempt to collect association assessments for the years 1977-1980 on their lots. Rule 52.04(a) provides:
Persons to be joined if feasible. A person shall be joined in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his *375 absence may (i) as a practical matter impair or impede his ability to protect that interest, or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligation by reason of his claimed interest. If he has not been joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant. (emphasis added).
This defect may be raised at any stage of the proceedings, even on appeal. Rule 55.27(g)(2). It was raised in the trial court. The judgment gives the plaintiff association the option to collect the assessments directly by sale of the lots and to turn the contract purchasers out in favor of purchasers of the liens. The contract purchasers were not made parties, in spite of their obvious interest in the outcome of the action. Such nonjoinder did "impair or impede" their "ability to protect that interest." Rule 52.04(a). The identities and addresses of the contract purchasers were known to plaintiff and there is nothing to indicate that it would not have been feasible to join them. They were necessary parties, and failure to join them mandates reversal, Kingsley v. Burack, 536 S.W.2d 7, 13 (Mo. banc 1976). Further, Paragraph 20 of the restrictions provides that the grantee, lot purchasers become and remain a member of Lake Sherwood Estates homeowner's association and become personally bound to pay to the association such annual dues and assessments as its board of directors shall fix and determine. The purchasers of lots in the subdivision, not the developer, assume personal liability for assessments. These purchasers must be made parties to the suit under Rule 52.04(a). They are indispensible necessary parties and are entitled to an opportunity to protect their interests.
We elect to comment on defendant Continental's contention that it is an owner-developer not an owner-purchaser and therefore not personally liable for a money judgment based upon assessments of plaintiff association.
The law favors the free use of land and "restrictions upon the free use of real property are not favored and are strictly construed, and doubts in respect thereto are resolved in favor of the free use of the property." Chiles v. Fuchs, 249 S.W.2d 454, 456 (Mo.1952). Restrictions may be imposed by agreement or by an owner. Under certain circumstances reciprocal negative covenants or restrictions may be implied. None was pleaded in the present case and the circumstances required to apply that doctrine are not decisive here. See Campbell v. Stout, 408 S.W.2d 585, 589 (Mo.App.1966). The burden of proof rests with the proponent of the application of a restriction. Missouri Province Educational Institute v. Schlecht, 322 Mo. 621, 15 S.W.2d 770, 773 (1929).
We find that the adoption of the 1967 Declaration of Restrictions by defendant Continental and recorded in the land records of Warren County on April 26, 1978, prospectively rendered the lots then owned by it subject to the 1967 restrictions. Defendant Continental acted as a grantor-owner-developer of the lots it then owned. As to these lots defendant was a seller, not a user. The restrictions provide that the developer reserves the right to assign its rights, powers, reservations and privileges and Continental became a successor developer. "Owners" subject to assessment were defined to be persons who purchased from the developer. The developer was not, by the terms of the restrictions, an "owner" for purposes of membership in the plaintiff association. A strict construction of the restrictions leads us to the conclusion that defendant Continental is not personally liable for the assessments. This is consistent with plaintiff association's non-assessment of IIT Missouri Corporation as an owner-developer of other lots in Plats 32-34 and in lots in the original subdivision development. Defendant Continental was never an owner-purchaser as defined by the restrictions, whose direct interest was intended to benefit from the assessments in issue as a residential user.
*376 We remand for further proceedings not inconsistent with this opinion.
SIMON, P.J., and KAROHL, J., concur.
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In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1268
RWJ M ANAGEMENT C OMPANY,
INCORPORATED , et al.,
Plaintiffs-Appellees,
v.
BP P RODUCTS N ORTH A MERICA,
INCORPORATED , et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 C 6141—Rebecca R. Pallmeyer, Judge.
A RGUED S EPTEMBER 8, 2011—D ECIDED F EBRUARY 16, 2012
Before E ASTERBROOK, Chief Judge, and B AUER and
S YKES, Circuit Judges.
S YKES, Circuit Judge. This appeal arises out of conten-
tious commercial litigation between BP Products North
America (“BP”) and two owner-operators of BP-franchise
gasoline and convenience stores in the greater Chicago
area. Begun as two separate actions in Cook County
2 No. 11-1268
Circuit Court, the cases were consolidated because
they alleged identical claims under state franchise law
stemming from BP’s transition from company-owned
stores to a franchise system. The litigation has been
plagued by frequent changes in the claims for relief.
When the franchise owners added a claim under the
federal Petroleum Marketing Practices Act (“PMPA”),
BP promptly removed the case to federal court. Exten-
sive discovery followed, and in a fourth amended com-
plaint, the franchise owners added a claim based on
the Robinson-Patman Act.
By the eve of trial, however, all the federal claims
were withdrawn, leaving only claims under Illinois
law and one under Indiana law. With the federal claims
gone, the district judge relinquished supplemental juris-
diction and remanded the case to Illinois state court.
See 28 U.S.C. § 1367(c)(3). BP appealed, arguing that
the case should have remained in federal court because
the judge had sunk significant time into the case and
was familiar with its history and facts, and because
trial was to begin in just a few days.
We affirm. When federal claims drop out of the case,
leaving only state-law claims, the district court has
broad discretion to decide whether to keep the case or
relinquish supplemental jurisdiction over the state-
law claims. A general presumption in favor of relinquish-
ment applies and is particularly strong where, as here,
the state-law claims are complex and raise unsettled
legal issues. In certain limited circumstances, a sub-
stantial investment of the federal court’s time may over-
No. 11-1268 3
come the presumption, although we defer to the district
court’s judgment about when that threshold has been
crossed. Here, the judge weighed the relevant factors
and decided that the time she had spent on the case,
though substantial, was not sufficiently related to the
substance of the state-law claims to justify keeping
the case in federal court. This was not an abuse of discre-
tion.
I. Background
Starting in 2006, BP began converting many of its
company-operated gas and convenience stores into
franchisee-operated stores. From 2006 to 2008, companies
controlled by Robert W. Juckniess, d/b/a RWJ Manage-
ment Company, Inc. (“the RWJ plaintiffs”), purchased
nine gas-station sites in the greater-Chicago area and one
in northern Indiana; companies controlled by Nrupesh
Desai (“the Desai plaintiffs”) purchased seven sites in
Chicago. As part of each deal, the companies entered
into long-term contracts with BP for BP-supplied fuel
and the use of BP’s brand name and marks.
In July 2009 the RWJ plaintiffs sued BP in Illinois state
court alleging violations of the Illinois Franchise Dis-
closure Act. That same month the Desai plaintiffs filed
suit making the same allegations, and the cases were
consolidated in Cook County Circuit Court. When the
plaintiffs sought leave to file an amended complaint
alleging violations of the PMPA, BP removed the con-
solidated cases to federal court.
4 No. 11-1268
Discovery ensued, but did not proceed smoothly.
During the next 15 months, the district court held 35
hearings, issued 45 orders, and considered 70 motions.
The parties compiled 21 volumes of discovery material.
Along the way the judge held that the Desai plaintiffs
had violated discovery rules and several court orders,
but withheld judgment on the specific sanction. In a
series of amended complaints, the plaintiffs shifted
their claims for relief, adding a discriminatory-pricing
claim under the Robinson-Patman Act and dropping
their PMPA claim. A two-week trial on both the state
and federal claims was scheduled to begin on January 18,
2011. Most of the claims would be tried to the court;
the plaintiffs failed to preserve their jury-trial right on
all but a single claim under Indiana franchise law re-
garding the station in northern Indiana.
At a pretrial hearing on January 7, 2011, the plaintiffs
informed the court that they would not be pursuing
their Robinson-Patman Act claim after all. The judge
dismissed that claim. On January 12 the judge issued a
short, tentative order regarding the parties’ summary-
judgment motions, reserving a final ruling until trial. At
a hearing that same day, the judge observed that all
the federal claims had fallen out of the case and noted
the presumption in favor of relinquishing jurisdiction
over the remaining claims to state court. The judge
asked the parties if there was any reason to keep the
case in federal court. BP urged the judge to retain the
case, given the unique knowledge of the facts and legal
issues she had acquired based on her year-long custody
of the matter.
No. 11-1268 5
On January 13 the judge relinquished jurisdiction and
remanded the case to state court. The judge relied on
the presumption favoring remand and noted that her
pretrial rulings in the case were not primarily focused on
substantive legal issues relating to the state-law claims.
BP appealed.
II. Discussion
The supplemental-jurisdiction statute provides that
the district court “may decline to exercise supplemental
jurisdiction” over state-law claims if the court “has dis-
missed all claims over which it has original jurisdiction.”
28 U.S.C. § 1367(c)(3). Because the choice is committed
to the district court’s judgment, we review only for an
abuse of discretion. Williams Elecs. Games, Inc. v. Garrity,
479 F.3d 904, 906 (7th Cir. 2007).
Although the decision is discretionary, “[w]hen all
federal claims in a suit in federal court are dismissed
before trial, the presumption is that the court will relin-
quish federal jurisdiction over any supplemental state-
law claims.” Al’s Serv. Ctr. v. BP Prods. N. Am., Inc.,
599 F.3d 720, 727 (7th Cir. 2010). The presumption is
rebuttable, “but it should not be lightly abandoned, as it
is based on a legitimate and substantial concern with
minimizing federal intrusion into areas of purely state
law.” Khan v. State Oil Co., 93 F.3d 1358, 1366 (7th
Cir. 1996); see also Huffman v. Hains, 865 F.2d 920, 923
(7th Cir. 1989) (“[R]espect for the state’s interest in ap-
plying its own law, along with the state court’s greater
6 No. 11-1268
expertise in applying state law, become paramount con-
cerns.”).
We have identified certain circumstances that may
displace the presumption, namely:
(1) the statute of limitations has run on the pendent
claim, precluding the filing of a separate suit in
state court; (2) substantial judicial resources have
already been committed, so that sending the case to
another court will cause a substantial duplication
of effort; or (3) when it is absolutely clear how the
pendent claims can be decided.
Sharp Elecs. Corp. v. Metro. Life Ins. Co., 578 F.3d 505, 514-15
(7th Cir. 2009) (internal quotation marks omitted). The
district court’s evaluation of these case-specific factors
is entitled to substantial deference; we will reverse a
district court’s decision to relinquish supplemental juris-
diction “ ‘only in extraordinary circumstances.’ ” Contreras
v. Suncast Corp., 237 F.3d 756, 766 (7th Cir. 2001) (quoting
Disher v. Info. Res., Inc., 873 F.2d 136, 140 (7th Cir. 1989));
see also Kennedy v. Schoenberg, Fisher & Newman, Ltd.,
140 F.3d 716, 728 (7th Cir. 1998) (A district court’s deci-
sion to relinquish supplemental jurisdiction is “almost
unreviewable.”).
This case focuses entirely on considerations of judicial
economy and potential duplication of judicial effort. BP
contends that the district court invested so much time
superintending this litigation that the presumption in
favor of relinquishment has been overcome. The district
court is the best judge of that; our review examines only
whether the court made “a considered determination
No. 11-1268 7
of whether it should hear the claims.” Miller v. Herman,
600 F.3d 727, 738 (7th Cir. 2010). Here, the judge con-
sidered the relevant factors and determined that her
work on the case was not so enmeshed in substantive
issues of state law that the presumption in favor of
remand should be set aside. That decision makes
sense—especially where, as here, the claims remaining
in the case include complex common-law business torts
and claims for violation of state statutory franchise law.
BP relies heavily on Miller Aviation v. Milwaukee County
Board of Supervisors, 273 F.3d 722 (7th Cir. 2001), in which
we reversed a district court’s decision to relinquish sup-
plemental state-law claims to state court for reasons
of judicial efficiency:
The judicial resources expended by the district court
in this case are considerable. The district court spent
more than five years overseeing this multifaceted
litigation. During this time, the district court consid-
ered 22 motions, held 9 hearings, and issued 19 orders,
including the 71-page decision presently before us
on appeal. Additionally, the district court’s orders
demonstrate a mastery of the minutiae of airport
administration, aviation commerce, as well as the
inner workings of the various decision-making pro-
cesses within Milwaukee County’s government. For
these reasons, we conclude that a remand of the
remaining supplemental claims would require a
“duplication of effort” by the state court that under-
mines the very purpose of supplemental jurisdic-
tion—judicial efficiency.
Id. at 732.
8 No. 11-1268
The district court thought that Miller Aviation was
distinguishable, and we agree. On the one hand, there’s
no question that these proceedings have been pro-
tracted. The district court held 35 hearings, considered
70 motions, and issued 45 orders, which on a numerical
basis exceeds the district court’s work in Miller Aviation.
On the other hand, only one of the district court’s
rulings was substantive. In her order relinquishing juris-
diction, the judge noted that she had issued only a 10-
page tentative ruling on the motions for summary judg-
ment, whereas in Miller Aviation, the district judge had
written “an exhaustive 71-page memorandum and order.”
Id. at 726. And this case has been in federal court just over
fifteen months; in Miller Aviation the federal litigation
consumed five years.
Evaluating considerations of judicial efficiency and
duplication of judicial effort is not just a matter of toting
up months or motions or the page counts of judicial
orders. Rather, concerns about judicial economy have
their greatest force when significant federal judicial
resources have already been expended to decide the
state claims, or when there is no doubt about how
those claims should be decided. Dargis v. Sheahan, 526
F.3d 981, 990-91 (7th Cir. 2008); Wright v. Associated Ins.
Cos. Inc., 29 F.3d 1244, 1251 (7th Cir. 1994).
Here, the extensive pretrial activity was largely attribut-
able to discovery disputes, not the merits of the state-
law claims. In Miller Aviation, by contrast, the state and
federal claims were substantively entangled. And the
resolution of the state claims in this case is far from clear.
No. 11-1268 9
This litigation has seen five amended complaints and
raises challenges under Illinois statutory and common
law to the entire franchising system of a major company.
Moreover, the Illinois franchise-law claims in particular
are not the subject of a well-developed body of prece-
dent. We have said that where the relevant state law is
unsettled, the presumption in favor of relinquishment
is particularly strong. See Hansen v. Bd. of Trs., 551 F.3d
599, 608-09 (7th Cir. 2008); Coe v. Cnty. of Cook, 162 F.3d
491, 496 (7th Cir. 1998).
BP raises two additional factors specific to this case that
it claims weigh heavily in favor of keeping the case in
federal court. First, because one of the RWJ gas stations
is located in northern Indiana, remanding to state court
means that an Illinois judge will be required to apply
Indiana law. Second, BP notes that the district court
did not completely resolve the issue of discovery sanc-
tions; an Illinois judge will have to decide this federal
procedural question as well.1 These factors, though rele-
1
The supplemental jurisdiction statute permits the district
court to decline to exercise jurisdiction over supplemental
“claims.” 28 U.S.C. § 1367(a). Perhaps the district court might
have retained jurisdiction for the limited purpose of concluding
the discovery-sanctions issue while relinquishing jurisdiction
over the state-law claims. We need not address the matter
here. It appears the judge overlooked the fact that she had not
fully resolved the discovery-sanctions issue. This omission
does not persuade us that the decision to remand was an
abuse of discretion.
10 No. 11-1268
vant, do not convince us that the district court abused
its discretion. The Illinois courts are fully capable of
applying Indiana law and resolving the outstanding
issue of which discovery sanctions are appropriate.
Now that the federal claims are gone, the center of gravity
in the case has shifted to Illinois franchise and tort law;
these are issues ideally decided by an Illinois judge ap-
plying Illinois law.
Finally, BP complains that the case was remanded
to state court just two business days before the two-
week trial was scheduled to commence. As the dis-
trict court held in its written order, however, that fact
is insufficient to overcome the presumption in favor
of remand. We have upheld district court orders relin-
quishing supplemental claims “just before trial after five
years of discovery.” Olive Can Co., Inc. v. Martin, 906
F.2d 1147, 1153 (7th Cir. 1990) (emphasis added); see
also Myers v. Cnty. of Lake, Ind., 30 F.3d 847, 848 (7th
Cir. 1994) (“[D]ismissal of the federal claim on the eve
of trial is not by itself sufficient to justify resolving
the remaining claims in federal court.” (citing Olive
Can Co., 906 F.2d at 1153)). The fact that the trial was
near is not enough to displace the presumption in favor
of remand.
In short, we find no abuse of discretion. While BP
claims “the case should remain in federal court be-
cause the district judge was familiar with both the
facts and the law of the case and the parties have un-
dertaken discovery, these considerations are not
adequate to make us ‘second-guess’ the district court’s
No. 11-1268 11
decision to relinquish jurisdiction.” 2 Kennedy, 140 F.3d
at 728.
A FFIRMED.
2
BP moved for leave to supplement the record with certain
materials filed in state court following remand—in particular,
the Desai plaintiffs’ proposed sixth amended complaint pur-
porting to add a federal civil-rights claim. The state-court
docket reflects that this amendment has been denied. We
deny the motion to supplement the record.
2-16-12
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FILED
NOT FOR PUBLICATION
NOV 16 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS KNICKMEYER, No. 16-15740
Plaintiff-Appellant, D.C. No.
2:14-cv-00231-JCM-PAL
v.
STATE OF NEVADA ex rel. EIGHTH MEMORANDUM*
JUDICIAL DISTRICT COURT,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted October 12, 2017**
San Francisco, California
Before: TASHIMA and BYBEE, Circuit Judges, and LEITMAN,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Matthew Frederick Leitman, United States District
Judge for the Eastern District of Michigan, sitting by designation.
Appellant Thomas Knickmeyer (“Knickmeyer”) worked as a marshal for the
Eighth Judicial District Court in Clark County, Nevada (the “EJDC”). During
2012 and 2013, the EJDC received a number of complaints alleging that
Knickmeyer had committed misconduct. The alleged misbehavior included
misogynistic comments, inappropriately touching prisoners, disparaging his
supervisors, and falling asleep during a calendar call. The EJDC investigated the
complaints, found them to have merit, and terminated Knickmeyer’s employment
in November 2013.
Knickmeyer thereafter filed this civil action against the State of Nevada (the
“State”) challenging his working conditions and his termination as violations of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. He alleged,
among other things, that his supervisor subjected him to a racially hostile
workplace environment and that he was terminated in retaliation for reporting
racial discrimination internally and to the Nevada Equal Rights Commission (the
“NERC”).
The district court granted summary judgment in favor of the State on both of
Knickmeyer’s Title VII claims.1 The district court held that Knickmeyer’s hostile
1
Knickmeyer does not pursue on appeal his claim that his termination was
in direct violation of Title VII.
2
work environment claim failed because Knickmeyer did not present sufficient
evidence that he was subjected to severe or pervasive race-based harassment. The
court also held that Knickmeyer’s retaliatory discharge claim failed because
Knickmeyer did not present sufficient evidence that his protected activity was a
but-for cause of his termination. Knickmeyer appeals, and we affirm.
In order to prevail on his hostile work environment claim, Knickmeyer was
required to show, among other things, that the alleged harassment “was sufficiently
severe or pervasive to alter the conditions of [his] employment and create an
abusive work environment.” Kang v. U. Lim Am., Inc., 296 F.3d 810, 817 (9th Cir.
2002) (quotations omitted). He failed to do so. The comments he complained of
were isolated in nature, and “[s]imply causing an employee offense based on an
isolated comment is not sufficient to create actionable harassment under Title VII.”
McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1113 (9th Cir. 2004) (citation
omitted). Knickmeyer also presented hearsay statements in support of his hostile
work environment claim, which the district court properly disregarded. See Beyene
v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988) (“[O]nly
admissible evidence may be considered by the trial court in ruling on a motion for
summary judgment.”).
3
The State was likewise entitled to summary judgment on Knickmeyer’s
retaliatory discharge claim. As the district court properly concluded, Knickmeyer
did not present sufficient evidence that his protected activity – filing
race-discrimination complaints internally at the EJDC and with the NERC – was a
“but-for” cause of his termination. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133
S.Ct. 2517, 2533 (2013); Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001) (considering causation in the context of a retaliation claim by reference to
the time “between an employer’s knowledge of protected activity and an adverse
employment action”) (emphasis added). Knickmeyer failed to show that his
protected activity and his termination were so close as to support an inference of
but-for causation.
Knickmeyer also argued that other allegedly suspicious timing supported an
inference of but-for causation. But the fact that he was not fired until October
2013 is more plausibly explained by the fact that the EJDC spent many months
carefully investigating the allegations against him.
Finally, during post-termination arbitration proceedings, Knickmeyer
testified that he believed he was fired because of his political incorrectness. This
testimony precludes a finding that his protected activity was a but-for cause of his
termination.
4
The judgment of the district court is AFFIRMED.
5
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254 F.3d 342 (1st Cir. 2001)
ZEESHAN MANZOOR, Petitioner,v.UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION & NATURALIZATION SERVICE RESPONDENTS.
No. 00-1971
United States Court of Appeals for the First Circuit
Heard February 8, 2001Decided June 26, 2001
ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS[Copyrighted Material Omitted]
Madeline G. Compton for petitioner.
Lyle D. Jentzer, Attorney, Office of Immigration Litigation, Civil Division, with whom David W. Ogden, Assistant Attorney General, Civil Division, and Terri J. Scadron, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for appellee.
Before Selya, Lynch, and Lipez, Circuit Judges.
LIPEZ, Circuit Judge.
1
Zeeshan Manzoor petitions for relief from the denial of his claims for asylum and withholding of deportation. To qualify for asylum, an applicant must show that he or she faces a well-founded fear of persecution. The Board of Immigration Appeals (BIA or Board) found that Manzoor had experienced past persecution in his native Pakistan on account of his political opinion, giving rise to a statutory presumption of a well-founded fear of future persecution. The burden then shifts to the Immigration and Naturalization Service (INS) to rebut that presumption. Here the BIA erred by imposing part of the INS's burden on the applicant. It did so by requiring Manzoor to establish that his well-founded fear of future persecution was country-wide after he had shown that he was persecuted in a particular region, possibly with some involvement by the federal government. Because of that legal error, we vacate the judgment of the BIA and remand for further proceedings.
I.
2
We summarize Zeeshan Manzoor's testimony, which the BIA found credible. Manzoor is a 24-year-old native of Karachi, a city in the Sindh province of Pakistan. He is an ethnic Mohajir, a group defined as the native Urdu-speaking descendants of those who immigrated to Pakistan when India was partitioned in 1947-48.
3
Manzoor said that he is a member of the Mohajir Quami Movement (MQM). According to reports by the U.S. State Department and Amnesty International, the MQM was founded in 1984 by Mohajirs who felt disadvantaged in relation to native Sindhis. The same reports explain that a faction called the Haqiqi split off from the main MQM, now sometimes called the MQM(A), in the early 1990s. Both the State Department and Amnesty International say that relations between the Haqiqi and MQM(A) are tense and have led to political violence and killing.
4
Manzoor testified that Haqiqi workers kidnaped him in 1996 and again in October 1997 and that shots were fired at his father's house. Manzoor said that his family did not report these incidents to the Pakistani police because the police sometimes exchange information with the Haqiqi. After Manzoor escaped from the second kidnaping, his father arranged for him to leave Pakistan. Manzoor waited two months for a visa. He said he had to cancel his departure three times because the Pakistani police and immigration service had his name listed as an active MQM(A) member. In February 1998, he paid a bribe to facilitate his departure and left Pakistan. Manzoor traveled to Paris and the Dominican Republic. On February 17, 1998, the U.S. Coast Guard caught him trying to enter Puerto Rico illegally by boat.
5
After being caught, Manzoor told authorities that he would be killed by Haqiqi members or members of the Pakistan People's Party if he were returned to Pakistan. An asylum pre-screening officer interviewed Manzoor and determined that his testimony was sufficiently credible to warrant a hearing before an immigration judge. Manzoor was also charged with being subject to removal from the United States under 8 U.S.C. § 118(a)(7)(A)(i)(I).1 At a hearing on July 22, 1998, Manzoor admitted the allegations against him, conceded removability, and requested asylum and withholding of removal. The immigration judge found Manzoor removable as charged but granted him a continuance to allow him to submit an asylum application. When Manzoor filed the application, the judge forwarded it to the State Department for an advisory opinion about conditions in Pakistan.
6
On October 22, 1998, after receiving the State Department's country profile of Pakistan, the judge held a hearing on the merits of Manzoor's asylum petition. As recounted here, Manzoor testified about his membership in the MQM, the kidnapings, and his flight from Pakistan. The judge asked Manzoor if he had considered moving to a different part of Pakistan. Manzoor said: "I could not go to another area . . . . Because you, require identity card and I don't have identity card, because if I go to Karachi by road, they have a check post, and because I speak Urdu, they'll [turn me] over to MQM Haqiqi, and they'll kill me." When the judge asked him if he could travel by airplane, Manzoor responded: "This is not possible . . . . Because on airport there is police and then there is MQM Haqiqi people all [over] airline station, so they'll get hold of us." The judge did not ask the INS any questions about whether the persecution of MQM members is limited to Sindh province.
7
In her oral decision of November 18, 1998, the judge denied Manzoor's request for asylum and withholding of removal. The judge said that Manzoor's testimony was "vague," "unpersuasive," not corroborated, and inconsistent with the State Department country profile. She found that Manzoor had not established persecution by the Pakistani government or by a faction that the government could not control. In addition, relying on the country profile of the State Department, the judge said that there were no credible reports of harassment and abuse of MQM members outside of Sindh province, and that Manzoor could therefore relocate to a different part of Pakistan.
8
Manzoor appealed to the BIA, which issued its opinion in the matter on July 10, 2000. The BIA said that the immigration judge "did not explicitly find the respondent's testimony not to be credible," and that it was thus "difficult to defer" to the judge's findings. The Board said that after reviewing the transcript of Manzoor's testimony, it could find no "support in the record for an adverse credibility finding." Instead, the Board found Manzoor's account to be "detailed and consistent," and said that his "testimony and supporting documentation, especially regarding the political climate in Pakistan and the activities of the MQM vis-a-vis other political parties, are consistent with the country profile prepared by the Department of State." As a result, the BIA found Manzoor's testimony credible. The BIA also said that it "agree[d] with the respondent's contention on appeal that the Immigration Judge failed to fully consider the documentary evidence provided by the respondent." In light of Manzoor's testimony and supporting documentation, the BIA found that Manzoor "was persecuted on account of his political opinion" and stated that because Manzoor had "demonstrated past persecution, he is presumed to have a well-founded fear of future persecution."
9
Despite these findings, the BIA denied Manzoor's request for asylum and withholding of deportation on the ground that Manzoor failed to show that the threat of persecution existed country-wide. A majority of the panel found that "while the record clearly indicates that conditions in Karachi continue to be dangerous for members of the MQM, the record reflects that MQM members are able to live safely outside of the Sindh province." A dissenting board member took a different view of the evidence:
10
The record indicates that the MQM-Haqiqi are in collusion with both the federal government and the military in Pakistan. This cooperative relationship, when coupled with the pervasive military and police presence throughout Pakistan, makes it unlikely that the respondent will be able to return to a different location within Pakistan where he could successfully avoid future persecution.
II.
11
Section 208(a) of the Immigration and Nationality Act authorizes the Attorney General, in his or her discretion, to grant asylum to an alien who is a "refugee." 8 U.S.C. § 1158(a); INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). The Act defines a refugee as an alien who cannot or does not want to return to his home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). We review the BIA's legal conclusions de novo, "with appropriate deference to the agency's interpretation of the underlying statute in accordance with administrative law principles." Gailius v. INS, 147 F.3d 34, 43 (1st Cir. 1998).
12
"To qualify for asylum, the applicant must show that he actually fears persecution (a subjective issue), and that there is a 'reasonable possibility' that persecution would actually occur (an objective issue)."2 Foroglou v. INS, 170 F.3d 68, 71 (1st Cir. 1999) (quoting Ravindran v. INS, 976 F.2d 754, 758 (1st Cir. 1992)). No greater showing is required. See INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987) ("alien need not prove that it is more likely than not that he or she will be persecuted in his or her home country"). We have observed before that "Congress has not defined the term 'persecution,' and the courts thus far have failed to achieve a general consensus on its meaning and scope in this context." Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st Cir. 1999). However, we can say that while persecution is not restricted to "threats to life or freedom," it requires more than "mere harassment or annoyance." Id. at 570 (citing INS v. Stevic, 467 U.S. 407, 428 n.22 (1984); Balazoski v. INS, 932 F.2d 638, 642 (7th Cir. 1991)). Courts make case-by-case determinations of what constitutes a well-founded fear of persecution within these "broad margins." Id.
13
In this case, the BIA determined that Manzoor had suffered past persecution on account of his political opinion. The Board based this conclusion on Manzoor's testimony that the Haqiqi twice kidnaped him because of his affiliation with MQM(A), and on the support for Manzoor's description of the tension between the Haqiqi and MQM(A) in the State Department country profile. A "finding of past persecution triggers a regulatory presumption that the applicant has a well-founded fear of future persecution, provisionally establishing the applicant's refugee status and eligibility for asylum." Fergiste v. INS, 138 F.3d 14, 18 (1st Cir. 1998) (citing 8 C.F.R. 208.13(b)(1)(i) (1997)).
14
The BIA recognized this principle. However, the Board then said that "[a]n alien seeking to meet the definition of refugee must have more than a well-founded fear of persecution in a particular place within a country . . . rather he must show that the threat of persecution exists country-wide." The Board thus placed an additional burden on Manzoor to show that his fear was based on a threat of country-wide persecution. After considering the applicant's testimony and documentation and the State Department country profile, the Board concluded that "the conditions in Pakistan, on a country-wide basis, are not such that the respondent would have a well-founded fear of returning there."
15
In support of its burden-of-proof allocation, the BIA cited In Re C-A-L, 21 I. & N. Dec. 754 (BIA 1997). In that case, the BIA denied an asylum claim because, among other things, the applicant "ha[d] not provided any convincing evidence to suggest that his fear of persecution would exist throughout Guatemala." C-A-L, 21 I. & N. 754. There are also other cases in which the Board has said that the applicant has the burden of proof to show that his or her fear of persecution is country-wide.3 See Matter of R, 20 I. & N. Dec. 621, 625 (BIA 1992); Matter of Acosta, 19 I. & N. Dec. 211, 235 (BIA 1985) ("an alien seeking to meet the definition of a refugee must do more than show a well-founded fear of persecution in a particular place or abode within a country--he must show that the threat of persecution exists for him country-wide").
16
The BIA is correct that the applicant has the burden of proof to show that he is a refugee. See 8 C.F.R. § 208.13(a) (1997); Ravindran v. INS, 976 F.2d 754, 758 (1st Cir. 1992). But nothing in the regulations that were in place when the BIA denied Manzoor's claims supports the Board's determination that an applicant who has established a well-founded fear of persecution must go on to prove that the threat of persecution is country-wide. Instead, the regulations provide that if an applicant suffered past persecution, then he or she is presumed
17
also to have a well-founded fear of future persecution unless a preponderance of the evidence establishes that since the time the persecution occurred conditions in the applicant's country . . . have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if he were to return.
18
8 C.F.R. § 208.13(b)(1)(i) (1997). The burden then is on the INS to rebut the presumption by a preponderance of the evidence. In our view this includes the burden on the INS to show that the applicant could reasonably avoid persecution by relocating to another part of the country. While we think that was the plain import of the law at the time of the applicant's hearing, a recent amendment to the regulations appears to explicitly allocate the burden of proof to the INS.4 In addition, two circuits have already made this point when the applicant showed that the past persecution was by the government of the country. See Singh v. Ilchert, 63 F.3d 1501, 1510 (9th Cir. 1995); Abdel-Masieh v. INS, 73 F.3d 579, 587 (5th Cir. 1996).
19
While the BIA's interpretation of the regulations is entitled to "appropriate deference," Gailius, 147 F.3d at 43, that deference cannot save an interpretation that is at odds with "unambiguous provisions that permit of no conflicting interpretations." Ilchert, 63 F.3d at 1510. The INS cannot impose an evidentiary burden on the applicant that is not provided by and appears to be inconsistent with the statute or regulation. We thus find that the BIA erred in allocating the burden of proof to Manzoor to show that the threat of persecution was country-wide. Under the regulations that were in place when the BIA ruled, once an alien has shown that he has a well-founded fear of persecution in his home country, the INS has the burden to prove by a preponderance of the evidence that the threat is limited to a particular region.
20
In this case, the INS submitted no evidence in support of the claim that Manzoor's fear of the Haqiqi was based only on a threat of persecution in Sindh province. Instead, the BIA relied on the State Department country profile obtained by the immigration judge, which said that "resettlement outside Sindh province is a viable alternative for most MQM members except for those facing serious charges and where enforcement of the arrest warrant is more likely." The Board found the State Department's conclusion about the viability of resettlement to be "uncontradicted by the respondent's testimony and documentation." Citing its own precedent, Matter of T-M-B, 21 I. & N. Dec. 775, 779 (BIA 1997), the Board said the State Department opinion was owed "'considerable deference' in the absence of contradictory evidence." We have said, however, that "the advice of the State Department is not binding, either on the service or on the courts." Gailius, 147 F.3d at 46 (quoting Gramatikov v. INS, 128 F.3d 619, 620 (7th Cir. 1997)). "This is both because it is the Attorney General, not the Secretary of State, whom Congress has entrusted with the authority to grant asylum and because 'there is perennial concern that the [State] Department softpedals human rights violations by countries that the United States wants to have good relations with.'" Id. (quoting Gramatikov, 128 F.3d at 620); see also Hengan v. INS, 79 F.3d 60, 62-63 (7th Cir. 1996)(immigration officials may give greater weight to the views of human rights organizations than to the State Department).
21
Moreover, contrary to the Board's conclusion, Manzoor presented evidence contrary to the State Department country profile on the possibility of persecution outside Sindh province. True, the Amnesty International reports focus on Sindh province in describing political conflict involving the MQM. But Amnesty International also notes that "[d]eaths in custody and extrajudicial killings are reported from other parts of the country as well." While there is no explicit reference to killings of MQM members outside Sindh, it is clear from the text as a whole that the report focuses on Sindh because "nowhere have deliberate and arbitrary killings reached as massive a scale as in Karachi" rather than because Amnesty International has ruled out the possibility that MQM members face persecution in other parts of Pakistan. The proper allocation of the burden of proof on the country-wide issue is particularly important when there is contradictory or ambiguous evidence about it.
22
Also, both Amnesty International and the State Department describe government involvement in the political conflict that has led to the deaths of MQM members. Indeed, as the dissenting panel member recognized, Amnesty International cites collaboration between the government and the Haqiqi that includes federal government officials as well as local and provincial officials in Sindh.5 Before us, the INS contends that the collaboration between the Haqiqi and the government is limited to Sindh province. That is not clear from the record, however, and the issue can be explored on remand. In addition, although we do not decide the issue, we note that the Fifth and Ninth Circuits, as well as the BIA on one occasion, have found that evidence of such government involvement in the persecution of a political group weighs heavily against the conclusion that an alien's demonstrated well-founded fear of persecution is not country-wide.6
III
23
For the reasons stated, the order of the BIA is vacated, and the case is remanded to the BIA for further proceedings consistent with this opinion.7
Notes:
1
The statute forbids entry to the United States when an applicant for admission lacks a valid immigrant visa or entry document. See 8 U.S.C. § 118(a)(7)(A)(i)(I).
2
To establish that he or she is entitled to withholding of deportation, an applicant must demonstrate a "clear probability of persecution." INS v. Stevic, 467 U.S. 407, 413 (1984). This standard "requires a more rigorous showing" than the standard for an asylum claim. Velasquez-Valencia v. INS, 244 F.3d 48, 50 n.1 (1st Cir. 2001).
3
We note, however, that the facts in these cases are distinguishable from the case at hand. In C-A-L, for example, the asylum applicant was a Guatemalan soldier who had been captured by guerrillas. The BIA found that the applicant's "problems were confined to his hometown" on the basis of a State Department report that said that the guerrillas were "concentrated in remote areas with large Indian populations." 21 I. & N. Dec. 754. According to Manzoor's evidence, the Haqiqi were not rebels but rather operated with government support.
4
The new regulations state: "In cases in which an applicant has demonstrated past persecution . . . the Service shall bear the burden of establishing by a preponderance of the evidence" that "[a]n applicant does not have a well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant's country of nationality . . . if under all the circumstances it would be reasonable to expect the applicant to do so." 8 C.F.R. § 208.13(b)(1)(ii) and (b)(2)(ii) (2000).
5
The 1998 Amnesty International report states: "According to many commentators in Pakistan, [the Haqiqi] faction was supported by successive federal governments and the military to weaken the main MQM." The 1996 report states: "The ongoing conflict in Karachi has involved mainly two factions of the . . . MQM . . . [and] the federal and the provincial governments of different complexions."
6
See Abdel-Masieh, 73 F.3d at 587 ("that an alien . . . might be safe from persecution by the national government in other areas of the nation . . . does not suffice to show that the alien lacks the requisite fear of persecution"); Ilchert, 63 F.3d at 1511 ("This court presumes that in a case of persecution by a governmental body such as a national police force, the government has the ability to persecute the applicant throughout the country."); Singh v. Moschorak, 53 F.3d 1031, 1034 (9th Cir. 1995) ("It has never been thought that there are safe places within a nation when it is the nation's government that has engaged in the acts of punishing opinion that have driven the victim to leave the country."); In Re Kasinga, 21 I. & N. Dec. 357 (BIA 1996) (finding applicant's fear of persecution to be country-wide in part because the Togo police tolerate violence against women and the government has a poor human rights record).
7
Because of our disposition of Manzoor's asylum claim, we do not reach Manzoor's appeal of the denial of withholding of deportation. Gailius, 147 F.3d at 47 n.9.
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216 Miss. 54 (1952)
61 So.2d 672
12 Adv. S. 21
GILLIAM
v.
SYKES, et al.
No. 38551.
Supreme Court of Mississippi.
December 15, 1952.
Sims & Sims, for appellant.
*57 Roger C. Landrum and Snow & Covington, for appellees.
*58 HOLMES, J.
The appellant, as plaintiff below, brought this suit in the Circuit Court of Lowndes County against James Sykes and Evelyn Sykes as the alleged owners and operators of the Sykes Cabs, and against Jessie Lee Howard, to recover damages to his automobile and actual and punitive damages for personal injuries alleged to have been caused by the negligence of the defendants. The suit grows out of a collision of an automobile owned by the appellant, and driven at the time by the appellant, and a taxicab belonging to the Sykes Cabs, and driven at the time by Jessie Lee Howard as the servant, agent, and employee of the Sykes Cabs. Two separate suits were filed by the appellant, one for the recovery of damages to his automobile, and one for the recovery of actual and punitive damages for personal injuries, and both arising out of the same collision. By agreement of the parties, the two suits were consolidated and tried as one suit. A motion for a directed verdict as to the defendant, James Sykes, was sustained, since the evidence without dispute showed that Evelyn Sykes was the sole owner and operator of the Sykes Cabs and that the said James Sykes had no interest therein and no interest in, or control over, the taxicab involved, and no control of, or relationship with the driver thereof. At the conclusion of the evidence, the case was submitted to the jury under instructions which left to the jury the determination of the question of the negligence vel non of the respective parties and resulted in a verdict in favor of appellant for $648.29. Judgment was accordingly entered for the appellant *59 and against the appellees, Evelyn Sykes and Jessie Lee Howard. From this judgment the appellant appeals. There is no direct or cross-appeal by the appellees.
The collision occurred about six miles west of Columbus on what is known as the old West Point public road, a county public road extending in an east and west direction, and hereinafter referred to as the main road. The road is a graveled road about 22 feet in width. At the place of collision the appellant owned farm land on either side of the road. A private or plantation road entered the main road from the south. On the occasion in question, the appellant was driving his automobile on the private road proceeding in a northerly direction, with a view of entering and turning east on the main road, and, according to the versions of the respective parties, had entered and turned east on his left hand side of the main road and was proceeding along his left hand side of said road, or had just entered and crossed to the north side of the center of said road, and was in the act of completing his turn east, when the collision occurred.
According to the testimony of the appellant and his witnesses, he had entered the main road and turned east thereon and was proceeding at a slow rate of speed and had travelled about 25 feet when the appellee, Jessie Lee Howard, driving the taxicab, approached him from the east travelling west at a rate of speed of about 75 miles per hour and on the wrong side of the road, and collided with his car, knocking it a distance of about 75 feet west and badly damaging the front thereof and inflicting personal injuries upon the appellant.
According to the testimony of Jessie Lee Howard and other witnesses for the appellees, Howard was driving west on the right hand side of the main road at a rate of speed of 35 or 40 miles per hour, and as he approached the intersection of the main road and the private road, the appellant drove into the main road and to the north side thereof, and was in the act of turning east in the path of the approaching taxicab when the driver of the *60 taxicab applied his brakes, but was unable to stop in time to avoid the collision.
The proof showed that the repair bill on appellant's automobile was $648.29. The appellant's proof as to his injuries showed that his knee, hip, and arm were injured and that he received a lick on his head and suffered several abrasions, and was hospitalized for four days and continued under the treatment of a doctor; that while he had previously suffered from arthritis, his condition was inactive, and the injuries received in the collision had activated his arthritic condition. The appellees offered proof to show that the appellant complained of no injuries immediately following the collision and that his arthritic condition had existed long prior to the collision.
No instruction was requested by either party seeking to authorize the jury to apply our comparative negligence statute (Sec. 1454, Code of 1942), which statute diminishes damages proportionate to the amount of negligence attributable to the person injured.
The sole contention of appellant is that the verdict is contrary to the evidence in that the jury's award was for the damages to appellant's automobile only and made no award to compensate the appellant for the personal injuries and medical expenses, and that as to these items the verdict is contrary to the evidence produced as to his personal injuries, and that the trial court erred in not sustaining his motion for a new trial, and that the cause should be reversed and a new trial granted on the issue of damages only.
(Hn 1) It is readily observable that the testimony as to who was at fault in the collision was in violent conflict. Each of the drivers testified that the collision was solely caused by the negligence of the other. This would not, however, have rendered erroneous an instruction based on our comparative negligence statute, supra, had it been asked, nor would it preclude the jury from applying our comparative negligence statute. The jury was not required to accept in its entirety the theory of either party, *61 but it was the province of the jury to consider all of the testimony and the circumstances shown and to determine therefrom the negligence of the respective parties. Morrell Packing Company, et al. v. Branning, 155 Miss. 376, 124 So. 356. The jury would have been warranted in finding under the evidence that either driver was guilty of negligence solely causing the collision, or it was warranted in finding under the evidence that each was guilty of negligence proximately contributing to the collision. These were issues for the determination of the jury. (Hn 2) The jury may have found that a large part of the negligence contributing to appellant's loss and injuries was attributable to his own negligence, and it may have applied our comparative negligence statute, supra, as it had the right to do, notwithstanding no instruction to this effect had been given by the court for either party. Chapman v. Powers, 150 Miss. 687, 116 So. 609; Pounders v. Day, 151 Miss. 436, 118 So. 298. (Hn 3) It is true that the amount of the verdict corresponded exactly with the amount of the repair bill, but the jury's verdict was not designated as an award for damages to his automobile, but was a money award to compensate him for the damages he sustained. We must assume that the jury took into consideration all damages shown by the evidence to have been sustained by the appellant as a direct and proximate result of the collision, as it was authorized to do under the instructions of the court, but the jury could have found and may have found from the evidence that a large part of the negligence proximately contributing to appellant's loss and damages was his own negligence, and may have applied our comparative negligence statute, supra, in arriving at the amount of the verdict. We can not say from the verdict that the jury in arriving at the amount thereof did not take into consideration all damages shown by the evidence to have been sustained by the appellant, as well as the evidence as to the negligence of the respective parties, and then apply our comparative negligence statute in arriving at *62 the amount of the verdict. We must conclude that the amount of the verdict, even though it corresponded with the amount of the repair bill, was found by the jury to be a proper award under all of the evidence.
We are of the opinion, therefore, that the judgment of the court below should be and it is affirmed.
Affirmed.
McGehee, C.J., and Alexander, Hall, and Kyle, JJ., concur.
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885 F.2d 865Unpublished 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.Albert Junior HOLLEY, Petitioner-Appellant,v.C.R. EDWARDS, Warden, U.S. Penitentiary at Lewisburg,Pennsylvania, Mary Sue Terry, Attorney General ofthe Commonwealth of Virginia,Respondents-Appellees.
No. 89-7550.
United States Court of Appeals, Fourth Circuit.
Submitted July 31, 1989.Decided Sept. 19, 1989.
Albert Junior Holley, appellant pro se.
Henry Edward Hudson, Office of the United States Attorney, Robert H. Anderson, III, Office of the Attorney General of Virginia, for appellees.
Before K.K. HALL, SPROUSE, and CHAPMAN, Circuit Judges.
PER CURIAM:
1
Albert Junior Holley brought this 28 U.S.C. Sec. 2254 petition challenging the validity of his conviction for first degree murder and malicious maiming. After a review of the entire record including transcripts, we deny a certificate of probable cause and dismiss the appeal.
2
Holley alleged in his petition that his conviction was invalid because:
3
(a) The trial court committed reversible error by failing to advise and appoint counsel prior to several critical stages of the trial proceedings;
4
(b) The trial court erred in refusing to grant his requested preliminary hearing;
5
(c) The trial court erred in allowing into evidence an in-court identification of Holley that was tainted by an improper photographic identification and lineup;
6
(d) The loss of an exculpatory video tape of Holley's lineup violated his rights to a fair trial and due process;
7
(e) The trial court committed reversible error in denying his motion for a mistrial based on the fact that the Sheriff had been permitted to move evidence into the jury room and then be questioned by the jury out of the presence of the court and Holley; and
8
(f) The trial court committed reversible error in permitting one prosecution witness to give hearsay testimony.
9
The action was referred to a magistrate pursuant to 28 U.S.C. Sec. 636(b); the magistrate recommended that all of the claims be dismissed. He also informed Holley of his right to object to the report, and warned him that failure to object to any finding would result in waiver of appellate review of the disposition of that claim. Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984). Holley objected only to the magistrate's findings and recommendations on claims (c), (d), and (e); therefore, we do not review claims (a), (b), and (f).
10
Our review of the record and the district court's opinion discloses that the appeal is without merit as to the remaining claims, and we affirm on the reasoning of the district court. Holley v. Edwards, et al, C/A No. 87-832-N (E.D.Va., Jan. 30, 1989). We dispense with oral argument because the dispositive issues recently have been decided authoritatively.
11
DISMISSED.
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409 N.W.2d 506 (1987)
Paul H. JOHNSON, Relator,
v.
PAUL'S AUTO & TRUCK SALES, INC. and State Automobile & Casualty Underwriters, Insurer, Respondents,
Prudential Insurance Company of America, Insurer, Respondent,
Minnesota Department of Human Services, intervenor, Respondent.
No. C3-87-355.
Supreme Court of Minnesota.
July 31, 1987.
*507 Robert C. Falsani, Duluth, for appellant.
Robin D. Simpson, Curtis C. Gilmore and Michael Aafedt, Minneapolis, for Paul's Auto, et al.
James M. Christenson, Minneapolis, for Prudential Ins. Co.
Hubert H. Humphrey, III, Atty. Gen., James Alexander, Sp. Asst., St. Paul, for Minnesota Dept. of Human Services.
Heard, considered, and decided by the court en banc.
OPINION
COYNE, Justice.
Paul Johnson seeks review of a decision of the Workers' Compensation Court of Appeals affirming a denial of compensation for mental disability caused in substantial part by work-related mental stress. At issue is whether mental disability caused by mental stress without physical trauma should be compensable. Also at issue is whether physical manifestations of mental disorder constitute compensable physical injuries. We affirm.
Shortly after he graduated from high school, Paul Johnson started fixing cars. Gradually, he began selling used cars, trucks, farm equipment, lawn and garden equipment, motorcycles, and snowmobiles and leasing trucks. Johnson was deeply involved in every aspect of the business. Not only was Johnson directly responsible for a majority of the sales, but he also bought and transported used vehicles, handled customer relations, dealt with bankers, worked with the company's lawyers, did the bookkeeping, pumped gasoline, did much of the body repair and mechanical work, and mowed the grass. Johnson was an energetic, enthusiastic "workaholic" who worked seven days a week, putting in 12-14 hours on weekdays and only somewhat fewer hours on weekends. The business flourished, and as it grew Johnson moved it from a building on his parents' farm to a gasoline station and, finally, into a large modern facility. Eventually, the business employed at least a dozen employees, all of whom Johnson supervised.
In late 1976 or early 1977, Johnson's personality began to change. He seemed disoriented. Johnson's ability to handle financial transactions deteriorated, and he bungled attempts to serve customers or deal with other employees. He encountered difficulty making even minor decisions.[1]*508 Johnson also exhibited uncontrollable twitching in his face and neck, his hands shook, he sweated profusely, and his stomach hurt.
Because of his inability to manage his business effectively or to perform even the rudimentary duties of his employment, Johnson was off work from August 1977 to February 15, 1978. His attempt to resume his business activities failed. Johnson has not worked since September 27, 1978.
Johnson's treating psychiatrist, Dr. Frank Kiesler, was of the opinion that Johnson has been totally disabled since August 1977 by a chronic, generalized anxiety disorder substantially caused by job stress. Dr. Kiesler described Johnson's physical symptoms as a "patterned in" response to an overload of the nervous system, and he opined that Johnson's condition is permanent.
Dr. Charles McCafferty, who examined Johnson at the insurer's request, stated that in his opinion Johnson suffered from a personality disorder of a mixed type, and he, too, attributed Johnson's condition to job stress.
The compensation judge found that work-related stress was a substantial contributing cause of the psychiatric condition which had permanently disabled Johnson since September 27, 1978. He also found that despite the physical manifestations of his psychiatric condition, such as facial tics and hand tremors, Johnson's psychiatric condition had not resulted in physical injury, and he concluded that the disability was not compensable. The WCCA affirmed.
Larson[2] places workers' compensation claims involving mental problems into three categories: (1) cases in which mental stimulus produces physical injury e.g., Aker v. State Dep't of Natural Resources, 282 N.W.2d 533 (Minn.1979) (heart attack caused by emotional stress held compensable); (2) cases in which physical stimulus produces mental injury e.g., Dotolo v. FMC Corp., 375 N.W.2d 25 (Minn.1985) (depression resulting from work-related tinnitus held compensable); Hartman v. Cold Spring Granite Co., 243 Minn. 264, 67 N.W.2d 656 (1954) (disabling psychological problems caused by work-related back injury held compensable); and (3) cases like the present case in which mental stimulus produces mental injury. Despite the recognition that injuries in the first two categories are compensable, Minnesota denies compensation where mental stimulus produces mental injury. Lockwood v. Indep. School Dist. No. 287, 312 N.W.2d 924 (Minn.1981).
The employee contends, however, that his claim does not fall into the third category, that as a result of mental stress he has sustained a physical injury which is compensable under Aker, supra, and under Egeland v. City of Minneapolis, 344 N.W.2d 597 (Minn.1984). Those cases, however, are distinguishable. The emotional trauma suffered by Aker when he recovered two badly decomposed bodies from a remote campsite caused a fatal heart attack. The stress of a police officer's job caused both Egeland's compensable ulcer and his noncompensable depression. Aker's heart attack and Egeland's ulcer were identifiable physical ailments susceptible of discrete medical treatment, separate from and independent of treatment of the employee's emotional condition. Here, on the other hand, the employee's tics, tremors, and stomach cramps have been characterized not as independently treatable physical injuries but as physical symptoms or manifestations of employee's anxiety or personality disorder *509 and amenable to treatment only as an inseparable aspect of employee's psychiatric condition. That the presence of physical symptoms does not convert a claim based on mental injury caused by mental stress into a claim based on physical injury is illustrated by Lockwood, 312 N.W.2d 924 (work-related emotional disorder accompanied by physical symptoms weight loss, sleeplessness, and stomach cramps held noncompensable).
Employee also suggests that Lockwood be overruled. This we decline to do. We are well aware that the Lockwood decision is representative of a minority position and that its result has been the subject of some critical law review commentaries. 1B A. Larson, Workmen's Compensation Law, §§ 42.23, 42.25 (1987); Joseph, The Causation Issue in Workers' Compensation Mental Disability Cases: An Analysis, Solutions, and a Perspective, 36 Vand.L. Rev. 263, 311 (1983); Note, Workers' Compensation: Recovery for Psychological Disability Caused by Work-Related Stress, 66 Minn.L.Rev. 1194 (1982). Nevertheless, workers' compensation is a creature of statute without common law counterpart. When we decided Lockwood on the ground that compensation of mental injuries caused by employment-related mental stress through the Workers' Compensation Act was outside legislative contemplation, we expressly invited legislative consideration of the underlying policy issue. The invitation was repeated in Egeland. Despite a major revision of the Workers' Compensation Act in 1983 and further amendment in each subsequent legislative session, the legislature has given no indication of an intent to make mental injury caused by work-related mental stress a compensable personal injury within the coverage of the Act. We understand, therefore, that Lockwood continues to articulate accurately the public policy embodied in Minnesota Workers' Compensation Act.
Affirmed.
YETKA, Justice (dissenting).
In my opinion, this case further illustrates the folly of Lockwood v. Independent School District No. 287, 312 N.W.2d 924 (Minn.1981). For all of the reasons in my dissent in Lockwood, I dissent here.
NOTES
[1] Johnson attributed these changes to an incident in November 1976. At that time, he slipped off a flatbed truck, hitting his head on the ground. As he fell, an implement wheel came off the truck and struck him in the face. Although dazed and nauseated, he drove home. Johnson testified that he was "another person from that day on." Both the treating and examining psychiatrists agreed, however, that it was unlikely that there was any causal connection between Johnson's fall and his psychiatric problems. The compensation judge found that the 1976 occurrence was not a substantial contributing cause of Johnson's psychiatric condition and the WCCA affirmed.
[2] 1B A. Larson, Workmen's Compensation Law, § 42.20 (1987). This court previously employed Larson's classification in Egeland v. City of Minneapolis, 344 N.W.2d 597 (Minn.1984).
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902 F.2d 1558
Aetna Casualty & Surety Co.v.Farrell (Michael A., Jane L.)
NO. 89-5875
United States Court of Appeals,Third Circuit.
APR 06, 1990
Appeal From: M.D.Pa.,
Kosik, J.
1
AFFIRMED.
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526 F.2d 139
UNITED STATES of America, Plaintiff-Appellee,v.James Cromwell BAILEY, Defendant-Appellant.
No. 75--1552.
United States Court of Appeals,Seventh Circuit.
Argued Nov. 7, 1975.Decided Dec. 1, 1975.Certiorari Denied March 22, 1976.
See 96 S.Ct. 1472.
Christian J. Gielow, Gary, Ind., for defendant-appellant.
John R. Wilks, U.S. Atty., Fort Wayne, Ind., Fred W. Grady, Asst. U.S. Atty., Hammond, Ind., for plaintiff-appellee.
Before ADAMS* and TONE, Circuit Judges, and CAMPBELL, Senior District Judge.**
ADAMS, Circuit Judge.
1
James C. Bailey was indicted for violation of 18 U.S.C. § 1708 (1970), which deals, inter alia, with theft and receipt of stolen mail matter.1 After a trial by a jury, Bailey was convicted and sentenced to five years imprisonment.
2
On this appeal, Bailey makes the following contentions: (1) the evidence was insufficient to sustain the jury's verdict; (2) the trial court erred in instructing the jury regarding Bailey's right not to testify; and (3) the trial court improperly denied Bailey's motion to suppress eight packets of U.S. Savings Bonds.
3
After a careful review of all the evidence and the defendant's contentions, we affirm.
I.
4
In the late afternoon on January 28, 1975, two police officers on routine patrol observed an automobile coming towards them with one headlight not operating. The officers ordered the driver of the automobile to 'pull over,' and then approached the car and asked for the driver's license. While doing so, they noticed that the vehicle's safety inspection sticker had expired. The officers then advised the driver that they would have to issue two citations and that the car would have to be towed to the police station, where Bailey would be required to post bond. Bailey was then requested to leave the car and to accompany the officers to the stationhouse.
5
When Bailey opened the door in order to leave the car, the vehicle's interior light came on. As a result, one of the officers noticed what first appeared to be raffle tickets lying on the floor of the front of the car. When he looked more closely, the item turned out to be eight bundles or packets of U.S. Savings Bonds, in $50 and $100 denominations.
6
After counting $1000 of the bonds, one of the officers took them all to the police car, where his colleague made a complete count. It showed approximately $10,000 in bonds.
7
Bailey was then handcuffed, advised of his rights, and placed in the rear seat of the police vehicle. The officers completed the inventory of Bailey's car, called for a tow truck, and returned to the police car. At that time Bailey volunteered that he had received the bonds from an individual named Forshee outside a bar called the Mokalai, in Chicago, that he had been asked to hold the bonds, and that he was promised 25% Of their value for doing so.
8
After Bailey was placed in a cell in the police station, one of the officers asked him about a notebook that Bailey had been holding at the time of his arrest. Bailey refused to respond, but the other person in the cell pointed to a trash can. Among the papers in the trash can was a business card that had on the reverse side the number of the Gary, Indiana Police Department file pertaining to the robbery of the Gary Post Office in which $150,000 of blank bonds were stolen, including those bonds found in Bailey's automobile. Thereafter, in the course of an interview, Bailey said that he 'had made a mistake and now had to pay for it' and that 'he had got(ten) caught and now had to pay the consequences.' Later, the police checked and found no bar in the area of Chicago that had been mentioned by Bailey.
II.
9
Bailey's first contention is that the proof was insufficient to support his conviction because there was no direct evidence showing that he knew that the bonds were stolen.2 In this connection, Bailey also complains that the trial court erred in the charge regarding inferences that could be drawn from the fact that the property was recently stolen, since the time lapse here was too long to permit application of the stolen-property rule.
10
We believe there was sufficient evidence presented to permit the jury to draw an inference that Bailey had knowledge that the bonds in question had been stolen. We also believe that the stolen-property rule was applicable.
11
The jury could have taken into account the manner in which Bailey had kept the bonds in his automobile--eight packages, tied with rubber bands on the floor of the front of the car. It could have considered Bailey's explanation of the source of the bonds--from a man he had not seen since the 1950's who allegedly handed them to him in a bar called the Mokalai, in a paper bag, with the promise that Bailey could have 25% Of their value. There was also testimony regarding Bailey's intentional concealment of a business card containing the police number that pertained to the robbery from the post office of the $150,000 in bonds. Finally, the jury could have considered Bailey's statements that 'he had gotten caught' and 'had to pay the consequences.'
12
Thus, we conclude that there was adequate evidence produced to permit the jury to find that Bailey had violated § 1708.
13
We also reject Bailey's contention regarding the Court's instruction on possession of recently stolen property. The recovery of the bonds occurred only two and one-half months after their theft. This Court held in Altom v. United States, 454 F.2d 289, 294 (7th Cir. 1972), cert. denied, 406 U.S. 917, 92 S.Ct. 1765, 32 L.Ed.2d 116 (1973), that an inference may arise as much as fifteen months after a theft 'that the possessor knew that the property had been stolen.' The instruction on the inference was thus not improper.3 Additionally, the district court correctly instructed the jury concerning the necessity that inferences be inconsistent with every reasonable hypothesis of innocence.III.
14
The second contention asserted by Bailey is that the trial court erred when it stated to the jury that 'a defendant has the absolute right not to testify, and the jury must not draw a presumption of guilt or any inference against the defendant because he did not testify.'
15
This Court has held that it is not erroneous to give an instruction, over the defendant's objection, that a presumption of guilt may not be drawn from his failure to testify.4 The instruction given in the case at bar was approved verbatim by this Court in United States v. Rimanich, 422 F.2d 817, 818 (7th Cir. 1970), where the defendant alleged error by the trial court in instructing the jury as described above, over the defendant's objection. The Court noted that the instruction is thought to be helpful rather than prejudicial.
16
Accordingly, Bailey's second claim does not have merit.
IV.
17
The trial court found as a fact that the police did not use a pretext in order to stop Bailey's car, but that there was a valid basis for stopping it, namely, that he was driving with a burnt out headlight. Also, the court concluded that there was a proper ground for removing the car to a garage or place of safety; Indiana law permits a police officer to protect an unattended vehicle by removing it from the roadway.5
18
Finally, there is no claim that the police officers were not in a lawful position when standing outside Bailey's automobile. Thus, Bailey's contention that the bonds were not in 'plain view' comes down to the proposition that the officers could not legitimately peer through the open door of the car to see whether the objects on the floor were lottery tickets or bonds. There is no merit to this contention. Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), cf. State v. Opperman, 228 N.W.2d 152 (S.D.1975), cert. granted, --- U.S. ---, 96 S.Ct. 264, 46 L.Ed.2d 249 (1975).
V.
19
For all of the reasons set forth, the judgment of the district court is affirmed.
*
The Honorable Arlin M. Adams, Circuit Judge of the United States Court of Appeals for the Third Circuit, is sitting by designation
**
The Honorable William J. Campbell, Senior District Judge for the Northern District of Illinois, is sitting by designation
1
18 U.S.C. § 1708 provides in part as follows:
Whoever buys, receives or conceals, or unlawfully has in his possession, any letter, postal card, package, bag, or mail, or any article or thing contained therein, which has been so stolen, taken, embezzled, or abstracted, as herein described, knowing the same to have been stolen, taken, embezzled, or abstracted--
Shall be fined not more than $2,000 or imprisoned not more than five years, or both.
2
The government is required to prove that the defendant in a § 1708 prosecution had knowledge that the items were stolen, but it need not prove that he knew they were stolen from the mails. Barnes v. United States, 412 U.S. 837, 847, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973)
3
Cf. Barnes v. United States, 412 U.S. 837, 845 fn. 9, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973)
4
United States v. Wick, 416 F.2d 61, 63 (7th Cir.) cert. denied, 396 U.S. 961, 90 S.Ct. 430, 24 L.Ed.2d 425 (1969); United States v. Schwartz, 398 F.2d 464, 469--70 (7th Cir. 1968); cert. denied sub nom. Pyne v. United States, 393 U.S. 1062, 89 S.Ct. 714, 21 L.Ed.2d 705 (1969); see United States v. Slaton, 430 F.2d 1109, 1111 (7th Cir. 1970) (dictum), cert. denied, 400 U.S. 997, 91 S.Ct. 475, 27 L.Ed.2d 448 (1971)
5
Burns Ind.Stat.Ann. § 9--4--1--113 (1973)
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299 So.2d 332 (1974)
Charles Henry ROWELL
v.
STATE.
5 Div. 238.
Court of Criminal Appeals of Alabama.
July 16, 1974.
Rehearing Denied August 13, 1974.
John W. Davis, III, Montgomery, for appellant.
William J. Baxley, Atty. Gen., Montgomery, and Samuel L. Adams, Sp. Asst. Atty. Gen., Dothan, for the State.
CATES, Presiding Judge.
Second degree murder: sentence, twenty-five years imprisonment.
The only reasonably arguable question arising from the trial was the allowance of certain State witnesses to be exempt from the rule of sequestration. We quote:
"* * * In the case at bar, the State called the following as its witnesses:
1. Henry Meadows Opelika Police Department
2. Mark Harvard Norred AAA Ambulance Service
3. Dr. Richard A. Roper State Toxicologist
4. Vickie Paradise daughter of deceased
5. Jim Davis Opelika Police Department
6. Dan Davis Opelika Police Department
7. Ronald F. Dunson Opelika Police Department
"Those who were sequestered by the rule were:
"Vickie Paradise, daughter of deceased
Mark Norred, ambulance driver."
Appellant's brief.
The purpose of sequestration, axiomatically, is to obviate as far as possible one witness's trying to make his testimony consistent with that of another. However, *333 our cases do not treat exceptions to the "rule" as presenting appealable questions. De Franze v. State, 46 Ala.App. 283, 241 So.2d 125.
Moreover, if we were to treat the over abundance of peace officers as an abuse of discretion, nevertheless, we would affirm the conviction because of the harmless error doctrine. Rule 45.
The judgment below is
Affirmed.
All the Judges concur.
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628 N.E.2d 297 (1993)
256 Ill. App.3d 27
194 Ill.Dec. 800
The PEOPLE of the State of Illinois ex rel. the VILLAGE OF McCOOK, a municipal corporation, Plaintiff-Appellant,
v.
INDIANA HARBOR BELT RAILROAD COMPANY, Defendant-Appellee.
No. 1-91-3684.
Appellate Court of Illinois, First District, Third Division.
November 10, 1993.
*298 Louis F. Cainkar, Ltd., Chicago, for plaintiff-appellant.
Richard A. Hobbs, Crete, for defendant-appellee.
Presiding Justice TULLY delivered the opinion of the court:
Plaintiff, the Village of McCook (the Village), filed this action in the circuit court of Cook County against defendant, Indiana Harbor Belt Railroad Company, alleging violations of section 18c-7402(b) of the Illinois Vehicle Code (section 18c-7402(b) (Ill.Rev. Stat.1989, ch. 95½, par. 18c-7402(b) (now codified as 625 ILCS 5/18c-7402(b) (West 1992))) and section 10-1-1A of the Municipal Code of the Village of McCook, Illinois (1990) (section 10-1-1A). After the Village presented its case, defendant filed a motion for a directed verdict which the trial court granted. It is from the trial court granting of defendant's motion of a directed verdict that the Village appeals to this court pursuant to Supreme Court Rule 301 (134 Ill.2d R. 301).
For the reasons which follow, we reverse and remand.
FACTUAL BACKGROUND
The facts pertinent to this appeal are undisputed. At approximately 9:45 p.m. on October 4, 1990, while on a routine patrol, Lt. Anthony Yuretich of the McCook police department observed a westbound train owned by defendant stopped east of the highway grade crossing at 47th Street and East Avenue in the Village of McCook. The tracks upon which the train was stopped run in a diagonal direction across both 47th Street and East Avenue. At that time, no other trains were in the vicinity, the flashing light signals were activated and the grade crossing gates were lowered. However, the train itself did not physically block either grade crossing; rather, it was the train's having been stopped upon a sensor device that activated the crossing signals and gates to be activated. Consequently, the public was unable to traverse the grade crossings.
Yuretich completed his patrol and returned to the vicinity of 47th Street and East Avenue at about 10:00 p.m. Thereupon, he discovered that the train had not been moved and that traffic was being blocked by the lowered crossing gates. At approximately 10:17 p.m., Yuretich reported the blockage of public travel at the grade crossings to the McCook police department's radio control operator and requested that defendant be notified of the obstruction. Consequently, radio control operators Joanne Cappaccio and Frank Batura made repeated attempts to contact defendant by telephone; however, defendant's telephone line remained busy until roughly 12:30 a.m. on October 5,1990. It was not until that time that Batura was able to advise defendant of the situation.
At approximately 3:15 a.m., a crew from defendant arrived at the scene and moved the train backwards or eastbound thirty feet which deactivated the flashing signals and caused the crossing gates to rise. Thus, it was necessary for Yuretich to remain at the scene from approximately 10:00 p.m. on October 5, 1990, until 3:20 a.m. on October 6, *299 1990, in order to manually raise the crossing gates to allow traffic to cross the highway grade crossings.
Subsequently, the Village filed a complaint against defendant alleging violations of section 18c-7402(b) and section 10-1-1A. On October 22, 1991, the case was tried before the trial court, sitting without a jury. After the Village presented its case, defendant moved for a directed verdict. In granting defendant's motion, the trial court ruled that the facts in the instant case did not amount to a violation of either the statute or the ordinance because the subject train did not obstruct traffic by being itself located in the grade crossing. It appears that in so ruling the trial court attached significance to the fact that the predecessor to section 18c-7402(b) required the actual physical presence of the train on the grade crossing. The Village then filed a timely notice of appeal.
ISSUE ON APPEAL
The sole issue to be determined in this appeal is whether the trial court erred in its construction of section 18c-7402(b) and section 10-1-1A, and thus consequently erred in granting defendant's motion for a directed verdict.
OPINION
As a preliminary matter we note that the language of section 10-1-1A is identical to that of section 18c-7402(b) and thus our discussion of section 18c-7402(b) is applicable to section 10-1-1A. However, for the sake of brevity, we shall refer only to section 18c-7402(b) which provides as follows:
"(b) Obstruction of Highway at Grade Crossing Prohibited. It is unlawful for a rail carrier to permit any train, railroad car or engine to obstruct public travel at a railroad-highway grade crossing for a period in excess of 10 minutes, except where such train, railroad or car is continuously moving or cannot be moved by reason of circumstances over which the rail carrier has no reasonable control. However, no employee acting under the rules or orders of the rail carrier or its supervisory personnel may be prosecuted for such violation." (Emphasis added.) Ill.Rev.Stat. 1989, ch. 95½, par. 18c-7402(b) (now codified as 625 ILCS 5/18c-7402(b) (West 1992)).
Sections 1 and 2 of "An Act to revise the law in relation to the construction of the statutes" place an affirmative obligation upon Illinois courts to ascertain and give full effect to the legislative intent of our General Assembly (Ill.Rev.Stat.1989, ch. 1, pars. 1001, 1002 (now codified as 5 ILCS 70/1;, 1.01 (West 1992)); see also Kirwan v. Welch (1989), 133 Ill.2d 163, 139 Ill.Dec. 836, 549 N.E.2d 348.). In interpreting a disputed provision a court should first consider the statutory language itself as the best indication of the intent of the drafters. (Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill.2d 450, 145 Ill.Dec. 894, 557 N.E.2d 873.) Terms that are unambiguous, when not specifically defined, must be given their plain and ordinary meaning. People v. Moore (1978), 69 Ill.2d 520, 14 Ill.Dec. 470, 372 N.E.2d 666.
Thus, the Village argues that the plain meaning of the language of section 18c-7402(b) and its use of the term "obstruct" evinces a clear legislative intent by the General Assembly to minimize blockage of public travel across railroad highway grade crossings. Moreover, nothing in the provision's language requires a train to be actually situated in the grade crossing itself. Furthermore, the Village asserts that the method by which a train, railroad car or engine obstructs a grade crossing is unimportant; rather, it is the desire to limit the obstruction of public travel that animates section 18c-7402(b). We agree for two reasons.
First, in People v. Indiana Harbor Belt R.R. Co. (1981), 102 Ill.App.3d 811, 58 Ill. Dec. 162, 430 N.E.2d 104, the appellate court interpreted the term "obstruct" within the context of the predecessor statute to section 18c-7402(b) and in doing so employed Webster's Third New International Dictionary (1976). Thus, the court held obstruct to mean "1. to block up: stop or close up * * * 2. to be or come in the way of: hinder from passing, action or operation; * * * 3[.] cut off from sight: shut out * * *." (Indiana Harbor Belt R.R., 102 Ill.App.3d at 814, 58 Ill.Dec. 162, 430 N.E.2d 104.) More recent *300 dictionaries which we have consulted contain almost exactly the same definition.
In the case sub judice, defendant's actions met all three of the definitions of obstruct. Clearly, the train blocked up, stopped, closed, came in the way of, hindered from passing, action or operation, and shut out public traffic from traversing the grade crossing by its triggering of the device lowering the crossing gates. Thus, both the spirit and the letter of the law were violated by defendant's conduct.
Secondly, "[a]n amendment of an unambiguous statute indicates a purpose to change the law, and the Illinois Supreme Court has held that a statutory amendment is an appropriate source of discerning legislative intent" (Emphasis added.) (Indiana Harbor Belt R.R., 102 Ill.App.3d at 815, 58 Ill.Dec. 162, 430 N.E.2d 104 citing O'Connor v. A & P Enterprises (1980), 81 Ill.2d 260, 41 Ill.Dec. 782, 408 N.E.2d 204.) Here, the predecessor to section 18c-7402(b) stated in no uncertain terms that a train must stand upon the tracks within the crossing. (See Ill.Rev.Stat. 1971, ch. 114, § 70.) Language requiring the physical presence of a train upon a grade crossing is obviously omitted from section 18c-7402(b). Thus, we believe such omission to manifest an intent of the General Assembly to remove the physical presence requirement from the provision.
DISPOSITION
In light of the aforementioned, we find that the trial court's granting of a directed verdict for defendant was in error and, consequently we reverse the judgment of the circuit court of Cook County and remand this cause for further proceedings consistent with this decision.
Reversed and remanded.
RIZZI and CERDA, JJ., concur.
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888 F.Supp. 485 (1995)
Jodi PERRY, Individually, and on behalf of all others similarly situated, Plaintiff,
v.
Michael DOWLING, individually and in his official capacity as Commissioner of the New York State Department of Social Services; and Joan Sinclair, as Commissioner of the Allegany County Department of Social Services, Defendants.
No. 93-CV-541C.
United States District Court, W.D. New York.
June 7, 1995.
*486 Southern Tier Legal Services (Mark H. Wattenberg, and David B. Pels, of counsel), Bath, NY, and Greater Upstate Law Project (June Castellano, and Ellen Yacknin, of counsel), Rochester, NY, for plaintiff.
Dennis C. Vacco, Atty. Gen., (Mark R. Walling, Asst. Atty. Gen., of counsel), Buffalo, NY, for defendants.
DECISION AND ORDER
CURTIN, District Judge.
BACKGROUND
Plaintiff Jodi Perry brings suit on behalf of herself and all similarly situated persons against defendant Michael Dowling, individually and in his capacity as Commissioner of the New York State Department of Social Services, and defendant Joan Sinclair, individually and in her capacity as Commissioner of the Allegany County Department of Social Services ("DSS"). Plaintiff claims that the defendants violated 42 U.S.C. § 1396k(a)(1) and her Fourteenth Amendment right to due process by conditioning her receipt of Medicaid benefits after the birth of her child, Thomas English III, on her willingness to cooperate with the agencies in recouping the costs of the pregnancy-related medical services from the child's father, Thomas English, Jr. Perry now moves for class certification and summary judgment, seeking declaratory and injunctive relief.
Defendants Dowling and Sinclair initially moved for partial dismissal on the pleadings. After conducting a limited amount of discovery, the defendants filed a cross-motion for summary judgment on both causes of action. They claim that the legislative intent of Congress in exempting women such as the plaintiff from the cooperation requirement extends only to the time of pregnancy and 60 days postpartum. Since the plaintiff was not asked to cooperate in securing payment from Mr. English until she sought to continue Medicaid coverage for herself and her child after the 60-day postpartum period, no federal statutory, regulatory, or due process violation occurred.
FACTS
In 1986, Congress expanded Medicaid coverage of pregnancy-related medical care to low-income women who did not otherwise qualify for Medicaid. Women during pregnancy and the 60-day postpartum period who are not eligible under any other Medicaid program and whose income is up to 133 percent of the federal poverty level or, at the State's option, up to 185 percent of the federal poverty level, can apply for limited prenatal and postpartum health care services. 42 U.S.C. §§ 1396a(l)(1) & (2); 1396a(a)(10)(A)(i)(IV). New York State has exercised the option to provide for coverage up to 185 percent of the federal poverty level.
Medical coverage in this program is different from that offered by conventional Medicaid, in that it is limited to prenatal, delivery, postpartum care, and family-planning services. 42 U.S.C. § 1396a(a)(10). There is no coverage for other kinds of medical care not related to pregnancy or childbirth. However, households which continue to meet the eligibility standards under the Act after the baby's birth may obtain continued health care under Medicaid's Infant Care Program until the infant is one year old. 42 U.S.C. § 1396a(l)(1)(B).
For conventional Medicaid coverage, eligible applicants must cooperate with the State Medicaid agency to obtain financial support from third parties who may be legally responsible to support them. Until 1990, applicants could be exempted from this requirement only "[if] the individual is found to have good cause for refusing to cooperate...." 42 U.S.C. § 1396k(a)(1)(B) (1986). However, in 1990, Congress amended § 1396k to add another exemption to the "good-cause" exception. Recognizing that the cooperation requirement created a barrier for some pregnant women who seek prenatal care, Congress decided to exempt women who receive *487 only the limited pregnancy-related medical care coverage, as described in § 1396a(a)(10)(A)(i)(IV). 42 U.S.C. § 1396k(a)(1)(B) (1990).[1]
In October 1991, Jodi Perry applied for Medicaid benefits to cover the costs of her pregnancy-related medical care. She was told she was ineligible for comprehensive Medicaid coverage because of her income level, but could receive pregnancy-related benefits for the duration of her pregnancy, including 60 days postpartum.
After her baby was born, Perry sought and received "recertification" of Medicaid benefits for herself and Thomas III. She alleges that she was told at the time that the only way she could receive coverage was to sign over her right to third party funds and to agree to cooperate with DSS in securing such funds from the baby's father. Perry agreed to these conditions. DSS then commenced child support proceedings against Thomas English, Jr. It filed a modification petition which requested that English pay not only for Medicaid reimbursements made on behalf of Perry and Thomas III after the postpartum period, but also for Perry's pregnancy-related benefits.
DISCUSSION
I. Interpretation of Section 1396k(a)(1)
The facts are not in dispute for the purposes of plaintiff's first cause of action. Rather, the parties argue over the interpretation of statute.
Section 1396k(a)(1) states that a State medicaid plan must require an individual, as a condition of eligibility for medical assistance:
(A) to assign the State any rights, of the individual or of any other person who is eligible for medical assistance under this subchapter and on whose behalf the individual has the legal authority to execute an assignment of such rights, to support (specified as support for the purpose of medical care by a court or administrative order) and to payment for medical care from any third party;
(B) to cooperate with the State (i) in establishing the paternity of such person (referred to in subparagraph (A)) if the person is a child born out of wedlock, and (ii) in obtaining support and payments (described in subparagraph (A)) for himself and for such person, unless (in either case) the individual is described in section 1396a(l)(1)(A) of this title or the individual is found to have good cause for refusing to cooperate as determined by the State agency ...; and
(C) to cooperate with the State in identifying, and providing information to assist the State in pursuing, any third party who may be liable to pay for care and services available under the plan, unless such individual has good cause for refusing to cooperate as determined by the State agency....
The parties agree that the plaintiff was an individual described in § 1396a(l)(1)(A), which covers "women during pregnancy (and during the 60-day period beginning on the last day of the pregnancy)," when she applied for and began receiving benefits. They further agree that the plaintiff has at no time refused to cooperate for good cause as defined by the statute.
Defendants assert in their memorandum in support of partial judgment on the pleadings (Item 11) and again in their brief in support of a motion for summary judgment (Item 35) that the statute entitles the State to require plaintiff to cooperate in seeking reimbursement from third parties for money spent on her pregnancy-related medical care once she recertifies for Medicaid after the 60-day postpartum period. DSS argues that at the time it initiated proceedings to recoup payments *488 from Mr. English, the father of Perry's infant son, Perry was no longer within the class of women defined by § 1396a(l)(1). Thus, she was no longer exempt from the cooperation requirement. The defendants have submitted an affidavit from William L. Hickman, Director of the Office of Medicaid Policy, Medicaid Bureau finding "no violation by New York of 42 U.S.C. § 1396k(a)(1)." Item 44, ¶ 2. Mr. Hickman states that "New York was correct in requiring cooperation from Ms. Perry, as a condition of eligibility, when she subsequently applied for medical assistance for herself and her newborn. Further, once cooperation has been properly obtained and paternity has been established, federal law does not place a limit on the amount of recovery from the father." Id., ¶ 4. However, Mr. Hickman does not affirmatively state that reimbursement of payments made for prenatal care was contemplated by Congress or set forth in the statute.
Plaintiff responds that the defendants' interpretation of § 1396k(a)(1) negates the intent of Congress in enacting § 1396a(l). In response to a crisis in availability of adequate health care for poor, pregnant women, Congress expanded Medicaid to provide pregnancy-related medical services to a group of women not otherwise eligible for these government benefits. The legislation was explicit in exempting these women from the disclosure requirement, on the theory that more women would seek and obtain benefits if they were assured that no legal action would be taken against the prospective father as a result. See H.Rep. No. 101-881, 101st Cong.2d Sess. 106-07 (1990), reprinted in 1990 U.S. Code Cong. & Admin. News 2017, 2118-19. Plaintiff describes the findings of several reports which Congress relied upon in enacting this section of the Medicaid Act to bolster her position. See Item 24 at 14-15. The reports consistently emphasize the cost-effectiveness of prenatal care. Plaintiff maintains that Congress considered both the financial savings and the health benefits of broader access to prenatal care in deciding to grant an exemption for women who seek only relatively inexpensive, short-term medical coverage during pregnancy. Based on the studies, which strongly indicate that more women would avail themselves of prenatal care if not forced to cooperate in obtaining benefits from the prospective fathers, Congress determined that the care these women received as a result of the exemption would prove to be cost-effective to the government in the long term.
Plaintiff argues forcefully that defendants' policy and practice of seeking reimbursement from fathers for medical care previously provided by § 1396a(l) imposes the precise barrier to participation in the program that Congress's mandatory "support cooperation" exemption was specifically intended to eliminate. Plaintiff claims that her own situation illustrates that the defendants' interpretation of the statute effectively nullifies the exemption. Mr. English lives with Ms. Perry and their child and contributes to the baby's support. If the defendants can force English to reimburse DSS for the cost of Perry's prenatal care, the parents' ability to provide financially for Thomas III would be significantly impaired. Faced with the imminent loss of potentially thousands of dollars from her household's limited income in this manner, plaintiff asserts that many pregnant women would choose instead to forego participation in the program. Plaintiff offers affidavits from Florence Felsen, a Prenatal Educator, and Sarah Waller, Cortland County Coordinator for the Prenatal Care Assistance Program, asserting that the State's policy of seeking reimbursement serves as a deterrent to applicants for pregnancy-related Medicaid benefits. Item 20, Exs. M & N.
Plaintiff also maintains that there is no express or implied indication in the statute, federal regulations, federal directives, or legislative history entitling a state agency to require former recipients of this program to cooperate in recouping payments. On the contrary, plaintiff argues that seeking recoupment for prenatal care benefits runs completely afoul of Congressional intent, which is plainly ascertained from the legislative materials. She urges that a liberal construction of statutory analysis of the Medicaid Act must be made with respect to pregnancy-related medical care to effectuate the strong Congressional policy towards expanding eligibility in light of the cost-effectiveness *489 and health benefits of making this care widely available. Lewis v. Grinker, 965 F.2d 1206, 1219 (2d Cir.1992). Finally, plaintiff asserts that Mr. Hickman's affidavit is not entitled to deference in this action because it was submitted purely for the sake of litigation. Lewis, at 1220.
The defendants respond that the court, in reviewing an agency's construction of the statute which it administers, must first determine whether Congress has directly addressed the question at issue. If the statute is silent or ambiguous, the court is not free to impose its own construction, but rather is confined to deciding whether the agency's interpretation is based on a permissible construction. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984).
The defendants argue that the statutory language clearly imposed a time frame for the cooperation exemption limited to pregnancy and 60 days postpartum. If Congress had intended to bar states from ever requiring women to cooperate in establishing paternity and obtaining support to reimbursement of pregnancy-related medical care, it would have enacted a statute stating that women did not have to cooperate in the reimbursement of pregnancy-related expenses. Instead, the statute limits the exemption to women during pregnancy and for 60 days after childbirth.
The defendants rely on Douglas v. Babcock, 990 F.2d 875 (6th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 86, 126 L.Ed.2d 54 (1993), the only decision to interpret the application of § 1396k. The Sixth Circuit summarized the recouping provisions and found that:
in order to be eligible for medical assistance, a Medicaid applicant is required to assist the state by assigning any support and medical payment rights to the state, cooperating with the state in establishing the paternity of any minor child born out of wedlock for whom the applicant is legally responsible, and cooperating with the state in identifying and pursuing any third parties who may be liable to pay for medical care.
Id. at 878 (emphasis added). The court further determined that only women described in § 1396a(l)(1)(A) and those who have good cause to refuse are exempt from the cooperation requirement. Defendants contend that the Douglas holding precludes Perry and other women from refusing cooperation because, after 60 days postpartum, they are no longer described by § 1396a(l)(1)(A).
The plaintiff counters that Douglas does not apply to her case. Section 1396a(a)(10)(A)(i) lists several different categories of individuals who are eligible for Medicaid during pregnancy. The Douglas court determined that because the plaintiff in its case was financially eligible for Medicaid under category III of § 1396a(a)(10)(A)(i)[2], she was precluded from the exemption granted to individuals described in category IV. Ms. Perry, however, was only eligible for the more limited, pregnancy-related medical coverage defined by category IV of the subsection.[3] It is precisely this category of recipients for which Congress enacted the cooperation exemption. Plaintiff here claims that, contrary to the defendants' assertion, Douglas did not address the legality of pursuing *490 support collection efforts from category IV recipients after the birth of the child.
The defendants next argue that even if the court finds the import of § 1396k(a)(1) less than clear regarding this issue, DSS's interpretation is permissible and should not be overturned. The defendants point out that the time limit during which the recipients can refuse to cooperate is clearly spelled out and that the statute places no limit on the amount or type of payments which can be sought from the father once paternity is established. The Secretary of Health and Human Services, the federal agency which must approve the state Medicaid plans, approved DSS's reimbursement policy and Mr. Hickman's affidavit supports the defendants' interpretation of the statute as permissible. See Item 44.
For all its detail, the statute is silent regarding recoupment of monies paid for prenatal care if the recipient reapplies for Medicaid after the postpartum period. Nor does the Congressional report cited by the plaintiff reveal legislative intent concerning this particular issue. The House Report states:
The Committee is concerned that application of these (cooperation) requirements to women who are applying only for pregnancy-related coverage may discourage many of them from seeking benefits that would give them access to early prenatal care. The Committee notes that the Department's own manuals acknowledge that paternity determinations, which are based on one of several blood tests, cannot be made before an infant is at least 4 months old....
Thus, the cooperation requirement is not only a potential barrier to prenatal care for the high-risk, low-income women that would most benefit from it, but is also a bureaucratic hurdle that yields absolutely no useful information until months after the prenatal period has ended.
H.Rep. No. 101-881 at 106-07 (1990). 1990 U.S.Code Cong. & Admin.News at 2118-19. While the report discussed the cooperation requirement as a barrier which discourages women from seeking benefits, it makes no mention of reimbursement of funds at a later date.
On the other hand, in enacting a series of amendments to the Medicare Act which broadened Medicaid eligibility for prenatal care between 1981 and 1990, Congress clearly demonstrated its concern over the inability of poor, pregnant women to obtain adequate health care. The 1990 amendment addressed the needs of a class of women whose income level placed them in the widening gap of Americans who were not entitled to Medicaid through welfare or some other federal program but could not afford health insurance or the costs of medical care. In granting an exemption for these category IV women, Congress specifically recognized that the support cooperation requirement would prevent many of them from applying for medical benefits. The decision to forego any revenues generated by recoupment was made in the face of ample evidence that adequate prenatal care proves cost-effective.
The legislative history of Medicaid funding for prenatal benefits, viewed in this light, supports the plaintiff's construction of Congress's intent behind the exemption as a grant rather than a postponement. Indeed, the United States Court of Appeals for the Second Circuit found the same overriding intent to extend prenatal medical coverage so clearly expressed that it struck seemingly contradictory statutory language in another provision of the Medicare Act. In Lewis v. Grinker, 965 F.2d 1206 (2d Cir.1992), plaintiffs, pregnant women who were illegal aliens, sought injunctive and declaratory relief of Medicaid benefits. DSS had denied them coverage based on the Omnibus Budget Reconciliation Act of 1986, Pub.L. 99-509, which amended the Medicare Act to provide medical care for indigent illegal aliens only for emergency treatment, including emergency labor and delivery, but not prenatal care. Section 1396b(v). The Lewis court reviewed the legislative history of the amendment's passage and found that:
Congress has over the years unequivocally expressed its desire to continue to expand access to prenatal care.... Thus, we can discern a clearly expressed Congressional intent contrary to the plain language of the statute.... [R]efusing to extend a broad statutory prohibition to a situation Congress *491 did not foresee is necessary in order to avoid impeding a clearly expressed Congressional purpose.
Id. at 1219.
Unlike Lewis, neither the wording of the statute nor the legislative reports plainly expresses Congress's intent on the precise issue here. Nevertheless, the Lewis holding is pertinent in two respects. First, the legislative history relied on by the court portraying Congress's desire to provide greater access to prenatal care in its Medicaid legislation applies with equal force to Congress's enactment of the cooperation exemption in 1990. Second, the Lewis court justified its decision to look beyond the language of the statute based on the nature of the Medicaid Act. The court stated that:
[T]he Medicaid Act is a statute of "unparalleled complexity," among the "most intricate ever drafted by Congress." Its provisions are "`almost unintelligible to the uninitiated....'"
Within this contorted scheme, few areas are more complex than the coverage of prenatal care.
Id. at 1216 (citations omitted). The court then gave some examples of mistakes, redundancies, and inconsistencies among the amendments to the Act to demonstrate that a literal reading of a particular amendment may not suffice to interpret the meaning of the statute accurately, a view echoed by Chief Judge Merritt in his dissent in Douglas v. Babcock, 990 F.2d at 883. Judge Merritt stated that:
Unfortunately, Congress has not written its Medicaid prenatal care statute concerning a pregnant woman's duty to identify the father as clearly as it has written its legislative history. The evidence of legislative intent is clear and unmistakable; the statute itself is at best opaque, at worst incomprehensible. The legislative history of the 1990 Amendment clearly states that the statute changes the law in order to allow pregnant women in poverty to be eligible for prenatal medical care even though they cannot ... or will not identify the father....
The [House] Report then makes it abundantly clear that it is changing the old rule which denies eligibility for non-cooperating pregnant women....
Without this statement of purpose in the legislative history, an accurate analysis of the statute is almost impossible, for the convoluted statutory language is a puzzling jumble of words, exceptions, exceptions to exceptions, and exceptions to exceptions to exceptions, requiring ... "an eye-glazing examination of a labyrinthine maze of sections, and seemingly infinite subsections, of the Medicaid Act." Certainly the "plain-meaning" rule has no application here.
990 F.2d at 883-84 (quoting the majority opinion and noting his concurrence with Lewis).
It is clear that both the Lewis court and Chief Judge Merritt felt obliged to rely to a greater degree then usual on the legislative history of the Medicaid statute because of the difficulties inherent in discerning Congress's meaning from the statutory language itself. Nonetheless, the defendants insist that the court "must defer to the agency's resolution of the matter if it is based on a permissible construction of the statute and is `sufficiently reasonable.'" Detsel by Detsel v. Sullivan, 895 F.2d 58, 62 (2d Cir.1990) (citing Chevron, 467 U.S. at 844-45, 104 S.Ct. at 2782-83). "Generally, the weight given to an agency's decisions `depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.'" Id. at 65, citing Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944).
At oral argument, counsel for the defendants correctly pointed out that Congress demonstrated two warring intents in enacting an extension of Medicaid benefits for prenatal care. While acknowledging Congress's desire to widen access to prenatal care by removing barriers to application, the defendants properly insist that the equally important intent to make Medicaid a "payor of last resort" runs throughout the legislative record. See, e.g. Sen.Rep. No. 146, 99th Cong., 1986 U.S.Cong. & Admin.News, at *492 279. The defendants argue that their policy takes into account the "trade-off" envisioned by Congress in raising the eligibility level for prenatal medical benefits by requiring postpartum cooperation only from those women who attempt recertification for conventional Medicaid. If a woman refuses to cooperate at that point, she is denied any further Medicaid for herself even if she is otherwise eligible. However, her prenatal benefits are not taken away retroactively, and her child can continue to receive Medicaid.
Under the Chevron test, the question before the court must be whether the agency, in fashioning the policy and practice at issue, considered these somewhat contradictory statutory intents in a "sufficiently reasonable" manner. The court is mindful that deference to the agency's interpretation is warranted except in the "`rare and exceptional circumstance' where the particular application of the Medicaid Act[] ... urged by the [agency] would fly in the face of legislative history and would create affirmative harms that Congress ... has continually sought to alleviate." Lewis, 965 F.2d at 1223 (citations omitted). However, "where we confront a statute that evinces a legislative purpose clearly at odds with the proffered administrative interpretation, we should not defer. Indeed, our constitutional duty to interpret the law requires us to effectuate the legislative intent notwithstanding the contrary administrative view." New York City Health and Hospitals Corp. v. Perales, 954 F.2d 854, 863 (2d Cir.1992). Moreover, since there is controlling authority in this Circuit emphasizing the importance of extending prenatal medical care in the legislative history of this statute, it is incumbent upon the state agency to show that this intent is reflected in the policy it chose.
The court does not believe that DSS's present practice of requiring a woman who has received prenatal medical benefits pursuant to § 1396a(l)(1) of the Medicaid Act to cooperate in recouping such payments from the father of her child if she recertifies for Medicaid after the child's birth is a "sufficiently reasonable" interpretation of the statute in light of the statutory language, its legislative history emphasizing the need to remove impediments to care, and the controlling authority of Lewis. Although the court must give deference to an agency's policy, DSS's interpretation is too one-sided to be a reasonable accommodation of the two intents of these subsections of the statute.
The court is persuaded by the plaintiffs evidence that the defendants' recoupment policy serves as a barrier to receipt of prenatal medical care for poor women in contradiction to the clear intent of Congress. While the policy allows a pregnant woman to postpone cooperation in the assignment of rights until after the birth of her baby, the defendants have made no showing that such postponement acts to counter the disincentive created by the cooperation requirement which Congress sought to remove. By contrast, the plaintiff has made a strong showing that poor women who would otherwise be eligible for Medicaid coverage of prenatal medical care are deterred from seeking benefits by the present policy. Plaintiff argues that women in her position who are notified[4] that their household will be subject to reimbursement proceedings may well choose to forego participation in the program. In support of her argument, the plaintiff has provided affidavits from health care professionals who are involved in assisting women to receive financial help for prenatal care. The affidavits affirm that the recoupment policy prevents some women from seeking needed Medicaid-sponsored prenatal care to which they would be entitled.
Although not discussed in depth at oral argument, the court must also query whether the reimbursement policy is even cost-effective. Given the relatively low cost of prenatal care in most instances and the likelihood that many of the fathers will not be able to *493 repay these expenses in addition to reimbursing the state for funds expended to provide mother and child with conventional Medicaid after recertification, it is difficult to imagine that enforcement of the cooperation requirement after the child's birth could yield savings substantial enough to warrant the perpetuation of the barrier which prevents women from applying for medical care during pregnancy. The defendants have not provided the court with any evidence that their policy results in significant savings. Neither have they shown that they considered the negative impact of the policy and attempted to minimize its deterrent effect.
Accordingly, the court finds that the defendants have failed to provide a sufficiently reasonable explanation of their interpretation of the Medicaid Act as it affects the exemption to the cooperation requirement for women who receive coverage for prenatal medical care. Although they state that their policy is permitted by the statutory language, they have not shown they attempted to balance the two conflicting intentions manifest in this aspect of the Medicaid Act with the thoroughness of consideration and validity of reasoning required by this Circuit to entitle them to judicial deference of their interpretation.
II. Class Certification
Plaintiff moves to certify a class comprising all applicants and recipients throughout New York State who have been, are, or will be found eligible for Medicaid coverage of their pregnancy-related medical expenses under 42 U.S.C. § 1396a(l), N.Y. Social Services Law § 366(4)(o), and N.Y. Public Health Law § 2520 et seq. Plaintiff asserts that the four prerequisites of Rule 23(a) of the Federal Rules of Civil Procedure are satisfied by this class definition. The class, which includes thousands of women, is so numerous that joinder of all members is impracticable. There are common questions of law and fact. The suit involves the state agency's interpretation of a federal statute and the adequacy of the notice given to applicants of this interpretation. The typicality requirement is met because the named plaintiffs claims arise from the same conduct that gives rise to the class's claims. Finally, Perry's interests are identical to those of the class. She seeks to require defendants to implement the exemption from cooperation under § 1396a(l) and to provide adequate notice. Counsel for the proposed plaintiff class, supported by the Greater Upstate Law Project, assure the court of their expertise in Medicaid law and child support issues and their extensive experience litigating class actions in federal court.
Defendants do not challenge the numerosity prerequisite but maintain that the proposed class is too indefinite to show either typicality or commonality of fact between plaintiff's individual situation and those of other class members. They claim there is also no common issue of law since the statutes in question already require the defendants to seek cooperation in establishing paternity and obtaining support as well as providing adequate notice. Defendants further argue that plaintiff does not fairly or adequately protect the interests of the proposed class. Defendants contend that the intent behind § 1396k and its relevant regulations is the maintenance of a fiscally sound public program which would benefit the class as a whole by providing more resources for those in need.
Defendants' central argument, however, is that class certification is not appropriate where the declaratory and injunctive relief, if granted, would inure to the benefit of the proposed class members even absent certification. Galvan v. Levine, 490 F.2d 1255 (2d Cir.1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2652, 41 L.Ed.2d 240 (1974). A determination by this court that the defendants' policies and practices constitute a violation of federal law would necessarily provide relief to the class even without certification. Government officials are entitled to a presumption that they will abide by a court order. McKenna v. Peekskill Housing Authority, 83 F.R.D. 600 (S.D.N.Y.1979). The two Legal Services agencies representing the plaintiff can be relied upon to maintain an ongoing interest in monitoring enforcement.
Since the plaintiff is seeking only injunctive and declaratory relief and the court can presume the defendants will apply any relief *494 granted to all those affected by the relevant regulations, there does not appear to be a need to certify a class. However, a stipulation that the agency would enforce an order by this court state-wide, including proper notice and remedy to class members who may benefit, might be necessary to insure that the relief will be granted in its entirety.
CONCLUSION
Plaintiff Jodi Perry's motion for summary judgment is granted. Her motion for class certification is denied.
So ordered.
NOTES
[1] The regulations promulgated by the United States Department of Health and Human Services ("HHS") pursuant to this section of the Medicaid Act require a state plan to provide, as a condition of eligibility, that applicants:
Cooperate with the agency in establishing paternity and in obtaining medical support and payments, unless the individual establishes good cause for not cooperating, and except for individuals described in section 1902(l)(1)(A) of the Act (poverty level pregnant women), who are exempt from cooperating in establishing paternity and obtaining medical support and payments from, or derived from, the father of the child born out of wedlock.
42 C.F.R. § 433.145(a)(2).
[2] Category III includes "qualified pregnant women or children as defined in section 1396d(n) of this [Medicaid] title[.]" 42 U.S.C. § 1396a(a)(10)(A)(i)(III) (1992). Section 1396d(n) defines qualified pregnant women as those who "would be eligible for aid to families with dependent children" or who would "otherwise meet[] the income and resources requirements of a State plan...." 42 U.S.C. § 1396d(n)(1)(A) & (C) (1992).
[3] Category IV includes "all individuals who are described in subparagraph (A) or (B) of subsection (l)(1) of this section and whose family income does not exceed the minimum income level the State is required to establish under subsection (l)(2)(A) ...." 42 U.S.C. § 1396a(a)(10)(A)(i)(IV) (1992). Individuals described in § 1396a(l)(1) are "(A) women during pregnancy (and during the 60-day period beginning on the last day of the pregnancy), [and] (B) infants under one year of age, ... who are not described in any of subclauses (I) through (III) of subsection (a)(10)(A)(i) of this section and whose family income does not exceed the income level established by the State...." (1992). In New York State, the income level is 185 percent of the income official poverty line.
[4] In her second cause of action, plaintiff alleges that the defendants violated her Fourteenth Amendment right to due process by failing to inform her that if she refused to cooperate, the defendants would still be required to provide continued Medicaid benefits to her son. Since I find the defendants' policy and practice of conditioning recertification of Medicaid benefits on cooperation an impermissible interpretation of the Medicaid Act, I need not reach the due process issue.
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259 F.3d 193 (4th Cir. 2001)
UNITED DOMINION INDUSTRIES, INCORPORATED, Plaintiff-Appellee,v.UNITED STATES OF AMERICA, Defendant-Appellant.
No. 98-2380
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Argued: December 2, 1999Decided: March 24, 2000Decided on Remand: August 1, 2001
On Remand from the United States Supreme Court.
(S. Ct. No. 00-157)
COUNSEL Richard Farber, Edward T. Perelmuter, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Eric R. Fox, Dirk J. J. Suringa, IVINS, PHILLIPS & BARKER, Washington, D.C., for Appellee.
Before TRAXLER and KING, Circuit Judges, and Margaret B. SEYMOUR, United States District Judge for the District of South Carolina, sitting by designation.
Remanded by published opinion. Judge King wrote the opinion, in which Judge Traxler and Judge Seymour concurred.
OPINION
KING, Circuit Judge:
1
The Government appealed the adverse judgment of the district court, entered on July 22, 1998, directing that the Internal Revenue Service refund to United Dominion Industries, Incorporated, excess income tax payments made ten years prior to the filing of the consolidated returns at issue. These refunds were the result of deductions claimed by United Dominion from "carrying back" millions of dollars in product liability losses sustained by its subsidiaries. We reversed and ordered the matter remanded, holding that such losses were deductible only to the extent they offset income earned by the affected companies individually, rather than by the group as a whole. See United Dominion Indus., Inc. v. United States, 208 F.3d 452 (4th Cir. 2000).
2
On November 27, 2000, the Supreme Court granted United Dominion's petition for a writ of certiorari. Thereafter, the Court issued its opinion reversing our judgment and remanding the cause for further proceedings. See United Dominion Indus., Inc. v. United States, 121 S. Ct. 1934 (2001). In so doing, the Supreme Court endorsed the single-entity approach advocated by United Dominion and approved by the district court. We now find ourselves in receipt of the Court's certified judgment.
3
In conformance with the Supreme Court's decision, we reinstate the original judgment ordering payment of the refunds in the stipulated amount, plus statutory interest. This case is hereby remanded to the district court for further proceedings consistent with this opinion and that of the Supreme Court.
REMANDED
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1 B.R. 656 (1979)
In re Kandies L. RUST, Debtor.
Bankruptcy No. 379-01944.
United States Bankruptcy Court, M.D. Tennessee.
December 14, 1979.
Jane W. Wheatcraft, Hendersonville, Tenn., for debtor.
Sam J. McAllester, III, Nashville, Tenn., interim trustee.
MEMORANDUM
RUSSELL H. HIPPE, Jr., Bankruptcy Judge.
The meeting of creditors in this joint case was originally set by the court to be held at 9:00 A.M. on November 27, 1979. Mrs. Rust appeared; Mr. Rust did not. Pursuant to the court's local rules an order was entered requiring that Mr. Rust appear before the undersigned on December 11, 1979, to explain his failure to appear at the meeting. That order provided that if he did not appear at this hearing "without adequate excuse this case will be dismissed if no party in interest objects."
Mr. Rust failed to appear at the hearing. His attorney advised the court that the reason for his failure to appear both at the meeting and at the hearing was the fact that he was employed as a truck driver and on both occasions his employment required that he be away from Nashville. The attorney further advised the court that because of the irregularity of his driving schedule she could offer the court no assurance when Mr. Rust might be available for examination. Had Mr. Rust appeared at the hearing the court would have permitted him to proceed with the re-scheduled creditors' meeting following the hearing. The trustee was available to examine him having made a special trip to the courthouse for the purpose of examining those debtors who had not appeared when originally scheduled.
In construing the language in the Bankruptcy Act of 1898 and the Federal Rules of Bankruptcy Procedure requiring the attendance of bankrupts at first meeting of creditors this court has previously held that the term "shall attend" means just that and *657 that bankrupts should not be excused from appearing in person unless physically unable to do so because of illness or involuntary confinement. In re Phelps, 19 C.B.C. 517 (M.D.Tenn.1978) (B.J.). The instant case was filed under the new bankruptcy code but the provision in this new law is no less mandatory in this regard than that of the old act:
The debtor shall appear and submit to examination under oath at the meeting of creditors under section 341(a) of this title. Creditors, any indentured trustee, or any trustee or examiner in the case may examine the debtor. (Emphasis added)
11 U.S.C. § 343 (1979).
Rule 402 of the Federal Rules of Bankruptcy Procedure continues to provide that "the bankrupt [now `debtor'] shall (1) attend and submit to an examination at the first meeting [now simply `meeting'] of creditors. . . ." (Emphasis added).
The record of the meeting prepared by the deputy clerk who presided indicates that no creditors had any desire to examine Mr. Rust and the trustee may be satisfied with the examination of his wife but the court nevertheless is not inclined to relieve this debtor of his obligation to at least put in an appearance at the meeting of creditors. The language in the statute is unambiguous and if the court were to create an exception in circumstances such as this it would render administration of this new law substantially more burdensome. If, for example, the court were to take the position that debtors may be excused from attending meetings of creditors where there is no creditor interest the practical result might very well be that debtors simply would not attend the meetings when originally scheduled in the hope that they might be relieved of this responsibility altogether. The inconvenience to creditors who do attend these meetings as scheduled and the potential administrative problems which might arise from substantial number of debtors failing to attend meetings as scheduled militates against the court excusing attendance at creditors' meetings, at least at this stage in the transition to this new law. Even though the trustee may not desire to ask this debtor any questions at this time, upon seeing the debtor he might change his mind. There have been cases where the physical appearance of a bankrupt at the first meeting of creditors has led the trustee on a course of inquiry which resulted in valuable assets being recovered for the estate.
Under the new bankruptcy code as well as the old act Congress obviously contemplated that as a condition of the very substantial relief it was making available that those seeking that relief appear in person in a public place at least once before being granted that relief. Courts from time to time refer to the discharge in bankruptcy as "absolution" from debts thereby indicating that a certain degree of public ritual is not inappropriate.
In this case the attorney for Mr. Rust has indicated that his driving schedule may be such that he may never be able to attend a meeting of creditors as scheduled by this court. Although the court is aware that if Mr. Rust were to attend the meeting of creditors no questions might be asked of him, it cannot excuse him from the minimal obligations imposed as a condition to the substantial relief available. In holding that shall attend in the old act meant just that one court observed:
If hardship seems to result, it is to be remembered that a discharge of the bankrupt from his debts is a large privilege, and, while it cannot be refused, where the law has been complied with, except upon the grounds there mentioned, yet the steps leading up to it must be followed before it can be claimed of right.
In re Shanker, 138 F. 862, 864 (M.D.Pa. 1905).
An order will be entered dismissing this petition as to Mr. Rust without prejudice to his right to refile at such time as he is prepared to attend the creditors meeting when scheduled by the court.
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Court of Appeals
of the State of Georgia
ATLANTA, October 19, 2017
The Court of Appeals hereby passes the following order
A18I0037. DOUGLAS CARTER v. PHILLIP CONNELL et al..
Upon consideration of the Application for Interlocutory Appeal, it is ordered that it be
hereby DENIED.
LC NUMBERS:
2016CV968
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta, October 19, 2017.
I certify that the above is a true extract from the minutes
of the Court of Appeals of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk.
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211 F.2d 781
KILMER et al.v.GUSTASON et al.
No. 14467.
United States Court of Appeals Fifth Circuit.
March 31, 1954.
C. Clyde Atkins, Miami, Fla., Cecil T. Farrington, Ft. Lauderdale, Fla., Walton, Hubbard, Schroeder, Lantaff & Atkins, Miami, Fla., for appellants.
T. J. Blackwell, S. J. Powers, Jr., Cody Fowler and Walter Humkey, Blackwell, Walker & Gray and Fowler, White, Gillen, Yancey & Humkey, all of Miami, Fla., for appellees.
Before STRUM and RIVES, Circuit Judges, and DAWKINS, District Judge.
STRUM, Circuit Judge.
1
Plaintiff below, John E. Gustason, appellee here, individually recovered judgment for $15,000 for personal injuries to himself, and in a separate action as administrator of his wife's estate $27,000 for her wrongful death as a result of an automobile collision alleged to have been the result of the negligence of Marion A. L. Kilmer, who, together with his wife, Cora, were also killed in the collision.
2
The collision occurred in Iowa. The suits were brought in Florida. The plaintiff, Gustason, was the driver of one car, Mr. Kilmer driver of the other. The suits were brought against Kilmer's personal representatives. In Gustason's individual suit, the defendants filed a counterclaim asserting that Gustason's negligence was the proximate cause of the collision, but there was a jury verdict of not guilty on the counterclaim.
3
On appeal, defendants below contend that the trial court erred by permitting the plaintiff, Gustason, to testify as to certain of his own actions, and the position, speed and movements of his own car immediately before the collision. Defendants assert that the admission of this testimony was contrary to Section 90.05, Fla.Stat.Ann., sometimes called the "dead man" statute, which provides, inter alia, that no party to any action or proceeding, nor any person interested in the event (sic) thereof, shall be examined as a witness in regard to any transaction or communication between such witness and a person at the time of such examination deceased or insane. Defendants contend that the collision was a "transaction" within the purview of the statute, and Kilmer being dead the plaintiff, Gustason, should not have been allowed to testify.1
4
In U. S. A. C. Transport, Inc. v. Corley, 5 Cir., 202 F.2d 8, this court recently considered a like question arising under Section 38-1603(3) of the Georgia Code, which is of substantially like effect as the Florida statute in the respect here under consideration. We there held that in an action for damages by the surviving driver of an automobile for injuries sustained in a collision with a truck, the driver of which was dead at the time of the trial, it was not reversible error to permit the plaintiff to testify concerning his own actions, and the position and movements of his own car just prior to the collision.2
5
That case is decisive here. The trial judge permitted this plaintiff to testify only as to his own actions, and the position and movements of his own car.3 These were independent facts, not a part of any transaction or communication between the two drivers. The trial judge, however, carefully excluded all testimony by the plaintiff pertaining to the deceased's car and its movements, even to the extent of forbidding plaintiff to testify that there was in fact a collision. There was no reversible error in admitting the evidence in question. In any event, however, Gustason's testimony on these matters was merely cumulative, and therefore harmless, as all the facts surrounding the collision were also established by the testimony of other and disinterested witnesses. Sea Crest Corp. v. Burley, Fla., 38 So.2d 434; Smith v. Biscayne Park Estates, Fla., 42 So.2d 442; Community Natural Gas Co. v. Henley, 5 Cir., 54 F.2d 59.
6
The cause of action having arisen in Iowa, the elements and quantum of damages are governed by the laws of that state. Under Iowa law, loss of services and consortium are not recoverable individually by a husband in an action for the death of or injury to his wife. Appellants charge that reversible error was committed by the inclusion of this element of damage in appellees' complaint and opening statement, which the trial court allowed to go to the jury over objection, and that the court erred in refusing to specifically charge the jury that these elements of damage were not recoverable.
7
Amongst other things the trial judge stated to the jury in his final charge that the plaintiff originally claimed damages for the loss of services and consortium of his wife, but he had discovered that that element of damage was not recoverable under the laws of Iowa and was being abandoned, "and it is not a claim now included in his demand against the defendants' estate." This was a part of the court's general charge given to the jury just before it retired to consider its verdict. In our opinion, this charge adequately rectified any misstatement of the Iowa rule in counsel's opening statement to the jury.
8
Appellants also assert that the judgments are excessive, and should for that reason be reversed, citing several Iowa cases to support the charge of excessiveness. A federal appellate court, however, does not undertake to determine whether a verdict is excessive in fact, but only whether the district court abused its discretion as a matter of law in granting or refusing a new trial on the ground of excessiveness. Houston Coca-Cola Bottling Co. v. Kelley, 5 Cir., 131 F.2d 627; Braniff International Airways v. Harman, 5 Cir., 202 F.2d 928; Sunray Oil Corp. v. Allbritton, 5 Cir., 188 F.2d 751; Atlantic Coast Line R. Co. v. Burkett, 5 Cir., 192 F.2d 941. Certainly it can not be said that these judgments are so inordinately excessive as to be contrary to reason, or the result of sympathy, passion, or prejudice, so as to render them excessive in law.
9
Finding no error, the judgments appealed from are each
10
Affirmed.
Notes:
1
The Florida Supreme Court holds that "transactions and communications," as used in Section 90.05, supra, embrace every variety of affairs which can form the subject of negotiation, interviews, or actions, between two persons, and include every method by which one person can derive impressions or information from the conduct, condition or language of another. Embrey v. Southern Gas & Electric Corp., Fla., 63 So.2d 258, 263; Chapin v. Mitchell, 44 Fla. 225, 32 So. 875, 876
2
In the Georgia suit, plaintiff was permitted to testify, over objection, that he was going 50 miles per hour when he first came in sight of the bridge, near the south end of which the collision occurred; that he slowed down to 3 or 4 miles per hour when 30 or 40 feet south of the bridge; that he was on his own right hand side of the road as far as he could go and never got to the left of the center of the road
3
In the case at bar, the trial court permitted plaintiff to testify over defendants' objection: "That when approaching the curve (on which the accident occurred), Gustason was traveling not over 30 miles an hour. That Gustason saw more than one car approaching from the opposite direction on the other side of the highway. That the approaching car passed Gustason when he was about one-third of the way into the curve. That Gustason was on the right hand driving lane. That Gustason stayed on the right hand side of the road. That Gustason's car came to a sudden stop. That Gustason did not get out of his car on his own power. That the Gustason automobile was on the extreme edge of the pavement, on the southwest side (right hand) of the curve after it stopped. That the highway lanes of traffic were marked with a white center line and yellow no-passing lines in each lane of traffic. That before Gustason got out of his automobile the right wheels of his automobile were between six inches and a foot off the edge of the slab. That Gustason's left wheel was just inside the slab. That Gustason's left wheel was just inside the yellow line in his lane of traffic. That Gustason had been driving on the outside of his half of the road all the time in the curve."
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432 N.E.2d 52 (1982)
Candace L. EMIG, Administratrix of the Estate of Agnes Busack, Deceased, Plaintiff-Appellant,
v.
PHYSICIANS' PHYSICAL THERAPY SERVICE, Inc., Defendant-Appellee.
No. 3-281A55.
Court of Appeals of Indiana, Third District.
March 9, 1982.
Rehearing Denied May 5, 1982.
Saul I. Ruman, Hammond, for appellant.
T. Sherman McClean, Stults, Custer, Kutansky & McClean, Gary, Albert C. Hand, Hand, Muenich & Wilk, Hammond, for appellee.
HOFFMAN, Presiding Judge.
Candace Emig, acting as administratrix of the estate, appeals a negative judgment *53 on her claim for personal injuries suffered by Agnes Busack. The dispositive issue involves two instructions given by the trial court which Emig claims are erroneous.
While recovering from hip surgery, Agnes Busack, an 83-year-old patient, was undergoing physical therapy at the Munster Med-Inn. On May 3, 1977 Mrs. Busack, while restrained in a wheelchair, was taken to the physical therapy department of the Munster Med-Inn. Therapy was administered by agents of Physicians' Physical Therapy Service, Inc. After the therapy session was completed, Mrs. Busack was returned to her wheelchair but was left unrestrained and unattended. Mrs. Busack stood up, attempted to walk, and fell. Mrs. Busack suffered a broken hip during the incident.
At the trial, Louis Greenwald, president of the Indiana Chapter of the American Physical Therapy Association was called as an expert witness by Physicians' Physical Therapy Service, Inc. Over objection, Greenwald was permitted to testify that it was his opinion that reasonable care and skill had been used in the handling of Mrs. Busack. At the close of the trial, the following instructions, to which Emig objected, were given by the court:
"INSTRUCTION NO. 16
It is the duty of a physical therapist, or therapist's aide, in performing therapy upon a patient, to possess and use that degree of skill and learning ordinarily possessed and used by therapists or aides in similar practice, in the same or similar localities at the time of the treatment or service.
In deciding whether a therapist or aide possessed and used the degree of skill and learning required, you may consider only the evidence presented by those called as expert witnesses.
* * * * * *
"INSTRUCTION NO. 18
A plaintiff may not recover for alleged malpractice in an action against a physical therapist service, whether he be a therapist's aide or a registered therapist, unless she proves by a preponderance of the evidence that the defendant therapist service deviated from the standards of practice utilized under like circumstances by the therapy services in the same or similar localities who treat the particular type of ailment or injury involved. In determining what the standard of practice is, you must consider only the expert testimony by the expert witnesses, including the defendants."
The underlying issue, crucial to the determination of this cause, is whether the decision not to restrain Mrs. Busack was a medical decision. In Adkins v. Ropp (1938), 105 Ind. App. 331, at 335, 14 N.E.2d 727, at 729, this Court stated rules applicable in medical malpractice cases as follows:
"In the absence of some countervailing circumstances, the general rule in malpractice cases is that, in determining whether the physician and surgeon has exercised ordinary skill and care in the diagnosis of the disease and treatment of the patient and the result obtained thereby, the jury must be guided solely by the testimony of physicians and surgeons because of the scientific nature and character of the questions usually involved in such cases, and the jury cannot set up standards of skill and care of its own."
See also Worster v. Caylor (1953), 231 Ind. 625, 110 N.E.2d 337; Davis v. Schneider (1979), Ind. App., 395 N.E.2d 283; Cochrane v. Lovett (1975), 166 Ind. App. 684, 337 N.E.2d 565,
When however, the matters at issue are within the common knowledge and experience of the jury, expert testimony regarding the exercise of reasonable care is improper and should be excluded. Rosenbalm v. Winski (1975), 165 Ind. App. 378, 332 N.E.2d 249. It also follows that if the decision not to restrain Mrs. Busack was a ministerial as opposed to a medical decision, this case is not premised on a medical malpractice theory, but rather, a common negligence theory to which the reasonable man standard must be applied.
Fowler, Admx. v. Norways Sanatorium (1942), 112 Ind. App. 347, 42 N.E.2d 415 *54 is pertinent in determining if this decision was a medical decision. In Fowler this Court held:
"The guarding and protection of patients suffering from mental disease is not a medical act and it is not necessary to have a license to practice medicine to perform such acts. The fact that a physician directs or orders such an act does not make it a medical act. Reed was an administrative officer of the sanitorium [sic] as well as a physician. We know of no reason why he, as an officer of the sanatorium, could not direct the performance of routine duties by its employees, and the fact that he was a physician or that the duties were connected with the care of his private patient would not necessarily make the acts of the employees medical acts." Id. at 358, 42 N.E.2d at 420.
The Court further noted:
"Here the direction of the head nurse of Norways Sanatorium to the appellee, Carl Jones, to take appellant's decedent to the office of Dr. Beeler on the seventh floor of the Hume-Mansur building, and the acts or omissions of Carl Jones as an attendant and employee of the sanatorium in guarding or protecting him while he was being so taken and while he was so located, were routine administrative or ministerial acts of the hospital itself and in no sense medical acts, and for any negligence in the performance thereof the sanatorium, and if the negligent act or omission was an act or omission of its attendant, the attendant also, would be liable." Id. at 359, 42 N.E.2d at 420.
Closely analogous to the instant case is Cramer v. Theda Clark Memorial Hospital (1969), 45 Wis.2d 147, 172 N.W.2d 427 in which a patient, having only one arm restrained, loosened the restraint with his free hand and fell while attempting to stand. In its analysis of the case the Wisconsin Supreme Court stated:
"Is it necessary for Cramer to establish the standard of care of other hospitals in the general area to assist the jury in making a determination as to the negligence alleged in his complaint? It is quite true the complaint alleges facts relating to the type of hospital care which requires expert testimony. These allegations go to hospital treatment in a professional sense. However, the allegations concerning negligence in leaving Cramer unattended and under inadequate restraint and removing the cloth restraint of one hand in order to allow him to feed himself are matters of routine care and do not require expert testimony.
* * * * * *
"We do not consider this complaint one for malpractice or for breach of a standard of care so technical in nature as to require expert testimony. Consequently, the trial court should have allowed the issues which could be determined by common knowledge to go to the jury and instructed them on such reasonable care. It should have withheld only those issues upon which there was the necessity for expert testimony to establish a standard." Id. at 153-154, 172 N.W.2d at 430-431.
Physicians' Physical Therapy Service, Inc. attempts to distinguish Fowler and Cramer on the grounds that the institutions involved in those cases had knowledge that the patients were mentally disturbed or confused and were in need of restraints. While these factors are certainly relevant with regard to the reasonableness of an institution's actions, they have no bearing whatsoever in determining whether a decision is medical as opposed to routine and ministerial.
The logic of Cramer is persuasive. It is therefore held that the decision not to restrain Mrs. Busack was not a medical decision but rather a routine, ministerial decision. As such, the jury was improperly instructed regarding the standard of care and reliance on expert testimony. Additionally, the expert testimony was improperly admitted with regard to matters within the common knowledge and experience of the jury.
Physicians' Physical Therapy Service, Inc. argues that even if this Court *55 finds the instructions to be erroneous, the judgment should be sustained because Emig failed to prove that Mrs. Busack's injuries were the result of the lack of restraint. In support of this argument, Physicians' Physical Therapy Service, Inc. refers the Court to certain testimony which indicates that Mrs. Busack's hip broke by itself, and it was this break which caused her to fall. This argument however, ignores the fact that it may be possible that if Mrs. Busack had been restrained and not allowed to stand unsupported, the hip would not have broken. It cannot be said that as a matter of law, Emig failed to prove proximate cause. In light of the erroneous instructions and improperly admitted expert testimony, this cause is reversed and remanded for proceedings consistent with this opinion.
Reversed and remanded.
GARRARD and STATON, JJ., concur.
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16 Cal.App.4th 734 (1993)
20 Cal. Rptr.2d 256
CITY AND COUNTY OF SAN FRANCISCO, Plaintiff and Respondent,
v.
GERTRUDE C. DALEY, Defendant and Appellant.
Docket No. A055696.
Court of Appeals of California, First District, Division Two.
June 16, 1993.
*736 COUNSEL
Du Charme & Cohen and Matthew J. Cohen for Defendant and Appellant.
Louis H. Renne, City Attorney, and Suzanne A. Tollefson, Deputy City Attorney, for Plaintiff and Respondent.
OPINION
BENSON, J.
Gertrude C. Daley (Gertrude) appeals from an order appointing a receiver to bring property she owns into compliance with the San Francisco Municipal Code.[1] She contends the trial court lacked the authority to appoint a receiver, abused its discretion by appointing a receiver, and denied her a fair hearing prior to the appointment. We affirm.
*737 I. FACTUAL AND PROCEDURAL BACKGROUND
The proceedings which ultimately led to the appointment of a receiver in this case were lengthy. In order to evaluate Gertrude's claims on appeal, particularly her claim the trial court abused its discretion by appointing a receiver, we must recount the facts leading up to the appointment in detail.
On August 29, 1988, plaintiff City and County of San Francisco (the City) commenced this action against Gertrude, her daughter Carolyn Daley (Carolyn), and Does 1 through 50. The City's complaint charges them with maintaining their single-family residence in a manner constituting a public nuisance. The residence is located at 45 Cerritos Avenue in the Ingleside Terraces neighborhood of San Francisco.[2] The following nine conditions, set forth in exhibit B to the complaint, are alleged to constitute the public nuisance: (1) downspouts not connected to drainage system; (2) accumulation of debris both inside and outside house; (3) broken rear windows and front windows covered with plywood; (4) missing handrail on house stairs; (5) no landing or steps at basement door and garage door damaged and cannot be closed; (6) deteriorated, unsafe, and hazardous rear stairs; (7) lack of a furnace or heater, water heater, bathroom, and kitchen; (8) improperly installed plumbing system; and (9) main electrical service in a hazardous condition. Each of these conditions is also alleged to violate provisions of the San Francisco Municipal Code. Exhibit B notes "[t]he violations listed herein are those that were observed, and do not include violations which may be concealed and which become evident when work is begun."
On October 3, 1988, Gertrude's son, Ron Daley (Ron), answered the complaint as "Defendant Doe 47" and denied the Property was being maintained in a manner constituting a public nuisance. Ron's answer did not identify the nature of his interest in the Property. Neither Gertrude nor Carolyn answered the complaint. When they failed to answer, the City filed a request for entry of default, which the clerk entered as requested.
On November 22, 1988, the trial court held a hearing on the City's request for injunctive relief. Neither Gertrude nor Carolyn appeared at this hearing. Ron did appear, presenting the City's attorney with "a Xeroxed piece of paper purporting to indicate his unrecorded interest in ownership" in the Property. At the conclusion of the hearing, the court entered judgment in favor of the City, finding the Property to be a public nuisance and ordering Gertrude and Carolyn to remedy the violations listed in the complaint. The judgment gave them 30 days to apply "for any and all building permits required by law to perform all work necessary to cause said premises, and all *738 parts thereof, to conform to law" or "for a permit to demolish the structure at said premises."
Following the judgment in the City's favor, a group of 12 neighboring property owners won a $58,744.16 judgment against Ron in a separate private nuisance action. This judgment included punitive damages. The court in the private nuisance action found "Ron Daley is the party responsible for this nuisance. Mr. Daley at all times has held an equitable ownership interest in the property and is admittedly the person who has controlled the use and condition of the property."
On April 23, 1991, at the City's request, the trial court directed Gertrude, Carolyn, and Ron to appear and show cause why they should not be held in contempt for failing to comply with the terms of the public nuisance judgment. According to the City's attorney, all three Daleys were named in the order to show cause "because of past problems in determining ownership. At one time Gertrude and Carolyn owned the property together. Then Carolyn transferred her interest to Ron Daley in February of 1989. Mr. Daley transferred his interest back to Gertrude Daley back in July of 1990."
Only Ron appeared at the June 12, 1991, hearing on the order to show cause, although he stated he was appearing on behalf of Gertrude as well pursuant to a recorded power of attorney. When the commissioner expressed her concern that this power of attorney was set to expire on August 21, 1991, Ron assured the commissioner that it would be extended. The commissioner also expressed her concern that Ron was denying inspectors for the City access to the Property while simultaneously representing Gertrude under a power of attorney.[3] After the commissioner ascertained that Carolyn held no current interest in the Property, the City stipulated to her dismissal from the action. The actual hearing on the order to show cause was continued when Ron declined to stipulate to have the matter heard by a commissioner.
On June 19, 1991, the date set for the continued hearing on the order to show cause, Ron once again appeared without Gertrude. The trial court expressed its inclination to jail Ron for contempt but continued the hearing to enable him to retain an attorney.
*739 On June 27, 1991, the date of the next hearing, Ron appeared without Gertrude and without counsel. At the outset of this hearing, Ron attempted to exercise a peremptory challenge against the trial judge, which the court denied as untimely. The City then called its inspector, Torres-Gil, as a witness. Torres-Gil testified he believed the majority of the conditions set forth in exhibit B to the complaint still existed but admitted he was not sure because Ron and Gertrude had refused him access to the Property. (See ante, fn. 3.) Thereupon, the trial court continued the hearing for another month, ordering Ron to provide the inspector with access to the Property. Torres-Gil then wrote Ron and Gertrude a letter suggesting three possible dates for the inspection; they never responded to his letter. Instead, near the end of the month-long continuance, Ron called the City's attorney and "indicated that he would not allow an inspection of the Property, because he felt it was `not necessary.' [She] reminded him that he was under court order. He still refused to provide for inspection and indicated he would take up the matter with [the trial court] on July 30."
On July 30, 1991, Ron appeared for the continued hearing on the order to show cause. The City's attorney advised the trial court that Ron had refused to provide access to the Property as previously ordered by the court. The court again ordered Ron to make the Property available for inspection, setting an inspection for August 13, 1991, at 2 p.m., and continuing the hearing on the order to show cause to August 22, 1991. The court again advised Ron to consult with an attorney.
On August 12, 1991, the day before the scheduled inspection, Ron filed a document entitled "Motion to Set Aside Denial of Defendant's Motion for Peremptory Challenge." He noticed the motion for hearing in the department of the presiding judge, not the department of the judge hearing the pending order to show cause. The same day, Ron personally delivered a copy of the motion to the City's attorney and advised her he would not permit the inspection set for the next day. She "reminded him that he was under court order to provide the inspection and he insisted that the inspection was not going to happen." The City's attorney and Torres-Gil went to the Property at the scheduled inspection time, but Ron did not show up. On August 15, 1991, Torres-Gil called Ron to try to reschedule the inspection before the next hearing, but Ron refused to permit the inspection.
On August 22, 1991, the date set for the continued hearing on the order to show cause, Ron failed to appear. After being advised of Ron's failure to permit the scheduled inspection, the trial court held him in contempt, issued a general arrest warrant for him, and set bail at $5,000. On August 27, 1991, Ron appeared in the department of the presiding judge for the hearing on his *740 motion to set aside the denial of the peremptory challenge, which the presiding judge denied. After this hearing, the City's attorney provided a bailiff with a copy of the outstanding arrest warrant, and Ron was taken into custody. Two bailiffs brought Ron to the judge assigned to the order to show cause, who ordered Ron jailed for five days for contempt of court.
On September 6, 1991, Ron appeared at the next hearing on the order to show cause. When the trial court asked him to explain why he had refused to permit an inspection of the Property on August 13, 1991, as ordered, Ron replied, "[t]he power of attorney that I had to handle this matter ran out as of the 21st [of August] according to the recording, but it was revoked as of August the 3rd, your honor. This property is owned by Gertrude Daley." In light of the alleged revocation of Ron's power of attorney to act on behalf of Gertrude, the court once again continued the hearing on the order to show cause, ordering both Ron and Gertrude to appear personally at the next hearing.
On September 13, 1991, both Ron and Gertrude appeared in court. Gertrude confirmed she owned the Property, that Ron had been repairing it for her, that she had authorized Ron to appear for her at the previous hearings, and that she had revoked his power of attorney on August 3, 1991. The court then ordered Gertrude to permit an inspection of the Property on September 19, 1991, at 2 p.m., authorizing forcible entry in the event an inspection was denied. The court refused to permit Ron to participate in the hearing, stating "You have no standing in this case. You don't have a power of attorney. You don't own the property.... [¶] You can't unless you're an attorney. You can't speak on behalf of your mother."
On September 23, 1991, the parties appeared in court to report on the September 19, 1991, inspection. This time Gertrude was accompanied by a different son, Phillip Daley, who stated he was a licensed contractor and was helping his mother repair the Property. Torres-Gil testified as to the contents of the City's inspection report, which was introduced as an exhibit. According to the report, most of the nine violations listed in exhibit B to the City's complaint had either not been corrected or had been corrected without proper permits. The report also enumerated the plumbing and electrical problems referred to in items 8 and 9 of exhibit B. (See ante, p. 737.) Finally, the report set forth 20 additional violations of the San Francisco Municipal Code observed during the inspection.
At the conclusion of the hearing, the court continued the matter for another month, ordering Gertrude "to get the necessary permits to either correct the work that has been done illegally or the work that needs to be *741 done and be back in court in thirty days showing proof that permits have been issued and the work is going to be done, and I am going to issue an order on that." The court warned Gertrude "[i]f you don't get those permits in thirty days, I am going to have to require the City to go in and do the work for you." As promised, the court confirmed its ruling in a written order, which ordered Gertrude to "apply for and obtain a building permit application to correct the outstanding violations within 30 days hereof." Following this hearing, the City, citing continued noncompliance with the judgment, noticed a motion for the appointment of a receiver to correct the outstanding violations at the Property.
On November 1, 1991, the trial court held a combined hearing on the outstanding order to show cause and the City's motion for the appointment of a receiver. This time Gertrude was accompanied by Ron. The court asked Gertrude whether she had complied with the court's order that she apply for and obtain a building permit application to correct the outstanding violations at the Property. Gertrude replied that she had obtained a permit. The City's attorney then explained, "[t]he building permit that has been obtained by Mrs. Daley is an over the counter permit for smoke detectors, dry rot, insulation and other minor matters that don't even begin to address the items in the injunction or the items in the [inspection report]. The total cost of this job is estimated at $970.00 which would not even begin to cover the amount of work necessary to fix the violations on the property. This is simply insufficient to satisfy this court's order of September 23rd ordering Mrs. Daley to obtain a complete building permit application." Gertrude attempted to defer to Ron for a response, but the City's attorney objected that he had no standing to participate in the proceeding. The court, citing three years of noncompliance, granted the City's request for appointment of a receiver. At this point, Ron requested a continuance so that Gertrude could hire an attorney, but the court stated that it had already ruled.
The court subsequently confirmed its appointment of a receiver in a written order. The stated purpose of the receivership was "to make necessary repairs and alterations to bring the property into full compliance with the San Francisco Municipal Code." Among other things, the receiver was granted the powers enumerated in Code of Civil Procedure section 568[4] and was authorized "[t]o undertake, to employ and to enter into contracts with persons and services as necessary to repair the Property." However, the *742 receiver was ordered to "conduct a study of the estimated cost of repairs and report to the court on the feasibility of rehabilitation prior to beginning such repairs." Gertrude has filed a timely notice of appeal from the order appointing a receiver.[5] (See Code Civ. Proc., § 904.1, subd. (g) [order appointing a receiver is appealable].)
II. DISCUSSION
A. The Trial Court Had the Authority to Appoint a Receiver to Enforce Its Judgment.
The trial court's written order appointing a receiver cites Code of Civil Procedure former section 564, subdivision 3, as the basis for the receivership.[6] This statute has been recodified in identical language as Code of Civil Procedure section 564, subdivision (b)(3),[7] which provides as follows: "In superior court a receiver may be appointed by the court in which an action or proceeding is pending, or by a judge thereof, in the following cases: ... [¶] After judgment, to carry the judgment into effect." The relevant inquiry in this case is whether the trial court had the authority to appoint a receiver to carry its November 22, 1988, judgment into effect.
(1) Gertrude contends the provisions of Code of Civil Procedure section 564, subdivision (b)(3), are inapplicable to abatement proceedings. In support of this argument, she cites People v. Bergholm (1960) 181 Cal. App.2d 778 [5 Cal. Rptr. 608]. In Bergholm, the owner of a junkyard and the County of Contra Costa stipulated to a judgment declaring the junkyard to be a public nuisance, ordering the owner to abate the nuisance, and providing for the appointment of a commissioner to abate the nuisance in the event the owner failed to do so within a specified time. (People v. Bergholm, supra, 181 Cal. App.2d at pp. 779-780.) When the owner failed to abate the nuisance within the specified time, the trial court held him in contempt and *743 appointed a commissioner to abate the nuisance. (Id. at p. 780.) The owner later appealed from a judgment accepting and approving the commissioner's report following the abatement of the nuisance. (Id. at p. 779.) On appeal, the owner contended, inter alia, that the court should have appointed a receiver to abate the nuisance, rather than a commissioner. (Id. at p. 782.) The Court of Appeal disagreed, reasoning as follows:
"Section 564 of the Code of Civil Procedure provides that `a receiver may be appointed ... after judgment, to carry the judgment into effect.' The section is permissive only and there may be cases where this procedure should be followed to avoid irreparable injury to the parties or an invasion of their constitutional rights. We are satisfied that this is not such a case. One of the principal purposes of a receivership is the preservation of property pending litigation concerning or affecting it, so that the relief ultimately awarded by the judgment may be effective. [Citation.] Ordinarily, receiverships are time-consuming and are not designed to accomplish the prompt action required in the abatement of a nuisance. Inherent in the processes of abatement is the requirement that the agent of the court act with reasonable expedition but at the same time refrain from acts not contemplated by or not reasonably necessary to the execution of the order. Appellant admitted that he was maintaining a nuisance and that it must be abated. He said nothing about a receiver but stipulated that the court might appoint a commissioner. He was given more than seven months to comply with the order and by his failure to act impliedly consented once more to action by a commissioner.... Under all the circumstances, and particularly in view of the stipulation, we are of the opinion that the court had jurisdiction to proceed as it did." (People v. Bergholm, supra, 181 Cal. App.2d at pp. 783-784.)
Gertrude contends the above language from Bergholm "exclud[es] subsection [(b)](3) of [Code of Civil Procedure] § 564 as a basis of jurisdiction for a receiver to abatement proceedings." Not so. In Bergholm, it was the property owner, not the governmental entity, who argued for a receivership, contending the appointment of a commissioner was inadequate to protect his rights. In this context, the Bergholm court observed the appointment of a receiver is more time-consuming than the appointment of a commissioner. (People v. Bergholm, supra, 181 Cal. App.2d at p. 783.) Given that the property owner had previously stipulated to the appointment of a commissioner, he could not be heard to insist upon the more time-consuming process of a receivership. (Id. at pp. 783-784.) Far from suggesting receivers could never be used to carry judgments in abatement proceedings into effect, the Bergholm court expressly recognized "there may be cases where this procedure should be followed to avoid irreparable injury to the parties or an invasion of their constitutional rights." (Id. at p. 783.)
*744 The plain language of Code of Civil Procedure section 564, subdivision (b)(3), permits the appointment of a receiver "[a]fter judgment, to carry the judgment into effect." There is nothing in the statute to suggest the Legislature intended to exclude judgments in abatement proceedings from the scope of this statutory authorization to appoint receivers. Accordingly, we hold that Code of Civil Procedure section 564, subdivision (b)(3), gives trial courts the discretion to appoint receivers to carry judgments in abatement proceedings into effect.
B. The Trial Court Did Not Abuse Its Discretion by Appointing a Receiver in This Case.
(2) We review a trial court's decision to appoint a receiver to carry a judgment into effect for an abuse of discretion. "`"The rule is established that the appointment of a receiver rests largely in the discretion of the trial court and that its action in appointing a receiver or its refusal of an application for the appointment of such an officer will not be disturbed in the absence of a showing that the court's discretion has been abused."' [Citation.]" (Alderson v. Alderson (1986) 180 Cal. App.3d 450, 467 [225 Cal. Rptr. 610]; Sibert v. Shaver (1952) 113 Cal. App.2d 19, 21 [247 P.2d 609]; Elson v. Nyhan (1941) 45 Cal. App.2d 1, 4-5 [113 P.2d 474].) (3a) Gertrude advances three main arguments in support of her assertion the trial court abused its discretion by appointing a receiver in this case. We address each of these arguments in turn.
First, Gertrude seeks to invoke the rule that the appointment of a receiver is a drastic remedy to be employed only in exceptional circumstances. (4) As stated by the court in Elson v. Nyhan, supra, 45 Cal. App.2d at page 5, "[r]eceivers are often legal luxuries, frequently representing an extravagant cost to a losing litigant. When it appears that no reasonably certain benefit will result to one litigant, and a distinct disadvantage will result to another, courts should weigh carefully the propriety of appointing a receiver."
(3b) Although Gertrude correctly recites the applicable rule of law, her argument proves too much. The procedural history of this case, as set forth in great detail above, demonstrates beyond peradventure that this is an exceptional case warranting the appointment of a receiver. Gertrude and her agent Ron repeatedly thumbed their noses at the City's efforts to inspect the Property and refused to abate the public nuisance and code violations existing at the Property. They transferred title to the Property at will in an effort to avoid responsibility. They consistently pointed to each other when confronted with their failure to take remedial action and their flagrant *745 violations of court orders. Under these circumstances, it is difficult to imagine why the trial court would not have appointed a receiver.
Second, Gertrude argues the trial court abused its discretion by appointing a receiver because it failed to consider remedies short of a receivership. (5) We note at the outset that the availability of other remedies does not, in and of itself, preclude the use of a receivership. (Sibert v. Shaver, supra, 113 Cal. App.2d at p. 21.) Rather, a trial court must consider the availability and efficacy of other remedies in determining whether to employ the extraordinary remedy of a receivership. (Alhambra-etc. Mines v. Alhambra G. Mine (1953) 116 Cal. App.2d 869, 873 [254 P.2d 599].)
(3c) In this case, Gertrude's contention the trial court failed to consider options short of a receivership is utterly unsupported by the record. Gertrude's assertion the trial court should have sought to achieve compliance by cutting electricity and water service to the Property, which she maintains was continuously unoccupied, is nonsensical. If jailing Gertrude's son for contempt for five days was ineffective to secure compliance, we cannot fathom why cutting off electricity and water service to an unoccupied piece of property would have been any more effective. Gertrude's contention the City should have "attempt[ed] to seize the property under eminent domain, or otherwise, to demolish it" is similarly misplaced. There is no evidence the City had any interest in acquiring the Property for a public use (see Cal. Const., art. I, § 19) and, hence, no reason to have required the City to exercise its powers of eminent domain. And, contrary to Gertrude's suggestion, the trial court did offer demolition as an option. The court's November 22, 1988, judgment expressly gave Gertrude the option to apply "for a permit to demolish the structure at said premises." Likewise, the record belies Gertrude's claim "[n]o sanctions were ever granted against [her]." The trial court jailed Gertrude's son for contempt. Since Gertrude readily admitted her son had been acting as her agent, the contempt citation was, for all intents and purposes, a sanction against her.
Finally, Gertrude contends the trial court abused its discretion by authorizing the receiver to correct all outstanding code violations at the Property. According to Gertrude, the receiver's authority should have been limited to correcting the violations specifically identified in exhibit B to the City's complaint. We disagree.
By its own terms, the list of violations set forth in exhibit B was not intended to be exhaustive. Exhibit B expressly notes "[t]he violations listed herein are those that were observed, and do not include violations which may *746 be concealed and which become evident when work is begun." Nor is the judgment limited to the violations set forth in exhibit B. Rather, the judgment requires Gertrude to apply "for any and all building permits required by law to perform all work necessary to cause said premises, and all parts thereof, to conform to law." Contrary to Gertrude's assertion, the receivership order does not "confer on the receiver the power to virtually renovate the premises to his taste and at no limitation of cost." The order requires the receiver to "conduct a study of the estimated cost of repairs and report to the court on the feasibility of rehabilitation prior to beginning such repairs." This procedure affords an ample safeguard against the excesses Gertrude fears.
C. The Trial Court Provided a Fair Hearing Prior to the Appointment of a Receiver.
(6) Gertrude contends the hearing on the appointment of a receiver was unfair. This contention does not merit an extended discussion.
First, Gertrude argues that given her hearing problems and her age (81 years), the trial court should have permitted her son Ron to assist her at the hearing. In light of the fact Gertrude had previously revoked Ron's power of attorney (directly contradicting Ron's representation the power of attorney would be extended) and then used this revocation as a justification for violating an outstanding court order, the trial court's decision not to permit further participation by Ron was fully justified.
Second, Gertrude asserts the trial court's previous order did not apprise her of the scope of the permit she was being required to obtain. In fact, the previous order stated she was to "apply for and obtain a building permit application to correct the outstanding violations." (Italics added.) The judgment entered three years earlier also identified the scope of the required permit, requiring Gertrude to apply "for any and all building permits required by law to perform all work necessary to cause said premises, and all parts thereof, to conform to law." (Italics added.)
Finally, Gertrude contends the trial court should have granted Ron's request for a continuance of the receivership hearing. There are two procedural reasons why a continuance was properly denied the request for a continuance was made by Ron, not Gertrude, and it was made after the trial court had already ruled. There is also a major substantive reason why a continuance was properly denied Gertrude and Ron had already been given three years to abate the public nuisance at the Property and had failed to do so.
*747 III. DISPOSITION
The judgment is affirmed, with costs to the City.
Kline, P.J., and Phelan, J., concurred.
Appellant's petition for review by the Supreme Court was denied September 16, 1993.
NOTES
[1] Because several of Gertrude's children played significant roles in these proceedings, we will refer to each of the Daleys by his or her first name for the sake of clarity.
[2] Henceforth, we will refer to this residence as "the Property."
[3] Ron's power of attorney to act on behalf of Gertrude was recorded on August 27, 1990. Nonetheless, on May 30, 1991, Ron refused to permit Rafael Torres-Gil (Torres-Gil), a senior building inspector for the City, access to the Property on the grounds Ron did not own the Property and, thus, could not grant entry. Torres-Gil then called Gertrude to request an inspection. According to Torres-Gil, Gertrude told him "her son, Ron, had the keys and to call again ... to set up an appointment for entry." When Torres-Gil called again, Gertrude refused his request for an inspection. Ron and Gertrude also failed to respond to a June 5, 1991, letter from the City's attorney requesting an inspection of the Property prior to the June 12, 1991, hearing.
[4] Code of Civil Procedure section 568 provides "[t]he receiver has, under the control of the court, power to bring and defend actions in his own name, as receiver; to take and keep possession of the property, to receive rents, collect debts, to compound for and compromise the same, to make transfers, and generally to do such acts respecting the property as the court may authorize."
[5] The notice of appeal was signed by both Ron and Gertrude. However, only Gertrude filed an appellate brief. Accordingly, we deem Ron's appeal to have been abandoned.
[6] The trial court's order also cites Code of Civil Procedure former section 564, subdivision 8 (now § 564, subd. (b)(8)), and "the inherent power of the equity court to appoint a receiver to abate the Municipal Code violations existing on the Property," as bases for the receivership. In light of our conclusion Code of Civil Procedure former section 564, subdivision 3, authorized the appointment of a receiver in this case, we need not consider the propriety of these alternative bases for the appointment. For the same reason, we need not consider the applicability of Health and Safety Code section 17980.7, subdivision (c), which authorizes the appointment of a receiver to abate code violations in certain enumerated circumstances. This statute does not affect the availability of a receiver under Code of Civil Procedure section 564. (See Health & Saf. Code, § 17980.7, subd. (g) ["These remedies shall be in addition to those provided by any other law."].)
[7] For ease of reference, we will refer to the current version of the statute throughout the remainder of this opinion.
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527 F.2d 876
Melvin Leroy TYLER, Appellant,v.Harold R. SWENSON, Warden, Missouri State Penitentiary, Appellee.
No. 75--1453.
United States Court of Appeals,Eighth Circuit.
Submitted Nov. 11, 1975.Decided Jan. 6, 1976.Rehearing Denied Jan. 30, 1976.
James R. Mendillo, Belleville, Ill., for appellant.
Neil MacFarlane, Asst. Atty. Gen., Jefferson City, Mo., for appellee.
Before GIBSON, Chief Judge, and LAY and STEPHENSON, Circuit Judges.
STEPHENSON, Circuit Judge.
1
The sole issue raised in this habeas corpus appeal, brought under 28 U.S.C. § 2254, is whether the petitioner is entitled to have his state court sentence reconsidered because the state trial court may have relied on allegedly invalid 1964 convictions in imposing sentence. The district court1 denied petitioner Melvin Tyler's application for writ of habeas corpus.2 We affirm.
2
Petitioner was convicted by a jury in 1969 of assault with intent to kill and given a 25 year sentence in accordance with the Missouri second-offender statute, Mo.Ann.Stat. § 556.280. Following exhaustion of his available state remedies, Tyler filed a petition for writ of habeas corpus seeking to set aside his sentence. Tyler v. State, 496 S.W.2d 793 (Mo.1973). Tyler had pleaded guilty to two charges in 1964, burglary and assault with intent to kill. Petitioner contends that the 1969 sentence is improper and should be reconsidered because of the allegedly concomitant invalidity of his two 1964 guilty pleas.3
3
After an evidentiary hearing, the district court held that there was no connection between the 1964 convictions and the 1969 sentence of the petitioner. That court specifically found the record demonstrated that the state court, in sentencing petitioner, in 1969, relied only on Tyler's 1965 robbery convictions and not on his 1964 convictions. The lower court, therefore, deemed it unnecessary to consider the propriety of the 1964 convictions and denied the application for writ of habeas corpus.
4
The Supreme Court decision in United States v. Tucker, 404 U.S. 443, 446--48, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), makes clear that a sentence which is tainted by invalid convictions cannot stand. See Irby v. Missouri,502 F.2d 1096, 1099 (8th Cir. 1974); Garrett v. Swenson, 459 F.2d 464, 466 (8th Cir. 1972). If petitioner's 1969 sentence was enhanced by his 1964 convictions, he would ordinarily be entitled to a hearing under Tucker in order that the district court could determine the validity of the 1964 convictions. Moreover, a finding that the convictions are invalid would also mean that petitioner would be entitled to resentencing. See Garrett v. Swenson, supra, 459 F.2d at 466.
5
After a thorough examination of the record, we firmly agree with the district court's holding that the state trial court did not utilize the 1964 convictions to enhance the 1969 sentence of the petitioner. See Tyler v. Swenson, 382 F.Supp. 1028, 1029 (E.D.Mo.1974). At no time in the 1969 sentencing proceedings did the court expressly mention the 1964 convictions.
6
The record does not reveal any evidence relating to the 1964 convictions that would have given the trial judge knowledge of them. In fact, in assessing petitioner's punishment, the court mentioned the four 1965 convictions immediately prior to the imposition of sentence and totally failed to refer to the 1964 convictions.4 We conclude there is no connection between petitioner's 1969 sentence and the 1964 convictions. The federal courts, therefore, have no jurisdiction to entertain an attack upon the 1964 convictions. Brown v. Wainwright, 447 F.2d 980 (5th Cir. 1971); Cappetta v. Wainwright, 406 F.2d 1238 (5th Cir.), cert. denied, 396 U.S. 846, 90 S.Ct. 55, 24 L.Ed.2d 96 (1969).
7
Accordingly, the district court's denial of the petition for habeas corpus is affirmed.
1
The Honorable H. Kenneth Wangelin, United States District Judge for the Eastern District of Missouri. The district court's opinion is reported at 382 F.Supp. 1028 (E.D.Mo.1974)
2
In a related appeal, Tyler appeals from the denial of a separate application for habeas corpus in which he contests the validity of the 1969 sentence in view of an invalid prior 1965 robbery conviction. See Tyler v. Swenson, 527 F.2d 877 (8th Cir., filed Jan. 6, 1976)
3
It is contended that the 1964 pleas were coerced because: (1) the charges were made under the Missouri second-offender statute; (2) the prosecutor threatened that petitioner would be sentenced to 50 years if he did not plead guilty; and (3) the guilty pleas did not comply with Missouri Supreme Court Rule 25.04
4
The state sentencing court commented as follows:
I am going to rule on the evidence. The Court finds beyond a reasonable doubt that on January 18, 1965, defendant, Melvin Leroy Tyler, entered a plea of guilty in Division No. 12 of this Court to four separate offenses of robbery in the first degree by means of a dangerous and deadly weapon. Thereafter, he was granted allocution, or given the opportunity to state why sentence should not be imposed. There being no legal reason advanced why sentence should not be imposed, the defendant was sentenced to serve eight (8) years in each case, the terms to run concurrently.
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938 N.E.2d 1209 (2010)
James NORWOOD, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 49A04-1004-CR-212.
Court of Appeals of Indiana.
December 15, 2010.
*1210 Barbara J. Simmons, Oldenburg, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Arturo Rodriguez II, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
BROWN, Judge.
James Norwood appeals his conviction for invasion of privacy as a class A misdemeanor.[1] Norwood raises one issue which we revise and restate as whether the evidence is sufficient to sustain his conviction for invasion of privacy as a class A misdemeanor. We reverse.
The relevant facts follow. On August 15, 2008, the court issued an ex parte order for protection under Ind.Code § 34-26-5-9(b), which enjoined Norwood from threatening to commit or committing acts of domestic or family violence, stalking, or a sex offense against Shenika Gordon, the mother of Norwood's child, and prohibited Norwood from harassing, annoying, telephoning, contacting, or directly or indirectly communicating with Gordon. The ex parte order stated that it expired on August 15, 2010. A hearing was subsequently held, and the court issued a protective order on October 9, 2008, which enjoined Norwood from threatening to commit or committing acts of domestic or family violence, stalking, or a sex offense against Gordon and prohibited Norwood from harassing, annoying, telephoning, contacting or directly or indirectly communicating with Gordon. The order also addressed parenting time and indicated that it expired on October 9, 2009.[2]
Based upon events occurring on December 26, 2009, the State charged Norwood with invasion of privacy as a class A misdemeanor. At a bench trial, the State introduced the ex parte order issued on August 15, 2008 and the protective order issued on October 9, 2008. The court found Norwood guilty as charged and sentenced Norwood to 365 in the Marion County Jail with 361 days suspended with credit for time served.
The sole issue is whether the evidence is sufficient to sustain Norwood's conviction for invasion of privacy as a class A misdemeanor. When reviewing the sufficiency of the evidence to support a conviction, we must consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). We do not assess witness credibility or reweigh the evidence. Id. We consider conflicting evidence most favorably to the trial court's ruling. Id. We affirm the conviction unless "no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind.2000)). It is not necessary that the evidence overcome every reasonable hypothesis of innocence. Id. at 147. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. Id.
The offense of invasion of privacy is governed by Ind.Code § 35-46-1-15.1, which provides in relevant part:
*1211 A person who knowingly or intentionally violates:
(1) a protective order to prevent domestic or family violence issued under IC 34-26-5 . . .; [or]
(2) an ex parte protective order issued under IC 34-26-5 . . .;
* * * * * *
commits invasion of privacy, a Class A misdemeanor.
The charging information alleged that Norwood "did knowingly violate an order of protection, that is . . . [a] protective order issued to prevent domestic or family violence issued under IC 34-26-5 . . . which was issued to protect Shenika Gordon, and furthermore, did so by engaging in the following conduct: being in her presence and/or following her in a vehicle and/or yelling at her." Appellant's Appendix at 14. Thus, to convict Norwood of invasion of privacy as a class A misdemeanor, the State was required to prove that Norwood knowingly violated a protective order to prevent domestic or family violence issued under Ind.Code § 34-26-5.
Norwood argues that "it was reasonable for [him] to believe and understand that the terms of the most recent Order for Protection would be the terms that were in effect, not the prior, initial Ex Parte Order." Appellant's Brief at 8. Norwood also argues that the terms of the October 9, 2008 order had superseded the terms of the August 15, 2008 order. The State argues that Norwood failed to "provide any evidence that the protective order issued in October would supersede the ex parte protective order." Appellee's Brief at 5. The State argues that it was reasonable for the State to issue two separate protective orders in the same case that contained conflicting expiration dates and that "[t]he ex parte protective order was designed to protect [Gordon] and the second protective order was designed to detail [Norwood's] parental visitation rights." Id. The State argues that "[t]here is no language in the protective order that suggests it modified or superseded the ex parte protective order issued two months earlier" and that the "ex parte protective order was still in effect in December of 2009." Id.
To the extent that the State argues that the second protective order was designed to detail Norwood's parental visitation rights, we observe that both the August 15, 2008 order and the October 9, 2008 order enjoined Norwood from threatening to commit or committing acts of domestic or family violence, stalking, or a sex offense against Gordon and prohibited Norwood from harassing, annoying, telephoning, contacting, or directly or indirectly communicating with Gordon. We also observe that the allegations in the charging information quoted above related to and focused on the October 9, 2008 protective order in that it refers to a protective order and not an ex parte protective order. Moreover, the October 9, 2009 order superseded the earlier ex parte order issued on August 15, 2008. See Ind.Code § 34-26-5-2(c) ("A court may issue only one (1) order for each respondent."). Because the October 9, 2008 protective order expired on October 9, 2009, before the date of the alleged violation on December 26, 2009, we conclude that the evidence is insufficient to sustain Norwood's conviction for invasion of privacy as a class A misdemeanor.
For the foregoing reasons, we reverse Norwood's conviction for invasion of privacy as a class A misdemeanor.
Reversed.
RILEY, J., and ROBB, J., concur.
NOTES
[1] Ind.Code § 35-46-1-15.1 (Supp.2008).
[2] In its statement of facts, the State says that this protective order shows the expiration date as October 9, 2010; however, the order shows the expiration date as October 9, 2009. See State's Exhibit 1 at 9.
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This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellant
v.
Joshua KATSO, Airman Basic
United States Air Force, Appellee
No. 17-0326
Crim. App. No. 38005 (rem)
Argued December 5, 2017—Decided March 12, 2018
Military Judges: William C. Muldoon Jr.,
and Matthew D. Van Dalen
For Appellant: Captain Tyler B. Musselman (argued);
Mary Ellen Payne, Esq. (on brief).
For Appellee: Captain Patrick A. Clary (argued); Major
Isaac C. Kennen (on brief); Colonel Jane E. Boomer.
Judge RYAN delivered the opinion of the Court, in
which Chief Judge STUCKY, Judges OHLSON and
SPARKS, and Senior Judge EFFRON, joined.
_______________
Judge RYAN delivered the opinion of the Court.
The United States Air Force Court of Criminal Appeals
(AFCCA) wrongly assumed that the procedures and penal-
ties contained in Rule for Courts-Martial (R.C.M.) 305 (enti-
tled “Pretrial confinement”) applied in full to Appellee—an
adjudged and sentenced prisoner whose sentence has been
ordered executed. Accordingly, it determined that Appellee
was entitled to a sua sponte continued confinement hearing
within seven days of the Government’s certification to this
Court pursuant to Article 67(a)(2), Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 867 (2012), and day-for-day
credit for each day served in confinement between certifica-
tion and the date of the continued confinement hearing.
United States v. Katso (Katso III), No. ACM 38005 (rem), slip
op. at 9−10 (A.F. Ct. Crim. App. Feb. 2, 2017) (unpublished).
United States v. Katso, No. 17-0326/AF
Opinion of the Court
Appellee was not in pretrial confinement, and neither of
the cases the AFCCA relied upon—Moore v. Akins, 30 M.J.
249, 253 (C.M.A. 1990), and United States v. Miller, 47 M.J.
352, 361−62 (C.A.A.F. 1997)—purported to adopt all R.C.M.
305 procedures and penalties in post-trial cases pending ap-
pellate review to this Court. Moreover, R.C.M. 305 does not
govern this case: Article 57a(c), UCMJ, 10 U.S.C. § 857a(c)
(2012), is the statute governing deferral of continued con-
finement pending appellate review under Article 67(a)(2),
UCMJ. While that statute provides that convicted prisoners
may seek deferral of confinement pending review of a deci-
sion favorable to the accused certified to this Court, and that
the relevant secretary may grant such deferral and order the
prisoner released, it does not provide guidance let alone re-
quirements as to the timing of such review, or the penalties,
if any, for failing to initiate such review.
In any event, Appellee, an adjudged and sentenced pris-
oner, received a continued confinement hearing during the
pendency of the Government’s certificate of review to this
Court, once he asked for one. That hearing was resolved
against him, he remained confined, and all periods of con-
finement served were credited against his adjudged sentence
once the decision of the AFCCA was reversed by this Court
in 2015. There was no prejudice to the substantial rights of
the accused, Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2012),
and no basis for awarding confinement credit even if he was
entitled to a hearing sua sponte.
We affirm Appellee’s findings and sentence, but reverse
the erroneous decision of the AFCCA in awarding confine-
ment credit.
I. Facts and Procedural History
Appellee was convicted, contrary to his pleas, by a gen-
eral court-martial composed of officer and enlisted members
of one specification of aggravated sexual assault, one specifi-
cation of burglary, and one specification of unlawful entry,
in violation of Articles 120, 129, and 134, UCMJ, 10 U.S.C.
§§ 920, 929, 934 (2012). The court-martial sentenced Appel-
lee to confinement for ten years, a dishonorable discharge,
and forfeiture of all pay and allowances. The convening au-
thority approved the sentence as adjudged.
2
United States v. Katso, No. 17-0326/AF
Opinion of the Court
On April 11, 2014, the AFCCA set aside the findings and
sentence. United States v. Katso (Katso I), 73 M.J. 630, 642
(A.F. Ct. Crim. App. 2014). On June 9, 2014, the Judge Ad-
vocate General (TJAG) of the Air Force certified an issue to
this Court, pursuant to Article 67(a)(2), UCMJ.
Argument on the certified issue was heard at this Court
on October 7, 2014. While the first certification was pending,
Appellee remained in confinement. Appellee requested re-
view of his continued confinement for the first time on June
3, 2015, approximately one year after TJAG certification. On
June 4, 2015, Appellee filed a motion with our Court for ap-
propriate relief in the event this Court reversed the
AFCCA’s decision on the certified issue. On June 5, 2015,
Appellee also filed a petition for extraordinary relief in the
nature of a writ of habeas corpus with AFCCA, requesting to
be released from confinement. On June 6, 2015, a continued
confinement hearing was ordered to determine whether Ap-
pellee should remain confined pending the decision of this
Court.
On June 15, 2015, Appellee’s continued confinement
hearing was held. The Continued Confinement Reviewing
Officer determined that Appellee should remain in confine-
ment pending the resolution of his appeal because it was
foreseeable that Appellee was both a flight risk and would
engage in other serious criminal misconduct, and less severe
forms of restraint were inadequate. Appellee remained in
confinement.
Subsequently, this Court issued its opinion in United
States v. Katso (Katso II), 74 M.J. 273 (C.A.A.F. 2015), and
reversed the decision of the AFCCA, effectively reinstating
Appellee’s convictions and sentence.1 Id. at 284. The record
was remanded to the AFCCA for further proceedings under
Article 66, UCMJ, 10 U.S.C. § 866 (2012). Id. Appellee’s pe-
tition for a writ of certiorari was denied. Katso v. United
States, 136 S. Ct. 1512 (2016).
1 In our decision, we denied Appellee’s motion for appropriate
relief without prejudice to seeking relief upon remand to the lower
court. Katso II, 74 M.J. at 284 n.8.
3
United States v. Katso, No. 17-0326/AF
Opinion of the Court
On remand before the AFCCA, Appellee asserted, inter
alia, that he was entitled to day-for-day sentence relief for
procedural errors under R.C.M. 305 relating to his confine-
ment pending resolution of the Government appeal. Katso
III, No. ACM 38005 (rem), slip op. at 2, 4. The AFCCA, rely-
ing on Moore, Miller, and R.C.M. 305(i)(2), held that a con-
tinued confinement hearing was required within seven days
of TJAG certification. Id. at 9. Moreover, relying on lan-
guage in R.C.M. 305, particularly R.C.M. 305(k), the AFCCA
awarded Appellee with 365 days of credit to his confinement,
representing day-for-day credit for the period between certi-
fication and the date of the continued confinement hearing
without testing for prejudice.2 Id. at 10.
Pursuant to Article 67(a)(2), UCMJ, TJAG then certified
following issues:
I. WHETHER THE AIR FORCE COURT OF
CRIMINAL APPEALS ERRED WHEN IT HELD
THAT UNITED STATES v. MILLER, 47 M.J. 352
(C.A.A.F. 1997) REQUIRED THE GOVERNMENT
TO HOLD A CONTINUED CONFINEMENT
HEARING WITHIN 7 DAYS OF THE JUDGE
ADVOCATE GENERAL'S DECISION ON
CERTIFICATION.
II. WHETHER THE AIR FORCE COURT OF
CRIMINAL APPEALS ERRED WHEN IT FOUND
THAT GOVERNMENT'S FAILURE TO HOLD A
CONTINUED CONFINEMENT HEARING
WITHIN 7 DAYS OF THE JUDGE ADVOCATE
GENERAL'S DECISION ON CERTIFICATION
AUTOMATICALLY RESULTED IN DAY-FOR-
DAY SENTENCING CREDIT.
III. WHETHER APPELLEE WAS
PREJUDICED WHEN THE GOVERNMENT
FAILED TO HOLD A CONTINUED
CONFINEMENT HEARING WITHIN 7 DAYS OF
CERTIFICATION.
2 The AFCCA affirmed Appellee’s findings and sentence as to
the aggravated sexual assault and burglary charges and specifica-
tions, and set aside and dismissed with prejudice the unlawful en-
try charge and specification. Katso III, No. ACM 38005 (rem),
slip op. at 10.
4
United States v. Katso, No. 17-0326/AF
Opinion of the Court
II. Discussion
Whether the government has a sua sponte duty to hold a
continued confinement hearing within seven days of a certi-
fication to this Court under Article 67(a)(2), UCMJ, is a
question of law, which we review de novo. United States v.
Rendon, 58 M.J. 221, 224 (C.A.A.F. 2003) (citing United
States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002)).
The overarching problem with the AFCCA’s approach to
this case is that, without any case law, or any rule-based or
statutory authority, it imposed the entirety of R.C.M. 305
procedures and penalties, crafted for pretrial confinement,
on the Government in a completely different context. See
United States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997)
(procedural safeguards are due to pretrial detainees, who
are accused, but not yet been proven guilty of an offense, to
ensure due process); United States v. Heard, 3 M.J. 14, 20
(C.M.A. 1977) (“[U]nless confinement prior to trial is com-
pelled by a legitimate and pressing social need sufficient to
overwhelm the individual’s right to freedom—given the fact
that probable cause exists to believe he has committed a
crime—restrictions unnecessary to meet that need are in the
nature of intolerable, unlawful punishment.”); Bell v. Wolf-
ish, 441 U.S. 520, 535–539 (1979) (recognizing that “[f]or
under the Due Process Clause, a detainee may not be pun-
ished prior to an adjudication of guilty in accordance with
due process of the law”); see also Article 13, UCMJ, 10
U.S.C. § 813 (2012) (proscribing pretrial punishment). We
agree with Chief Judge Drew, Katso III, No. ACM 38005
(rem), slip op. at 11−14 (Drew, C.J., dubitante) (opining that
Appellee remained an adjudged and sentenced prisoner until
appellate review was final and R.C.M. 305 did not apply).
Consequently, interposing the rule-based seven-day hearing
requirement from R.C.M. 305(i)(2) in this case, which result-
ed in rule-based day-for-day credit under R.C.M. 305(j)(2)
and R.C.M. 305(k) for failure to comply with procedures that
did not apply to Appellee’s situation, was error.
Moreover, the AFCCA’s reliance on Moore and Miller to
impose the requirements of R.C.M. 305 in toto was equally
unfounded. Neither case purported to impose the entirety of
R.C.M. 305 procedural requirements or penalties in a search
for “a practical means ... to release accused servicemembers
5
United States v. Katso, No. 17-0326/AF
Opinion of the Court
from confinement pending appeal in meritorious cases.”
Moore, 30 M.J. at 253.
And, in any event, Moore was decided prior to the prom-
ulgation of Article 57a(c), UCMJ, which provided such a
practical means. Congress established Article 57a(c), UCMJ,
to govern the treatment of convicted prisoners where “the
sentence to confinement has been ordered executed, but in
which review of the case under ... (article 67(a)(2)) is pend-
ing.” Article 57a(c), UCMJ, permits “the Secretary con-
cerned” to “defer further service of the sentence to confine-
ment while that review is pending.” In other words,
convicted prisoners may seek deferral of confinement pend-
ing review of a decision favorable to the accused certified to
this Court by TJAG and the relevant secretary may grant
such deferral and order the prisoner released.
Miller was decided after Article 57a(c), UCMJ, was en-
acted, and opined that, upon TJAG’s certification to this
Court of a favorable decision to an accused from a Court of
Criminal Appeals (CCA), the accused must “be released in
accordance with that decision or a hearing on continued con-
finement be conducted under RCM 305.” Miller, 47 M.J. at
362. But even Miller did not purport to hold that all the pro-
cedures and penalties contained within R.C.M. 305 traveled
along with a R.C.M. 305-styled continued confinement hear-
ing. Moreover, Miller failed to address Article 57a, UCMJ,
let alone its statutory primacy on the question of deferral of
sentence, including confinement, during the pendency of an
Article 67(a)(2), UCMJ, appeal to this Court.
We have no doubt that where a prisoner whose “sentence
to confinement has been ordered executed, but in which
review of the case under ... (article 67(a)(2)) is pending,”
seeks a continued confinement hearing, the language of
Article 57a(c), UCMJ, is broad enough to permit such a
hearing so that the relevant secretary can determine
whether to release the prisoner in accordance with Article
57a(c), UCMJ. But the statute is silent on how or when the
determination to release is to be made, and neither the
President nor a majority of the service secretaries have
promulgated procedural rules or remedies implementing the
6
United States v. Katso, No. 17-0326/AF
Opinion of the Court
statute to address these questions.3 While such guidance
would be both helpful and appropriate, see, e.g., United
States v. Kelson, 3 M.J. 139, 140−42 (C.M.A. 1977); Article
36, UCMJ, 10 U.S.C. § 836 (2012); Article 140, UCMJ, 10
U.S.C. § 940 (2012), the AFCCA itself acted ultra vires in
imposing the procedural requirements and penalties of
R.C.M. 305 on the Government. Barker v. Wingo, 407 U.S.
514, 523 (1972) (concluding that a court should “confine [its]
efforts” in the adjudicative process rather than engage in
legislative or rulemaking activity).
Finally, even assuming arguendo that the Government
should have held a continued confinement hearing sua
sponte, within seven days or otherwise, Appellee suffered no
prejudice from its failure to do so. Article 59(a), UCMJ; see
United States v. Ward, 74 M.J. 225, 227 (C.A.A.F. 2015)
(“We review prejudice determinations under a de novo
standard of review.” (citation omitted)). A continued con-
finement hearing was held when Appellee requested it. And
that hearing concluded that Appellee was not entitled to be
released. Thus, in the end, since Appellee’s sentence was ef-
fectively restored by this Court, Katso II, 74 M.J. at 284, the
time Appellee served between certification and the confine-
ment hearing was in accordance with his adjudged and ap-
proved sentence. We conclude that the AFCCA erroneously
awarded Appellant confinement credit when none was due.4
3 The Secretary of the Navy has promulgated the following
rule: “[d]eferment requests pursuant to Article 57a(c) shall be ad-
dressed to the Secretary of the Navy via the Judge Advocate Gen-
eral (OJAG Code 20).” Dep’t of the Navy, Judge Advocate General
Instr. 5800.7F, Manual of the Judge Advocate General para.
0155a.b (June 26, 2012) (JAGMAN).
4 Appellee’s motion to dismiss the certified issues, Katso,
17-0326/AF, App. Mot. to Dismiss (Jan. 17, 2018), is denied; Ap-
pellee’s motion to supplement the record, Katso, 17-0326/AF, App.
Mot. to Supp. (Jan. 29, 2018), is granted. By answering the certi-
fied questions, we neither rule on a moot question nor render an
advisory opinion in this case. United States v. Chisholm, 59 M.J.
151, 152 (C.A.A.F. 2003); cf. United States v. Clay, 10 M.J. 269,
269 (C.M.A. 1981) (per curiam); United States v. McIvor, 21
C.M.A. 156, 156, 44 C.M.R. 210, 210 (1972). As evident from the
supplement to the record, which the Government inexplicably op-
poses our review of, Katso, 17-0326/AF, Answer to App. Mot. to
7
United States v. Katso, No. 17-0326/AF
Opinion of the Court
Therefore, we answer Issues I and II in the affirmative
and Issue III in the negative.
III. Judgment
The decision of the United States Air Force Court of
Criminal Appeals is affirmed with respect to the findings
and sentence, but it is reversed as to the erroneous action
taken granting 365 days of administrative credit toward Ap-
pellee’s sentence to confinement.
Supp. (Feb. 2, 2018), Appellee is on Mandatory Supervised Re-
lease (MSR), which continues until “expiration of [his] sentence to
confinement.” Dep’t of the Air Force, Instr. 31-105, Security, Air
Force Corrections System para. 12.24 (June 15, 2015, as amended
by Air Force Guidance Memorandum 2017-01, June 28, 2017); see
also Dep’t of Defense, Instr. 1325.07, Administration of Military
Correctional Facilities and Clemency and Parole Authority, Enclo-
sure 3, at 94 (Mar. 11, 2013, incorporating Change 2, Sept. 22,
2017) (MSR can be revoked, requiring a servicemember to serve
the remainder of his confinement sentence); United States v. Pena,
64 M.J. 259, 262 (C.A.A.F. 2007); Moultrie v. Sec. of the Army, 723
F. Supp. 2d 1230, 1235−37 (C.D. Cal. 2010) (habeas petition not
moot because petitioner was still in military “custody” while on
MSR). Thus, given the nature of the MSR program, this Court’s
resolution of the certified issues would still result in a “material
alteration of the situation for the accused,” in the form of Appel-
lee’s final sentence to confinement affirmed on appeal. Clay, 10
M.J. at 269 (internal quotation marks omitted) (quoting McIvor,
21 C.M.A. at 158, 44 C.M.R. at 212).
8
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15-3655-bk
In re: AMR Corporation
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 31st day of October, two thousand sixteen.
PRESENT: PIERRE N. LEVAL,
ROBERT D. SACK,
REENA RAGGI,
Circuit Judges.
----------------------------------------------------------------------
IN THE MATTER OF: AMR CORPORATION,
Debtor.
----------------------------------------------------------------------
LAWRENCE M. MEADOWS,
Appellant,
v. No. 15-3655-bk
AMR CORPORATION,
Debtor-Appellee.
----------------------------------------------------------------------
FOR APPELLANT: Lawrence M. Meadows, pro se, Park City,
Utah.
FOR APPELLEE: Stephen A. Youngman, Weil, Gotshal &
Manges, LLP, New York, New York.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Paul A. Crotty, Judge; Sean H. Lane, Bankruptcy Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Creditor Lawrence M. Meadows, proceeding pro se, appeals from the affirmance
of an order of the Bankruptcy Court for the Southern District of New York that
disallowed and expunged three of Meadows’s amended proofs of claim as untimely. On
plenary review of a decision of a district court functioning as an intermediate appellate
court in a bankruptcy case, we assess the bankruptcy court’s legal conclusions de novo
and its factual findings for clear error. See In re Lehman Bros. Holdings Inc., 761 F.3d
303, 308 (2d Cir. 2014). “Additionally, we may affirm on any ground that finds support
in the record.” Id. In applying these principles here, we assume the parties’ familiarity
with the underlying facts, the procedural history of the case, and the issues on appeal,
which we reference only as necessary to explain our decision to affirm.
1. Denial of Amendment
A timely original claim can be amended to add otherwise untimely claims if the
latter relate back to the former and if amendment would be equitable. See In re Enron
Corp., 419 F.3d 115, 133 (2d Cir. 2005). Alternatively, such amendment may be
allowed if the delay in pursuing the untimely claims results from excusable neglect. See
id. at 121; Fed. R. Bankr. P. 9006(b)(1). We review a bankruptcy court’s denial of
2
late-filed amended proofs of claim for abuse of discretion, see In re Enron Corp., 419
F.3d at 124, which we will identify only where that decision rests on legal or factual error
or cannot be located within the range of permissible decisions, see In re Smith, 507 F.3d
64, 73 (2d Cir. 2007).
Meadows’s argument that his untimely claims for discrimination and
whistleblowing relate back to his timely claim for long-term disability benefits fails for
the reasons stated by the district court, which we incorporate here. See Meadows v.
AMR Corp., 539 B.R. 246, 251–52 (S.D.N.Y. 2015). His effort to demonstrate relation
back by reference to the timely filed omnibus claim of the Allied Pilots Association
(“APA”)—which includes a pending grievance pertaining to Meadows—raises more
challenging issues. We need not pursue them here, however, because even if we were to
resolve them all in Meadows’s favor so as to establish relation back, we would still not
identify abuse of discretion in the district court’s denial of amendment. That is because
the same bankruptcy court findings that belie excusable neglect also demonstrate that
amendment would not be equitable in this case. Specifically, the bankruptcy court
found that (1) Meadows’s delay in pursuing his untimely statutory claims was unjustified
and (2) allowing amendment to add such claims would prejudice the debtor by
threatening to disrupt its omnibus settlement with the APA and “opening the floodgates
to potential claimants.” S.A. 2222–23. Considerations of unjustified delay and
prejudice are relevant not only to assessing excusable neglect, see In re Enron Corp, 419
3
F.3d at 122, but also to equitable analysis, where prejudice is the “critical consideration,”
see id. at 133 (internal quotation marks omitted). Thus, the bankruptcy court’s findings
effectively preclude either issue from being resolved in Meadows’s favor.
In urging otherwise, Meadows argues, as he did in the bankruptcy court, that his
delayed filings are attributable to prior counsel. But as the bankruptcy court correctly
observed, mistakes of counsel do not ordinarily excuse failures of timely filing. See
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 396–97 (1993);
accord In re Enron Corp., 419 F.3d at 122–23. We identify no error in the court’s
application of that principle to this case.
In sum, Meadows fails to show that the bankruptcy court abused its discretion in
dismissing and expunging his untimely claim amendments.
2. Procedural Challenges
Meadows maintains that certain actions by the bankruptcy court denied him due
process. Specifically, he complains of the bankruptcy court’s purported refusal to allow
him to refute unanticipated testimony from an APA representative as well as the court’s
written modification to its pronounced oral order permitting him to pursue his grievance
in other venues. These complaints are without merit.
In response to the testimony of the APA witness, the bankruptcy court did not
permit Meadows to testify to his interactions with APA attorneys, but it did allow him to
submit an affidavit to establish any prior contrary “official action” or “official position”
taken by the union. S.A. 2031–32. This decision fell well within the bankruptcy
4
court’s discretion to order the presentation of evidence so that it would not “confuse the
issue” or “wast[e] time.” Fed. R. Evid. 403; see S.A. 2031 (expressing concern as to
probative value and admissibility of evidence and tendency to turn proceedings into
“circus”); see also In re Busy Beaver Bldg. Ctrs., Inc., 19 F.3d 833, 846 n.16 (3d Cir.
1994) (recognizing that sound discretion of bankruptcy judge in ordering hearing “would
not necessarily require the presentation of oral testimony”). Meadows in fact submitted
an affidavit, attaching (1) an email to him from an APA attorney purporting to show
support for his whistleblower claims, and (2) a copy of the legal brief on his
whistleblower claim that Meadows claimed to have forwarded to the APA for its
submission. He fails to demonstrate how the testimonial presentation of such evidence
would have been any more likely to persuade the bankruptcy court that the union had
previously taken contrary actions or positions.
Nor can Meadows show prejudice from language in the bankruptcy court’s written
order allowing Meadows to pursue his grievance “to the extent permitted by applicable
law.” S.A. 2117. Indeed, Meadows points to no authority that would have allowed
him to pursue of the grievance on any other terms.
5
3. Conclusion
We have considered Meadows’s remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
6
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FILED
NOT FOR PUBLICATION MAR 03 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERLINA CHRISTIANI WINATA; No. 13-70260
HENDRIK SUSANTO LIE,
Agency Nos. A087-702-093
Petitioners, A087-702-094
v.
LORETTA E. LYNCH, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 24, 2016**
Before: LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.
Erlina Christiani Winata and Hendrik Susanto Lie, natives and citizens of
Indonesia, petition for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing their appeal from an immigration judge’s decision denying their
application for asylum, withholding of removal, and protection under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Convention Against Torture (“CAT”). We have jurisdiction under
8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings,
Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006), and we deny the
petition for review.
Substantial evidence supports the BIA’s conclusion that the government
rebutted petitioners’ presumption of future persecution by establishing a
fundamental change in circumstances. See 8 C.F.R. § 1208.13(b)(1)(i)(A); see also
Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 998-99 (9th Cir. 2003) (record did
not compel the conclusion that the government failed to rebut the presumption of
future persecution); cf. Boer-Sedano v. Gonzales, 418 F.3d 1082, 1091-92 (9th Cir.
2005). We reject petitioners’ contentions that the agency erred in its analysis or
did not consider Winata’s explanations for her numerous lengthy returns to
Indonesia. Thus, petitioners’ asylum claim fails.
Because petitioners failed to establish eligibility for asylum, they necessarily
failed to meet the more stringent standard for withholding of removal. See
Zehatye, 453 F.3d at 1190.
Finally, substantial evidence also supports the agency’s denial of petitioners’
CAT claim because they failed to show it is more likely than not that they would
2 13-70260
be tortured by or with the consent or acquiescence of the Indonesian government.
See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
PETITION FOR REVIEW DENIED.
3 13-70260
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450 U.S. 1014
101 S.Ct. 1724
68 L.Ed.2d 214
W. J. ESTELLE, Jr., Director, Texas Department of Correctionsv.Jerry Lane JUREK
No. 80-763
Supreme Court of the United States
March 23, 1981
Rehearing Denied May 18, 1981.
See 451 U.S. 1011, 101 S.Ct. 2349.
On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.
The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is denied.
Justice REHNQUIST, dissenting.
1
In light of the facts of this case and the legal issues it presents, it is inexplicable to me why this Court fails to grant the petition for certiorari and give the case plenary consideration. Against the backdrop of a death sentence, this case involves the voluntariness of a series of confessions, the proper standard of review of state and federal lower court determinations of "voluntariness" in a habeas corpus proceeding, and the applicability of the harmless-error doctrine. To be sure, the issues presented are difficult. But that is surely no reason for this Court to avoid its responsibility of resolving a case as important to the integrity of our judicial system as this.
2
Jurek is no stranger to this Court. In early 1974, Jurek was convicted by a jury of the murder of a 10-year-old girl and sentenced to death. The Texas Court of Criminal Appeals affirmed, rejecting Jurek's contention that his oral and two written confessions were involuntary and should not have been admitted into evidence. Jurek v. State, 522 S.W.2d 934 (1975). We granted certiorari to decide only whether Texas' death penalty statute was constitutional and affirmed, finding that the statute satisfied the principles announced in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Jurek then unsuccessfully sought a writ of habeas corpus in the state courts. We denied his petition for a writ of certiorari, after granting a temporary stay of execution pending timely filing for that writ. Jurek v. Estelle, 430 U.S. 951, 97 S.Ct. 1592, 51 L.Ed.2d 800 (1977).
3
But, as in so many criminal cases these days, Jurek's conviction was still not final. He next commenced habeas corpus proceedings in the federal courts, again challenging the voluntariness of his confessions. The District Court held an exhaustive evidentiary hearing and—like the jury, the state trial court and the state appellate court before it—found the confessions to be voluntary. A panel of the Court of Appeals for the Fifth Circuit nevertheless reversed, concluding that the confessions were involuntary. The 25 judges of the Court of Appeals sitting en banc also reversed, albeit on somewhat different grounds. 623 F.2d 929 (1980). Judge Garza's opinion, embraced in its entirety by only three other judges, represents the result reached by a majority of the court. The majority found that although the oral confession and the first written confession were voluntary, the second written confession was involuntary. Judge Godbold, joined by one other judge, would have found both written confessions involuntary. Judge Frank M. Johnson, joined by six judges, would have held all of the confessions involuntary. Judges Brown and Reavely filed separate opinions, joined by 8 and 8 judges respectively, which would have held all of the confessions voluntary.
4
Briefly stated, these are the facts surrounding the confessions. Jurek was arrested late at night in Cuero, Tex., in connection with the disappearance of Wendy Adams. He was taken to police headquarters, given Miranda warnings and questioned for 45 minutes. He was not questioned again until 9 o'clock the next morning. He asked to take a polygraph test and was driven to Austin, Tex., for that purpose.* When confronted with the results of the test, he orally admitted killing Wendy and told the police where the body might be found. The police then returned Jurek to Cuero and immediately took him before a Magistrate where Jurek declined a request for counsel. After searching unsuccessfully for the body, the police again questioned Jurek and late that night took a written confession from Jurek, witnessed by two members of the community, in which he stated he killed Wendy because she made disparaging remarks about his family. For security reasons, the police then transferred Jurek for the night to a jail in Victoria, Tex., about 50 miles away. The next day the police found Wendy's body and that afternoon again questioned Jurek. In a second written confession, again witnessed by two other members of the community, Jurek stated that he killed Wendy because she refused to have sexual relations with him.
5
There are several reasons why this case is worthy of review. In the first place, Judge Garza's attempt to distinguish between the first and second written confession is, to me, wholly unpersuasive. Indeed, other than Judge Garza and the three judges who joined him, no one had ever suggested that the second confession was less voluntary than the first. In cases involving multiple confessions, we have held that some of the confessions may be found involuntary and others not only if such a distinction is justified by a sufficiently isolating "break in the stream of events." Darwin v. Connecticut, 391 U.S. 346, 349, 88 S.Ct. 1488, 1490, 20 L.Ed.2d 630 (1968). There is no such break here.
6
Judge Garza attempted to distinguish the second confession on the ground that the police were motivated by a desire to secure a death sentence for Jurek. But, as even Judge Johnson recognized in his separate opinion, the record reveals that the prosecutors believed they already had enough evidence to obtain a death verdict. 623 F.2d, at 943. The record shows that the prosecutors sought the second confession simply because they wanted a signed statement of the "true" events. Each time the police learned of something new relating to Wendy's disappearance, they went to Jurek to confirm it. Surely nothing in the Constitution prevents the police from asking questions to discern the facts and solve a crime. Judge Garza also relied heavily on the alleged difference in "style" between the two confessions, that Jurek had less input in the second confession because it contained some "legalese." But even if there is a significant difference in style between the confessions—which I doubt—that may well be explained simply by the fact that the confessions were "transcribed" by two different persons. And all of the witnesses to the second confession have testified that they believed the confession to be voluntary. The opinion also relies on the fact that there was a 16-hour time difference between the two confessions, but such reliance is misplaced in light of our decisions holding that even a 6-month time difference is not enough to constitute a sufficiently isolating break between two confessions. United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947). Finally, Judge Garza criticized the police for not informing Jurek that if he admitted to attempting to have sexual relations with Wendy, he "was in effect" signing his "death warrant." 623 F.2d, at 935. But even if it were true that the police were seeking the death sentence, our cases have never required the police to give such unsolicited legal advice. In short, nothing in the record reveals any police misconduct or any "coercion" visited upon Jurek. Quite the contrary, their performance strikes me as commendable. The evidence simply does not establish that Jurek's will was overborne or that his confession was not the product of a rational intellect and a free will.
7
If the issue in this case was only whether Jurek's confessions were voluntary, I might acquiesce in the denial of certiorari because of the impracticality of this Court's reviewing such fact-specific questions. But this case involves far more than simply whether a particular confession is voluntary. The decision below reveals tremendous confusion as to the proper standard of review in a federal habeas proceeding after a jury, a state trial court, a state appellate court, and a federal district court have determined a confession to be voluntary. Relying on Beckwith v. United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976), Judge Garza held that a court of appeals in a federal habeas case must " 'examine the entire record and make an independent determination of the ultimate issue of voluntariness.' " 623 F.2d, at 931. Judge Brown, on the other hand, found that Jurek's confessions were admissible under even the "independent review" standard, and thus found it unnecessary to choose between that standard and the "clearly erroneous" test. Id., at 962. This issue is important and should be resolved by the Court. As Judge Brown recognized, we have never explicitly applied the "independent review" test in the federal habeas corpus context, and even in those cases where we have suggested that a broader standard of review might be appropriate, we have made clear that "great weight, of course, is to be accorded to the inferences which are drawn by the state courts. In a dubious case, it is appropriate, with due regard to federal-state relations, that the state court's determination should control." Culombe v. Connecticut, 367 U.S. 568, 605, 81 S.Ct. 1860, 1880, 6 L.Ed.2d 1037 (1961). In this case, the Court of Appeals gave little deference to findings of historical facts, see n. *, supra, much less to the lower court's inferences as to the ultimate issue of voluntariness.
8
In my view, the Court of Appeals also erred in ignoring the applicability of the harmless-error doctrine to the facts of this case. In Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972), we clearly held that the harmless-error doctrine should be applied in cases involving multiple confessions. We explained:
9
"The writ of habeas corpus has limited scope; the federal courts do not sit to re-try state cases de novo but, rather, to review for violation of federal constitutional standards. In that process we do not close our eyes to the reality of overwhelming evidence of guilt fairly established in the state court 14 years ago by use of evidence not challenged here; the use of the additional evidence challenged in this proceeding and arguably open to challenge was, beyond reasonable doubt, harmless." Id., at 377-378.
10
What is particularly troubling about this case is that I have no doubt that the decision below was colored by the fact that this is a capital punishment case. The severity of a defendant's punishment, however, simply has no bearing on whether a particular confession is voluntary or on the extent to which federal habeas courts should defer to state-court findings. Following the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), holding invalid a state capital punishment statute, the State of Texas, like 34 other States, enacted new death penalty statutes. Those States determined that capital punishment, though an extreme form of punishment, is a suitable sanction for the most extreme of crimes. One of the principal goals of our Federal Government, set forth in the preamble to the Constitution, is "[to] insure domestic Tranquility." Whether as means of deterring future crimes or as means of retribution, these States believed that a carefully designed and limited system of capital punishment would be one way of ensuring domestic tranquility.
11
In a series of decisions handed down in 1976 this Court upheld the constitutionality of those statutes, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913, including the statute at issue here. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). The opinion announcing the judgment in Gregg v. Georgia reasoned that "[c]onsiderations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe." 428 U.S., at 186-187, 96 S.Ct., at 2931-2932 (opinion of STEWART, POWELL and STEVENS, JJ.). The opinion also squarely rejected the notion that "standards of decency" rendered the death penalty unconstitutional, noting that "it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction." Id., at 179, 96 S.Ct., at 2928.
12
The murder in this case was committed in 1973. For eight years, the State of Texas has repeatedly presented its case against Jurek to state and federal courts. Yet, despite the fact that every court has concluded that at least one of Jurek's written confessions was voluntary, the people of the State of Texas now find themselves no closer to enforcing their capital punishment statute than they were when they began eight years ago. By overturning Jurek's conviction on the basis of a procedural nicety, the decision below not only renders Texas' death penalty statute an ineffective deterrent, it also frustrates society's compelling interest in having its constitutionally valid laws swiftly and surely carried out. A potential murderer will know that even if he is convicted and sentenced to death, he will very likely not be put to death. If he litigates the case long enough, the odds favor his finding some court which will accept a legal theory previously rejected by other courts.
As Judge Brown put it:
13
"This case presents in dramatic terms the tensions between promoting thorough and efficient enforcement of the laws and ensuring that the rights of the accused are scrupulously guarded. We have on the one hand a murder which could hardly have been more reprehensible; the violent, senseless slaying of a young girl. On the other hand, we have a decision by a panel of this Court throwing out Jurek's two written confessions on the grounds of voluntariness, making it very unlikely that Jurek could again be convicted on retrial." 623 F.2d, at 956.
14
I agree with Judge Brown that the decision below makes it "very unlikely that Jurek could again be convicted on retrial." Even though Jurek has made at least one "voluntary" confession, he may well escape all punishment for his violent, senseless slaying of a young girl. I, for one, am unwilling to subscribe to a decision of this Court which sanctions such an outcome. I do not think that this Court can, like Pontius Pilate, wash its hands of the numerous issues presented in this case, issues which are bound to arise not merely in this case, but in countless others. I would therefore grant the petition for certiorari and set the case for argument.
*
To be sure, there is some dispute as to the facts. The panel found that Jurek was questioned throughout the first night and criticized the police for taking Jurek to Austin, Tex. 593 F.2d 672 (1979). The Texas Court of Criminal Appeals and the United States District Court, however, found that Jurek was left alone during the night and that Jurek was transferred to Austin at his own request. Thus, the panel clearly ignored the requirement of 28 U.S.C. § 2254(d) that state-court findings of fact are to be presumed correct. See Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). To the extent Judge Garza's opinion relied on the panel's findings of facts, it too erred.
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AFFIRMED; Opinion Filed July 21, 2017.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00069-CR
No. 05-16-00095-CR
STEVEN KENT HOLLOWAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 401-81683-2015 & 401-82104-2015
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Evans
Opinion by Justice Evans
After a jury trial, Steven Kent Holloway was convicted of assault against a public servant
and possession of methamphetamine less than one gram. The trial court assessed punishment in
both cases. Finding the two enhancement allegations in the assault case to be “true,” the trial
court sentenced appellant to thirty years’ imprisonment in that case. The trial court sentenced
appellant to two years in a state jail facility for the possession case. In two issues, appellant
challenges the assault conviction, asserting the evidence is insufficient to support the conviction
and complaining the trial court abused its discretion in denying his request for a jury instruction
on the lesser included offense of resisting arrest, search, or transportation. For the reasons that
follow, we affirm the trial court’s judgments.1
BACKGROUND
On April 15, 2015, uniformed Plano police officers responded to a 9-1-1 call from the
manager of an electronic cigarette store in Plano asserting there was a white male in the store
that was making the customers uncomfortable. The manager testified at trial that the person,
later identified as appellant, first came into the store to use the restroom. After occupying the
restroom for twenty to thirty minutes, appellant moved to the couch in the front of the store and
started to fall asleep. The manager asked appellant to leave and he proceeded to sit on the curb
in front of the store.
When Officer Chris Bush arrived at the scene to investigate the “suspicious person” call,
he saw appellant sitting in the parking lot outside the store and engaged him in conversation until
backup arrived. Bush, a drug recognition expert, suspected that appellant was under the
influence of a CNS stimulant, such as methamphetamine. After Officer Donald Hutson arrived
as backup, Bush testified he asked and received appellant’s consent to search his person. During
the search of appellant’s left back pocket, appellant pulled away and tried to get away from the
officer’s grasp. A struggle ensued between appellant and the two officers. During the struggle,
Hutson testified that appellant flipped him over appellant’s back and Hutson landed on the
pavement on his back. Hutson testified appellant then landed on top of him and he felt
appellant’s hand on his gun holster and felt appellant “grab and squeeze his groin,” causing
Hutson much pain. Bush testified that he saw appellant’s hands near Hutson’s groin and belt
area and heard Hutson yell he was going for his “nuts.” Ultimately, Hutson used pepper spray
1
Although appellant has filed notice of appeals from both convictions, he has not raised any issues or complaint
in his brief with respect to the possession conviction.
–2–
on appellant in an attempt to get him under control. According to Bush, it wasn’t until additional
backup arrived that both of appellant’s hands were handcuffed. Bush found a small bag of
methamphetamine in appellant’s back left pocket. Appellant was arrested for assaulting an
officer, resisting arrest or search, and possession of a controlled substance.
Another officer and four other lay witnesses testified for the prosecution about the events
surrounding appellant’s arrest. None of these witnesses, however, testified that they saw
appellant grab Hutson. The prosecution also introduced into evidence police car video of the
incident and one of the lay witnesses’ cellphone video of a portion of appellant’s struggle with
the officers.
Appellant was the sole witness to testify for the defense. He testified that he did nothing
wrong and that he did not consent to the search. According to appellant, when he pulled way,
the officers beat him with their fists and sprayed him with mace. He denied hitting, grabbing, or
squeezing an officer’s testicles or gun.
ANALYSIS
A. Sufficiency of the Evidence
In his first issue, appellant challenges the sufficiency of the evidence supporting his
conviction for assault against a public servant. We address sufficiency issues first because, in the
event they are meritorious, we would render a judgment of acquittal rather than reverse and remand.
See Benavidez v. State, 323 S.W.3d 179, 181 (Tex. Crim. App. 2010) (appellate courts render
judgment of acquittal only when trial court’s ruling amounts to de facto acquittal or appellate court
finds evidence was legally insufficient to support conviction); Owens v. State, 135 S.W.3d 302, 305
(Tex. App.—Houston [14th Dist.] 2004, no pet.) (legal-sufficiency challenge must be addressed first
because if evidence is insufficient, reviewing court must render judgment of acquittal).
We review the sufficiency of the evidence of a criminal offense viewing the evidence in the
light most favorable to the verdict and determine whether any rational trier of fact could have found
–3–
the essential elements of the offense beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007); see also Jackson v. Virginia, 443 U.S. 307 (1979); Acosta v. State, 429
S.W.3d 621, 624–25 (Tex. Crim. App. 2014). The factfinder has the duty to resolve conflicts in the
testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts.
Clayton, 235 S.W.3d at 778. As a result, we determine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence when viewed in the
light most favorable to the verdict. Id. When the record supports conflicting inferences, we presume
the factfinder resolved the conflicts in favor of the verdict and therefore defer to that determination.
Id. Direct and circumstantial evidence are treated equally: circumstantial evidence is as probative as
direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be
sufficient to establish guilt. Id.
Appellant was charged with the offense of assaulting a public servant. A person commits the
offense of assault if the person “intentionally, knowingly, or recklessly causes bodily injury to
another.” TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2016). The offense is ordinarily a
Class A misdemeanor, except that the offense is a third degree felony if it is committed against
“a person the actor knows is a public servant while the public servant is lawfully discharging an
official duty. . . .” Id. § 22.01(b)(1). The penal code broadly defines public servant as “a person
elected, selected, appointed, employed, or otherwise designated as . . . an officer, employee, or agent
of government.” See id. § 1.07(41). The indictment alleged that appellant caused bodily injury to
Officer Hutson by grabbing him with appellant’s hand while Hutson was discharging his official
duty.
Appellant asserts the evidence is insufficient because the State failed to prove beyond a
reasonable doubt that appellant caused bodily injury to Hutson by grabbing the officer. He asserts
none of the five civilian witnesses or other two police officer witnesses testified that they saw
appellant grab Hutson’s testicles. Hutson testified, however, that appellant grabbed and squeezed his
–4–
groin causing him much pain.2 Moreover, Bush corroborated Hutson’s testimony when he testified
that he saw appellant’s hands near Hutson’s groin and belt area and heard Hutson yell appellant was
going for “his nuts.” Viewing the evidence in the light most favorable to the verdict, we conclude a
rational fact finder could have found beyond a reasonable doubt that appellant committed the offense
of assault on a public servant. We resolve appellant’s first issue against him.
B. Lesser-Included Offense
In his second issue, appellant asserts the trial court abused its discretion by denying his
request for the lesser included charge of resisting arrest, search, or transportation. We apply a two-
pronged test to determine if the trial court should have given a jury charge on a lesser-included
offense. Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007). We first determine if
the proof necessary to establish the charged offense includes the lesser offense. Id. This is a
question of law and does not depend on evidence to be introduced at trial. Id. If the first step is
satisfied, we then review the evidence to determine that if appellant is guilty, he is guilty only of
the lesser offense. Id. at 536. The second step is a question of fact and is based on the evidence
presented at trial. Cavazos v. State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012). This step
requires us to determine whether “there is some evidence in the record which would permit a
jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-included
offense.” Rice v. State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011).
Appellant argues that the jury should have been given an instruction on the offense of
resisting arrest because none of the five civilian witnesses or two other police officers testified
they saw appellant grab Hutson’s testicles and all testified that appellant’s behavior constituted
resisting arrest. We do not agree with appellant’s argument or analysis of this issue. An offense
2
Appellant relegates Hutson’s testimony to a footnote in his brief and does not even address this evidence in his
sufficiency analysis. Instead, he focuses only on what the witnesses did not see.
–5–
is a lesser included offense if (1) it is established by proof of the same or less than all the facts
required to establish the commission of the offense charged, (2) it differs from the charged
offense only in that a less serious injury or risk of injury to same subject suffices to establish its
commission, (3) it differs from the offense charged only in that a less culpable mental state
suffices to establish its commission, or consists of an attempt to commit the charged offense. See
TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006). The indictment here charged appellant
with assault on a public servant alleging he intentionally, knowingly, and recklessly caused
bodily injury to Hutson “by grabbing [Hutson] with defendant’s hand” knowing Hutson was a
public servant lawfully discharging an official duty. A person commits assault on a public
servant if the person (1) intentionally, knowingly, or recklessly (2) causes bodily injury, (3) to a
person he knows is a public servant (4) while the public servant is discharging an official duty.
See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(1). On the other hand, a person commits the
offense of resisting arrest, search, or transportation, if he (1) intentionally (2) prevents or
obstructs a person he knows is a peace officer (3) from effecting his arrest, search, or
transportation (4) by using force against the peace officer. Id. § 38.03(a) (West 2016).
The offense of resisting arrest has several elements that are not the same or less than
those of an assault on a public servant offense. Specifically, assault on a public servant contains
a reckless mental state, requires bodily injury to the officer, and the public servant to be lawfully
discharging an official duty while resisting arrest requires intentional conduct, need not involve
bodily injury to the officer, and requires proof the actor used force to prevent or obstruct the
actor’s arrest, search or transportation. See Steele v. State, 490 S.W.3d 117, 128 (Tex. App.—
Houston [1st Dist.] 2016, no pet.), Wiethorn v. State, No. 03-09-00036-CR, 2012 WL 753163 at
*3 (Tex. App.—Austin Mar. 7, 2012, pet. ref’d) (mem. op., not designated for publication).
Because the offense of resisting arrest was not included within the proof necessary to establish
–6–
the charged offense of assault on a public servant as alleged in the indictment, appellant’s lesser
included offense request fails the first step of the required analysis. See Steele, 490 S.W.3d at
128; Weithorn, 2012 WL 753163 at*3. Accordingly, the trial court did not err in refusing
appellant’s request. We resolve appellant’s second issue against him.
CONCLUSION
Having resolved both of appellant’s issues against him, we affirm the trial court’s
judgments.
/David W. Evans/
DAVID EVANS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
160069F.U05
–7–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
STEVEN KENT HOLLOWAY, Appellant On Appeal from the 401st Judicial District
Court, Collin County, Texas
No. 05-16-00069-CR V. Trial Court Cause No. 401-81683-2015.
Opinion delivered by Justice Evans, Justices
THE STATE OF TEXAS, Appellee Bridges and Lang-Miers participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 21st day of July, 2017.
–8–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
STEVEN KENT HOLLOWAY, Appellant On Appeal from the 401st Judicial District
Court, Collin County, Texas
No. 05-16-00095-CR V. Trial Court Cause No. 401-82104-2015
Opinion delivered by Justice Evans, Justices
THE STATE OF TEXAS, Appellee Bridges and Lang-Miers participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 21st day of July, 2017.
–9–
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-497-07
JUAN HOZA JOHNSON, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS
MCLENNAN COUNTY
Per curiam. Keasler and Hervey, JJ., dissent.
ORDER
The petition for discretionary review violates Rule of Appellate Procedure 68.4(i),
because the petition does not contain a complete copy of the opinion of the court of
appeals.
The petition is struck. See Rule of Appellate Procedure 68.6.
The petitioner may redraw the petition. The redrawn petition must be filed in the
COURT OF CRIMINAL APPEALS within thirty days after the date of this order.
En banc
Filed: August 22, 2007
Do Not Publish
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4 A.3d 693 (2010)
GROVE
v.
SMITH.
No. 1247 WDA 2009.
Superior Court of Pennsylvania.
June 18, 2010.
Affirmed, Reversed and Remanded.
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1 Kan. App. 2d 730 (1977)
573 P.2d 635
STATE OF KANSAS, Appellee,
v.
GARY D. HALL, Appellant.
No. 49,188
Court of Appeals of Kansas.
Opinion filed December 16, 1977.
Nancy Schmidt, of Frey, Smith & Schmidt, of Liberal, for the appellant.
Kim D. Ramey, County Attorney, and Curt T. Schneider, Attorney General, for the appellee.
Before FOTH, P.J., PARKS and SWINEHART, JJ.
PARKS, J.:
This is an appeal from a jury verdict which found Gary D. Hall (hereafter defendant or Hall) guilty of driving while under the influence of intoxicating liquor (K.S.A. 8-1567). The charge of transporting an open container (K.S.A. 41-804) is not a subject of this appeal.
On the evening of February 12, 1977, defendant Hall and a number of other derrick hands returned to Liberal, Kansas, from Elkhart, Kansas, where they had been working on an oil rig. The vehicle in which they were riding was owned and driven by the defendant. En route to Liberal they stopped and drank a couple of beers.
Later in Liberal, defendant and a friend, Jim Headrick, consumed two to three beers at one bar, and then went to another for two more beers. When that bar closed, the defendant and Headrick joined friends in the parking lot where they shared drinks from a bottle of whiskey. As this group dispersed, the partially-consumed bottle of whiskey was placed on the front seat of Hall's car. Hall then drove down Highway 54 where he was stopped by Trooper Roger McCullough of the Kansas Highway Patrol.
*731 Trooper McCullough testified that he observed the defendant's automobile weave as it proceeded down the highway. There was a strong odor of an intoxicant on the defendant's breath when he got out of his car. He was unsteady on his feet, his eyes were watery and bloodshot, and his pupils responded poorly to light. McCullough also testified that a number of coordination tests performed by the defendant revealed his general uncertainty and lack of coordination.
The defendant raised in his motions for judgment of acquittal and for new trial a question as to the sufficiency of the evidence which supports the verdict. We have carefully reviewed this contention and find it to be without merit. On appellate review, the sufficiency of the evidence is determined not by questioning whether the evidence established guilt beyond a reasonable doubt, but by questioning whether the evidence was sufficient to form the basis for a reasonable inference of guilt. In making this determination, the evidence is viewed in the light most favorable to the state. (State v. Ames, 222 Kan. 88, 563 P.2d 1034, Syl. 5.)
Defendant also urges that the trial court erred in failing to instruct the jury as to the lesser included crime of public intoxication (K.S.A. 21-4109, repealed Laws 1977, Ch. 115, §§ 1, 2).
Under K.S.A. 8-1567, three things must be established: (1) that the defendant operated a vehicle; (2) that the defendant was under the influence of intoxicating liquor while operating the vehicle; and (3) that the operation took place within the jurisdiction of the court.
The duty to instruct on lesser crimes is mandatory but it arises only when there is evidence upon which the accused might reasonably and properly be convicted of the lesser offense. (K.S.A. 21-3107(3); State v. Seelke, 221 Kan. 672, 561 P.2d 869.)
The undisputed evidence in this case, including the testimony of the defendant, is that Hall was driving the vehicle when stopped by the trooper. Hence, the only issue left for the consideration of the jury was whether the defendant was under the influence of intoxicating liquor while operating the vehicle. The jury would not have been warranted in finding defendant guilty of any other offense. (State v. Huff, 220 Kan. 162, 167, 551 P.2d 880.) We conclude the trial court properly ruled that the lesser instruction was not required.
Judgment affirmed.
| {
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196 F.2d 103
UNION CARBIDE & CARBON CORP.v.GRAVER TANK & MFG. CO., Inc. et al.
No. 10532.
United States Court of Appeals Seventh Circuit.
March 26, 1952.
Writ of Certiorari Denied June 2, 1952.
See 72 S.Ct. 1059.
Edward A. Haight, Chicago, Ill., John F. Oberlin, James R. Stewart, Thomas V. Koykka, all of Cleveland, Ohio, Casper W. Ooms, Chicago, Ill., Dugald S. McDougall, Chicago, Ill., for appellant.
Richard R. Wolfe, Chicago, Ill., John T. Cahill, Cahill, Gordon Zachry & Reindel, New York City, Carlson, Pitzner, Hubbard & Wolfe, Chicago, Ill., Crumpacker, May, Beamer, Levy & Searer, South Bend, Ind. (James A. Fowler, Jr., New York City, George N. Beamer, South Bend, Ill., of counsel), for plaintiff-appellee.
Before MAJOR, Chief Judge, KERNER and LINDLEY, Circuit Judges.
MAJOR, Chief Judge.
1
This is an appeal from a judgment, entered December 10, 1951, by Judge Charles A. Dewey, sitting by assignment in the United States District Court for the Northern District of Indiana, Hammond Division, adjudging defendants in contempt of court for violating an injunction issued by Judge Luther M. Swygert July 10, 1950. The proceeding which led to the entry of the judgment in controversy was an aftermath of litigation involving United States Patent No. 2,043,960, relating to a process or method of electric welding and to compositions for use in such process. In the original suit, sixteen process and seven composition claims were relied upon. All of the process claims, as well as composition claims 24, 26 and 27, were held invalid. Composition claims 18, 20, 22 and 23 were held valid and infringed. Linde Air Products Co. v. Graver Tank & Mfg. Co., D. C., 86 F.Supp. 191. This holding of validity and infringement as to these four claims was, on appeal, affirmed by this court. 7 Cir., 167 F.2d 531. At the same time, this court held valid all process claims and composition claims 24, 26 and 27. On certiorari, the Supreme Court affirmed judge Swygert in all particulars and reversed this court insofar as its decision was inconsistent with that of Judge Swygert. 336 U.S. 271, 69 S.Ct. 535, 93 L.Ed. 672 (afterward referred to as the first decision of the Supreme Court). The Supreme Court granted rehearing, limited to the question of infringement of the four valid composition claims, and again sustained Judge Swygert's finding of infringement as to defendants' composition 660, by application of the doctrine of equivalents. 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097 (afterward referred to as the second decision of the Supreme Court). Thereupon, plaintiff disclaimed all the process claims and composition claims which had been held invalid.
2
Subsequent to the second decision of the Supreme Court and on July 10, 1950, Judge Swygert, pursuant to the mandate of that court, issued a permanent injunction enjoining defendants "From making, using, advertising or selling Lincolnweld 660 flux or any other welding composition or flux covered by any of Claims 18, 20, 22, and 23 of said Patent No. 2,043,960, or offering so to do, aiding or abetting or in any way inducing infringement of said Claims * *."
3
Of the four claims held valid by Judge Swygert and sustained by the Supreme Court, for the infringement of which defendants have been held in contempt by Judge Dewey, plaintiff says, and we think correctly, that claim 23 is typical. It reads: "23. A finely-divided unbonded fusible composition for use in electric welding employing a bare metal electrode as a source of weld metal, said composition being substantially free from substances capable of evolving a detrimental quantity of gas under welding conditions and containing calcium fluoride and a major proportion of one or more alkaline earth metal silicates." (Italics here and subsequently in this opinion ours, unless otherwise noted.)
4
Defendants continued the manufacture and sale of 660 flux until July 10, 1950. In the meantime and during the course of the litigation, defendants commenced the manufacture and sale of its composition fluxes numbered 770, 780 and 760 (sometimes referred to as the "700 series" Lincoln fluxes). Plaintiff's contempt motion, filed in December 1950, named only the "700 series" fluxes. Early in 1951, defendants introduced another composition, 840. Thereupon, the court gave plaintiff leave to amend its motion for contempt so as to include this new number.
5
The controversy here revolves around the effect given to the requirement of the claims that the composition contain "a major proportion of one or more alkaline earth metal silicates." In the former litigation, the controversy was confined to the words, "one or more alkaline earth metal silicates," while instantly it is more specifically directed to the words, "a major proportion." Defendants' 660, adjudged to infringe, consisted of 95% or more of manganese silicate, while plaintiff's Unionmelt 20 consisted of slightly less than 95% of alkaline earth metal silicates. The Supreme Court in its second decision held that manganese silicate was the equivalent of an alkaline earth metal silicate and, applying the doctrine of equivalents, found infringement. In the compositions of both plaintiff and defendants there before the court, the ingredients were component parts and had been fully prefused, with complete chemical reaction. That this dual action was taught by the patent there can be no doubt. Whether it was required is a question, as will subsequently appear, of much importance in the instant case.
6
Plaintiff states that the appeal involves a single contested issue, that is, whether the trial court was clearly in error in finding that the defendants violated the writ of permanent injunction by the manufacture, sale and use of the accused fluxes. Obviously, that is the ultimate issue, but its resolution is dependent upon numerous subsidiary issues raised by the defendants. They contend, (1) that none of the accused fluxes contain "a major proportion of alkaline earth metal silicates," as called for by the claims; (2) the specifications demand that "the chemical reaction between the components of the welding composition must be completed before it is used in welding," i. e., that silicates be formed therefrom; (3) broader claims were rejected and the limitations to "a major proportion" and to "silicates" as distinguished from their component ingredients introduced to avoid rejection; (4) the limitations were relied on both in the Patent Office and in the courts to distinguish the claimed flux from the prior art, and (5) the distinction expressed in these claim limitations and the specifications has become res adjudicata in this case.
7
Other contested issues raised by the defendants may or may not become material, dependent upon a decision of those which we have stated.
8
The prior electric welding art, the nature of the Jones invention, the reason for sustaining the validity of the four composition claims now in dispute, as well as that for invalidating three composition and all process claims, are shown in detail in the opinion and findings of Judge Swygert, by the opinion of this court and by the opinions of the Supreme Court, and we need indulge in no detailed repetition. It may be noted, and we think this is without dispute, that plaintiff's flux, with its "alkaline earth metal silicates," as well as defendants' 660 flux, held to infringe by use of its manganese silicate, adjudicated to be an equivalent, are both completely reacted and, when fused, consist of chips of homogenous, glassy material described by the patent as "characterized by vitreous fracture" (i. e., broken glass). On the other hand, the accused fluxes consist of non-homogenous granules composed of particles of the different components held together by a binder but visibly retaining their individual characters. This difference is due to the fact that the chemical reaction between the components of plaintiff's welding composition are complete before use, while in the accused compositions the chemical reaction is not complete before use. True, there is a dispute; in fact, defendants contend that there is no chemical reaction between the components of the accused fluxes, while plaintiff contends that at least partial reaction takes place. Defendants contend that they do nothing more than heat the raw materials in a gas oven for the purpose of driving out water vapor and other gases, and not for the purpose or with the result of producing chemical reaction among the components.
9
We think it is not in dispute but that the chemical reaction is essential to produce the "silicates" called for in the claims.1 Defendants' process by which their compositions are produced requires heating for short time to a maximum temperature of from 1400° F. to 1800° F., while plaintiff's process by which its fluxes are produced requires heating for a longer period at a temperature of 2800° F. This difference in the temperature accounts for the fact that plaintiff's fluxes are completely chemically reacted prior to use in the welding process while those of the defendants experience no such chemical reaction or, at any rate, only partial reaction. More specifically, plaintiff's product when manufactured and sold is completely reacted from a chemical standpoint, while defendants' product is not. At most, and this is doubtful, it has been only partially reacted, and the completion of the reaction takes place, if at all, at the time of and in connection with the welding process.
10
Plaintiff devotes more energy than necessary, we think, in emphasizing the importance of its invention. Its merits have been sufficiently extolled by the courts before which it has been litigated and it requires no further testimonial. And we think some of the confusion in the case arises from the failure to distinguish between plaintiff's composition as described in the four claims in suit and the process employed in the utilization of its composition. It must be kept in mind that all of its process claims have been declared invalid in view of the prior art. As Judge Swygert stated, D.C., 86 F. Supp. 191, 195, "The mechanical operational steps involved are identical with those used by Robinoff [No. 1,782,316]. Indeed, the patentees who started with the teachings of Robinoff merely sought an improved welding composition or flux to be used with his operational method." In fact, it appears undisputed but that both plaintiff and the defendants use the process or operation taught by Robinoff, as they each have a right to do.
11
Plaintiff, naturally and rightly, relies heavily upon the two decisions of the Supreme Court, the first of which, 336 U.S. 271, 69 S.Ct. 535, 93 L.Ed. 672, held that Rule 52 (a) of the Federal Rules of Civil Procedure, 28 U.S.C., is controlling and that reversal is permissible only where the findings of the trial court are "clearly erroneous," and the court sustained the findings of the District Court both upon the issues of validity and invalidity of the claims in suit. The court pointed out, referring to the District Judge, 336 U.S. at page 274, 69 S.Ct. at page 537, "He concluded that what was really invented was that which was claimed and bounded by the composition claims Nos. 18, 20, 22, and 23." The court also pointed out, 336 U.S. at page 277, 69 S.Ct. at page 538, "We have frequently held that it is the claim which measures the grant to the patentee." (Citing cases.)
12
We need not stop to inquire to what extent, if any, the Supreme Court has modified or retracted its view as to the applicability of Rule 52(a) in patent litigation (but see Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162). This is so for the reason that we think the issue for decision is legal rather than factual and, furthermore, we are not so much concerned with the findings made by Judge Dewey as we are with those which he failed to make and on one important issue (subsequently discussed) which he refused to make.
13
In the second Supreme Court decision, 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097, notwithstanding the court's sweeping denunciation of one who practices a fraud upon a patent and the application of the doctrine of equivalents to the facts before it, there is little, if anything, in the opinion which affords an answer to our instant problem. We note, however, that the court again stressed the weight to be given a finding by the District Court on the issue before it and stated, 339 U.S. at page 609, 70 S.Ct. at page 857, "A finding of equivalence is a determination of fact." Plaintiff goes so far as to suggest that defendants' argument here is little more than a rehashing of that made to the Supreme Court. We do not so understand. There, the court held that the substitution by the defendants in their flux 660 of manganese silicate was the equivalent of the "earth metal silicates" called for in the claims. It should be pointed out, however, and this is important, that there was no contention in that case that the patentee was estopped by its previous representations and activities from claiming that manganese silicate was the equivalent of the earth metal silicate called for in the claims.
14
In any event, we do not understand that the Supreme Court by its decision intended to retract or modify the doctrine announced in Exhibit Supply Co. v. Ace Patents Corp., 315 U.S. 126, 62 S.Ct. 513, 86 L.Ed. 736. There, the court had before it a patent on a gaming device commonly referred to as a pin ball game. This court, 7 Cir., 119 F.2d 349, had held the patent valid and infringed. The claim called for a certain conductor means "imbedded in" the table. Previously a claim which required that the conductor means be "carried by" the table had been disallowed in the Patent Office. The Supreme Court, as in its second decision in the instant litigation, took the case solely on the issue of infringement, found non-infringement and reversed this court. In doing so the court stated 315 U.S. at page 136, 62 S.Ct. at page 518: "Whatever may be the appropriate scope and application of the doctrine of equivalents, where a claim is allowed without a restrictive amendment, it has long been settled that recourse may not be had to that doctrine to recapture claims which the patentee has surrendered by amendment." The court further stated: "By the amendment, he recognized and emphasized the difference between the two phrases and proclaimed his abandonment of all that is embraced in that difference. [Citing cases.] The difference which he thus disclaimed must be regarded as material, and since the amendment operates as a disclaimer of that difference it must be strictly construed against him."
15
In Schriber-Schroth Co. v. Cleveland Trust Co., 311 U.S. 211, 217, 312 U.S. 654, 61 S.Ct. 235, 238, 85 L.Ed. 132, the court stated: "But the particular invention to which the patentee has made claim in conformity to the statute is not always to be ascertained from an inspection of the specifications and claims of the patent alone. Where the patentee in the course of his application in the patent office has, by amendment, cancelled or surrendered claims, those which are allowed are to be read in the light of those abandoned and an abandoned claim cannot be revived and restored to the patent by reading it by construction into the claims which are allowed."
16
These explicit pronouncements by the Supreme Court have been followed by this court in Dixie Cup Co. v. Paper Container Mfg. Co., 7 Cir., 169 F.2d 645, and Ric-Wil Co. v. E. B. Kaiser Co., 7 Cir., 187 F.2d 1.
17
Judge Dewey in his conclusions of law stated that the accused fluxes infringe because they do "substantially the same thing, operate in substantially the same way, and produce the same result as the composition described in the claims," and it is fair to assume that Judge Dewey's decision resulted in the main from the application of this principle. There is no doubt from the cases but that this test is often applied in determining the issue of infringement. The question arises, however, as to the validity of its application in a case where the doctrine of estoppel is properly invoked. While we find no case where this question has been discussed, we think it obvious that there are instances where both doctrines cannot be given effect because of their inconsistency. It appears plain that the principle relied upon by Judge Dewey could not have been given effect in the Exhibit Supply Co. case because it would have met head-on with the estoppel principle which the court applied. In fact, its application would have required a different result in that case.
18
While we shall later refer to the findings made by Judge Dewey, we think it pertinent to make an observation or two concerning his able and well-written opinion. He states, "The Jones et al. invention is so broad and teaches so many new and additional features regarding electric welding that it seems to me the patent itself transcends in importance the compositions which are set out in the claims of the patent, and that the claims are in truth subordinate to the invention shown by the patent." At another point he states, "The defendants in relying upon the opinion of their counsel, it seems to me, should have known that the patent was much broader than the claims standing alone might indicate." These statements appear to indicate that in his view the scope of plaintiff's invention was not to be measured by its claims. If so, we think the view was erroneous. See quote, supra, from 336 U.S. 271, 277, 69 S.Ct. 535.
19
Also, the opinion, in response to defendants' contention with reference to estoppel, stated, "It is unnecessary to discuss these questions as I am satisfied the defendants' fluxes are composed of substantially the same ingredients as those set out in the claims of the plaintiff's patent." We doubt the validity of this reasoning. The fact, if such it be, that the accused fluxes are composed of substantially the same ingredients is no reason in itself, under the authorities we have heretofore discussed, to deny the application of the doctrine of estoppel. Thus, it appears to us that the result reached by Judge Dewey rests upon the erroneous premise, (1) the scope of the invention was not confined to the patent claims; (2) even though defendants had not overstepped the bounds of the claims they had come "too close to the patent"; (3) the accused fluxes are "substantially the same" as the patented flux and infringe because of the sameness "in their use and results."
20
As already noted, the decision in this case must depend largely upon the meaning attributed to the words "a major proportion of one or more alkaline earth metal silicates," contained in each of the four claims. Defendants construe this language to call for a composition containing something more than 50% of alkaline earth metal silicates or their equivalents, while plaintiff argues that the language calls for nothing more than a percent which constitutes an important part of the flux. Dictionary definitions of the words "major" and "proportion" are relied upon by the parties as sustaining their respective contentions. We think they are of little help because definitions are available which support either view.
21
It is our judgment that defendants' interpretation of the controversial language must be accepted. The ordinary and usual connotation attributable to such words is hardly susceptible to any other conclusion. But more important is the history attached to these claims and, more particularly, the controverted language from the time the claims emerged from the Patent Office until the commencement of the instant litigation. Even though the specifications do not define "a major proportion," it would seem that its teachings have been forcibly illustrated by plaintiff's performance. Under the protection of the patent, and particularly these claims, it commenced and during the years has continued the manufacture and sale of its fluxes, which admittedly contain 94% of alkaline earth metal silicates or their equivalents. It is interesting and we think also pertinent to note that so far as we are aware plaintiff had never, until the commencement of this contempt proceeding, contended or raised any question but that this controverted language required a composition containing at least more than 50% of the designated silicates.
22
We suspect, however, that plaintiff's failure previously to advance its present definition of "a major proportion" was due to the realization that such a concession would place in serious question the validity of the claims. If "a major proportion" means or can be interpreted to mean any percent — 10, 20 or 40 — their validity would be open to serious challenge because of their indefiniteness and uncertainty. As the Supreme Court said, first decision, 336 U.S. at page 277, 69 S.Ct. at page 538, "The statute makes provision for specification separately from the claims and requires that the latter `shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery.'" (Title 35 U.S.C.A. § 33.) These observations, of course, are not intended to reflect upon the validity of the claims, but they are such that we should hesitate to now accede to an interpretation which, if it had been made at the time their validity was under attack, would in all probability have resulted in a contrary decision on that issue.
23
The file wrapper history, we think, militates strongly against plaintiff's instant position. Perhaps no good purpose can be served and certainly it would unduly prolong this opinion to review this history in detail. On numerous occasions claims general in their nature were rejected by the Examiner, and it was only after amended claims were submitted which were specific in calling for "a major proportion" that the present claims were allowed. In arguing in support of claims 32 and 33, which eventually became claims 22 and 23 (two of those in suit), the patentee stated: "Judging from applicants' knowledge and the prior art cited, the applicants were the first to discover that the compositions disclosed in the present application, e. g., compositions consisting principally of alkaline earth metal silicate in a finely divided unbonded state, are useful as electric welding compositions in which a bare metal electrode is employed as the source of weld metal."
24
In the same argument, in distinguishing Severance (No. 429,777), the applicant stated: "Therefore, Severance does not disclose nor suggest an electric welding composition in which an alkaline earth metal silicate or its equivalent constitutes the major portion of the composition. Even if the content of the pumice-stone and the dolomite or silicate are considered together, such ingredients still would constitute but a minor proportion of the entire compound." This argument was made by the applicant even though Severance showed a silicate content of between 20 and 33%, which was distinguished on the basis that it constituted "but a minor proportion of the entire compound." Other claims were rejected by the Examiner, with the statement: "Further he does not teach that an alkaline earth metal silicate and/or an alkaline earth metal fluoride in pure form or in just any proportion of a combination is efficacious."
25
Further claims were submitted, including claims 11 and 13 (claims 18 and 20 now in issue). The applicant stated of these claims, "These characteristics are, briefly, a high content of alkaline earth metal silicate, and substantial absence of uncombined iron oxide." Thus, these four claims were allowed on applicant's representation that the alkaline earth metal silicate was of "high content," that it was the "principal" ingredient of the combination and that it was of "a major proportion," in contrast with "a minor proportion" as disclosed by Severance. The representations made at that time are in marked contrast to plaintiff's present position, wherein it is asserted in effect that the proportion of earth metal silicates is immaterial and that the test is whether they are sufficient to obtain the desired result.
26
Plaintiff calls attention to the fact that claim 24 was allowed, which called for "a fluxing material for electric welding comprising metallic silicate and calcium fluoride," and appears to argue from this that "a major proportion" was not a controlling consideration upon which allowance of claims was obtained. It must be noted, however, that this broad claim was held invalid by Judge Swygert (affirmed by the Supreme Court) and, as already suggested, we think the claims before us would have met the same fate had they been couched in such broad language, that is, if they had failed to designate the proportion of silicate or if the designation employed, i. e., "a major proportion," had been interpreted as plaintiff now urges.
27
Judge Dewey did not determine, in fact refused to make a finding, as to the proportion of silicate contained in the accused fluxes. It would have been well near impossible to do so. Rarely have we studied a record which is so replete with contradictions and with opinions, some of which are based on assumptions admitted not to exist. Judge Dewey stated: "It would be a little difficult from the testimony of the experts to come to a positive decision as to whether defendants' composition did contain a major proportion of silicate as the experts are somewhat divided on the question. All of the experts for the plaintiff and at least some of the experts for the defendants admit that there are some silicates of a kind referred to in the claims of the patent appearing in defendants' product in some appreciable degree, but differ as to the amount."
28
This statement, so we think, begs the issue. How can a composition claim which requires "a major proportion" be infringed by a composition which contains the critical element only in an "appreciable degree"? There is no dispute, however, but that all of the four accused fluxes contained silicates in amounts far less than 50%. Both the plaintiff and the defendants have submitted charts showing in color the component elements of the accused fluxes. (770 is not shown on the charts because, as we understand, defendants have ceased its manufacture and sale.) The percentage of silicates of alkaline earth metals and equivalents contained in the accused fluxes, as shown by plaintiff's chart, are 840, 35.6%; 760, 24%; 780, 41%. These percentages are quite favorable to the plaintiff, perhaps more so than the record justifies, for the reason that they include elements which plaintiff designates as equivalents and which may or may not be; in any event, they have not been so adjudicated. Plaintiff's chart also shows what it denominates as "incipient" silicates (i. e., components heated to free them of gas and moisture) in the following amounts: 840, 57.4%; 760, 29.2 to 64%. No "incipient" silicates are shown for 780. "Incipient" silicates, according to plaintiff's theory, are components which embrace the potentiality of developing silicate when chemically reacted. The word "incipient," so far as we know, is without significance in chemistry and is a stranger to the patent specifications and to the proceedings in the Patent Office. It is plaintiff's theory, however, as we understand, that what it denominates "incipient" silicates are the equivalent of the silicates called for in the claims, and thus plaintiff reaches the conclusion that the accused fluxes contain "a major proportion" of silicates.
29
The frailty of this argument resides in the fact that it ignores the teachings of the patent as well as the basis upon which the claims were adjudged to be valid. This argument ignores the difference between the complete chemical reaction attained at high temperature taught by the patent and employed by the plaintiff in producing a composition with "a major proportion" of silicates, and defendants' method of heating at low temperature to free its composition of gas and moisture but not sufficient to produce silicates in any definable amount. The patent specification states, "The chemical reactions between the components of the welding composition must be completed before it is used in welding. Failure in this regard most surely invites porosity." And it must be remembered that a chemical reaction between two properties has the effect of producing a totally different property (see footnote 1). Again, plaintiff by its commercial flux illustrates the teaching of its patent with a composition which has been subjected to a complete chemical reaction of its elements prior to use in welding. This is also true of defendants' 660 flux, adjudged to infringe.2 On the other hand, defendants' accused fluxes are not completely chemically reacted before use but, admittedly, there is a reaction in some undeterminable amount at situs.
30
Judge Swygert found that plaintiff had developed a welding composition "in which all reactions were entirely completed by prefusing at high temperature." In fact, it was this complete chemical reaction prior to use by which Judge Swygert distinguished the composition claims from the prior art. D.C., 86 F.Supp. 200.
31
In its brief filed in this court on the original appeal, plaintiff, referring to claim 23 as typical of the four claims now in suit, stated, "That, and every other claim in the patent, is qualified by the unequivocal instructions of the patent specification," and enumerated five conditions which "must" exist in order to perfect a successful welding composition. The first "must" stated was, "The chemical reactions between the components of the welding composition must be completed before it is used in welding. Failure in this regard most surely invites porosity." And following the enumeration of the five "musts," the brief stated, "Such imperative language puts that portion of the specification in the same category as a `disclaimer' of anything which does not conform to those five `musts.'" Also, when the case was previously here, plaintiff, in response to defendants' argument that the claims were so broad that they would cover fluxes whether prefused or not, answered, "But the mandatory language of the specifications requires: `The chemical reactions between the components of the welding composition must be completed before it is used in welding. Failure in this regard most surely invites porosity.'"
32
Plaintiff in its former brief further stated: "Defendants also contended below that, if these claims were construed to cover their flux with its major proportion of manganese silicate, then in that light they were anticipated by Miller. The Trial Court took cognizance of and rejected that contention. The Trial Court quoted from the Miller patent to show that the preferred form of the Miller patent was a coating containing acidic and basic constituents which would react during the welding operation — whereas the patent in suit requires that acidic and basic constituents be reacted before the composition is used for welding." And again it was stated: "The compositions in suit, without exception, are prefused in accordance with the mandatory direction of the patent that all chemical reactions be completed before use. The clay flux was nothing more than a mechanical mixture of clay, lime and ferromanganese which had been pulverized and heated well short of prefusion and then put into a tumbling barrel so as to intermix the ingredients thoroughly."
33
Thus, in view of the unequivocal representations heretofore made, we think it too late to contend that complete chemical reaction and fusion before use in welding was not an essential requirement of the invention. It was this characterization by the patentee which distinguished it from the prior art, both in the Patent Office and before the courts.
34
True, Judge Dewey found, "The materials have been completely reacted by the kiln treatment," but that statement is modified by the further statement, "Moreover such reacted acidic and basic materials are reacted with each other by the time they come out of the Lincoln kilns to an extent that the resulting flux contains a substantial amount of silicate."
35
If the component parts of the accused compositions have been completely reacted and thereby only contain the percentage of silicates shown, there would be no infringement because they fail to constitute "a major proportion." We do not understand, however, that plaintiff makes any contention that there has been complete chemical reaction of the components of the accused fluxes. Otherwise, plaintiff's argument as to "incipient" silicates would be without point. It is forced to the position, contrary to that heretofore assumed, that complete chemical reaction and fusion prior to use is, after all, immaterial and that defendants' fluxes infringe even though there has been no or only partial chemical reaction and fusion prior to use. And this is on the theory that the components of the accused fluxes possess the potentiality, upon complete reaction, to produce silicates in "a major proportion." There is no finding upon which this theory can be predicated, as Judge Dewey found on this point only that, "There is sufficient silicate in the defendants' fluxes to accomplish the desired results * * *."
36
In our opinion, the application of the doctrine of equivalency in this case is to ignore the teachings of the patent, the representation upon which the claims in suit were allowed and, more pointedly perhaps, the representations by which their validity has been sustained in the courts. While the difference between plaintiff's composition and those accused may not be great, it is that difference which distinguished plaintiff's composition from the prior art and which enabled it to sustain the validity of its grant. It is now estopped from claiming otherwise.
37
The judgment appealed from is reversed and remanded, with directions that it be vacated.
Notes:
1
Dr. Willard, a professor of chemistry and an important expert witness for the plaintiff, was asked, "Now, what, in a little more detail, do you mean by a reaction?" He answered, "A reaction in the chemical sense is one in which there has been a chemical combination between two substances to form another substance with totally different properties."
2
Referring to the 660 flux, Dr. Willard testified, "This is a prefused material. We know that because unless the elements are combined at a high temperature and fused, there is no reaction between them."
| {
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795 F.Supp. 1057 (1992)
In re GRAND JURY NO. 91-1; GRAND JURY SUBPOENA NO. 16320CR.
Civ. A. No. 92-Y-127.
United States District Court, D. Colorado.
August 12, 1992.
*1058 Gerald J. Rafferty, Asst. U.S. Atty., Denver, Colo., for petitioner.
James J. Zak, Zak, Fox, Pehr and Fuller, P.C., Westminster, Colo., for respondent.
MEMORANDUM OPINION AND ORDER
BABCOCK, District Judge.
Petitioner Mental Health Center moves to quash a grand jury subpoena duces tecum seeking the entire medical records of a former patient. The issue is adequately briefed and oral argument will not materially aid its resolution. Because it is unclear on the present record whether the privilege has been properly invoked, the motion will be held in abeyance for 20 days.
The grand jury is investigating allegations that the patient's son violated the federal mail fraud statute, 18 U.S.C. § 1341. The government alleges that after the patient's death, his son continued to receive the deceased patient's pension benefits. The son claims that he did not know of his father's death, and the grand jury seeks the patient's medical records to prove that the son was, in fact, aware of his father's death.
Petitioner argues that the subpoena should be quashed under Colorado's mental health confidentiality statute, C.R.S. § 27-10-120. However, in a federal criminal prosecution and investigation, federal privilege law preempts a more protective state law. Fed.R.Evid. 501 provides: "[T]he privilege of a witness ... shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." Thus, the dispositive question here becomes whether federal common law would protect the information sought by the grand jury. See, Trammel v. United States, 445 U.S. 40, 47, 100 S.Ct. 906, 910, 63 L.Ed.2d 186 (1980); In re Matter of Grand Jury Impaneled Jan. 21, 1975, 541 F.2D 373, 380 (3rd Cir.1976). See generally, 2 Weinstein's Evidence 501-21 (1992), (In criminal cases, questions of privilege are analyzed under federal common law).
Whether a federal common law psychotherapist-patient privilege exists in the Tenth Circuit remains undecided. Dixon v. City of Lawton, 898 F.2d 1443, 1450 (10th Cir.1990); United States v. Crews, 781 F.2d 826, 830-31 (10th Cir.1986). In Dixon, the court held that, if it ever decided to recognize this privilege, it would look to Supreme Court Standard 504. Dixon, 898 F.2d at 1450. Using Standard 504, the court then held that the privilege would not apply in that case and, therefore, the court did not need to decide whether it would recognize the privilege. Id. Here, however, the question is squarely presented and requires resolution.
In promulgating the federal rules of evidence, the advisory committee proposed, and the Supreme Court approved, Standard 504 as a rule. Preferring a more flexible approach, Congress deleted all rules concerning specific privileges and drafted the current form of Rule 501 in their place. However, even though proposed Rule 504 was not ultimately adopted by Congress, it remains a persuasive statement of federal common law on the psychotherapist-patient privilege. Not only does it coherently and cogently set out the parameters of that privilege, but also it provides a strong indication that the Supreme Court would recognize *1059 the existence of such a privilege. As Judge Weinstein noted:
The Standards are the culmination of three drafts prepared by an Advisory Committee consisting of judges, practicing lawyers, and academicians. In its seven years of work, the Committee considered hundreds of suggestions received in response to the circulation of drafts throughout the legal community. Finally, they were adopted by the Supreme Court by an eight to one vote. The rule against advisory opinions is only slightly more violated by giving weight to this vote than it would have been had Congress not vetoed these provisions, and they had become "Rules," rather than "Standards."
2 Weinstein's Evidence 501-32 (1992).
Moreover, adoption of this privilege recognizes the special nature of the psychotherapeutic process. That process is dependent on confidential personal revelations about matters which many patients are reluctant to discuss.
Unlike the patient with physical ailments or complaints, who will likely consult a physician regardless of whether confidentiality is guaranteed, a neurotic or psychotic individual may seek help only if he is assured that his confidences will not be divulged, even in a courtroom. Thus it has been recognized that a "psychiatrist" must have his patient's confidence or he cannot help him. Even though the suppression of relevant information may result in less accurate fact finding, "the social value which effective psychiatric treatment has for the community far outweighs the potential loss of evidence."
Id. at 504-18.
Therefore, I hold that the psychotherapist-patient privilege set out in Standard 504 should be recognized as the federal common law in this district. This privilege, then, controls resolution of petitioner's motion to quash. The question now is whether the information sought in the subpoena is entitled to protection.
Standard 504 protects confidential communications among the patient, therapist, or others participating in the patient's treatment made for the purposes of diagnosis or treatment of mental or emotional conditions. The standard differs from C.R.S. XX-XX-XXX in that it does not protect medical records in toto, but rather only protects communications that were intended to be confidential. Moreover, the standard does not automatically prohibit disclosure of such information. Rather, it prohibits disclosure only if the privilege is claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient.
Here, petitioner may have standing to raise the issue of this privilege because the subpoena seeks information that could be protected. Under Standard 504, however, petitioner cannot effectively resist this subpoena until one competent to claim the privilege does, in fact, claim it. There is no showing that petitioner is the patient's personal representative and, therefore, it cannot claim the privilege on his behalf. Indeed, there is no indication that a lawful personal representative has been appointed for any purpose at all. Therefore, I will defer ruling on this motion until August 31, 1992 so that decedent's personal representative, if any, may appear to claim this privilege. If no duly appointed personal representative appears by that time with authority to claim the privilege, the motion to quash will be denied.
Accordingly, IT IS ORDERED THAT:
Petitioner's motion to quash will be held in abeyance until the close of business on August 31, 1992 so as to allow decedent's personal representative time to appear here and claim the psychotherapist-patient privilege.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5167
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EUGENE C. VENABLE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:06-cr-00155-RLW)
Submitted: May 30, 2007 Decided: July 11, 2007
Before MICHAEL and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Acting Federal Public Defender, Robert J.
Wagner, Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Stephen W.
Miller, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eugene Venable was convicted after a bench trial of
possession of a sawed-off shotgun, 26 U.S.C. § 5861(d) (2000), and
possession of a firearm by a person previously convicted of a
felony offense, 18 U.S.C. § 922(g)(1) (2000), and sentenced to
forty-one months imprisonment. He appeals, arguing that the
district court erred by denying his motion to withdraw his waiver
of a jury trial and that the district court abused its discretion
by denying his motion for a new trial based on the fact that, prior
to Venable’s trial, the judge was informed of a threat Venable
allegedly made against the judge. We affirm.
Five days before his trial on these charges, Venable
signed a “Waiver of Trial by Jury” form, stating that he had been
fully advised of the charges against him, the possible sentence,
and his right to a jury trial. Venable acknowledged that he
“knowingly, freely, and voluntarily waive[d] trial by jury.”
During a hearing held the day before his scheduled trial,
Venable, by his attorney, acknowledged that Venable had executed a
jury trial waiver, but stated that he would like to withdraw the
waiver and proceed with a jury. The court denied this motion,
noting that the trial was scheduled for the following day.
The district court judge found Venable guilty on both
charges. Venable then moved for a new trial, asserting that he
discovered that, prior to his trial, the district court judge was
- 2 -
informed that Venable had threatened to “take out” the judge if he
did not get a “sweet deal.” Venable argued that knowledge of this
threat required the judge to recuse himself and also compounded the
judge’s error in denying Venable’s motion to withdraw his jury
trial waiver. The district court denied the motion for a new
trial, stating that there was no verification that the statement
was actually made by Venable, the threat was vague, and it amounted
to mere puffing by an inmate to impress another inmate. Judge
Williams noted that the letter did not mention him by name, that he
did not deem the letter to be credible, and that it had no effect
on his consideration of the evidence.
Venable first contends that the district court erred in
denying his motion to withdraw his waiver of his right to a jury
trial. Federal Rule of Criminal Procedure 23(a) provides that a
jury trial must be held whenever the defendant is entitled to a
jury, unless: (1) the defendant waives a jury trial in writing;
(2) the government consents; and (3) the court approves. Fed. R.
Crim. P. 23(a). Any waiver of this right must be knowing,
voluntary, and intelligent. Adams v. United States, 317 U.S. 269,
277-78 (1942).
We review de novo the validity of a jury trial waiver.
United States v. Khan, 461 F.3d 477, 491 (4th Cir. 2006), cert.
denied, 75 U.S.L.W. 3440 (U.S. May 21, 2007) (No. 06-1116). While
we previously stated that the “better practice” would be for a
- 3 -
district judge to question a defendant about his desire to waive
his jury trial right, United States v. Hunt, 413 F.2d 983, 984 (4th
Cir. 1969), we have not required such a colloquy.
On the waiver form, Venable acknowledged that the waiver
was knowingly, freely, and voluntarily made and that he was aware
of the charges against him and the possible punishment. Venable
did not provide any reason for the request to withdraw the waiver
and he made no claim that the waiver was invalid. Although the
waiver form is not signed by the government or the court, it is
clear that the government consented to the waiver, as no objection
was made, and it is also clear that court approved the waiver by
entering it on the docket and by upholding the waiver against
Venable’s request to withdraw it.
Venable also asserts that the district court erred in
denying his request to withdraw the waiver or not revisiting the
issue once the judge learned of the alleged threat by Venable.
Whether a defendant will be permitted to withdraw a waiver is based
on whether the waiver was knowing and voluntary. The denial of
such a request is reviewed for an abuse of discretion. United
States v. Kelley, 712 F.2d 884, 888 (1st Cir. 1983); Wyatt v.
United States, 591 F.2d 260, 265 (4th Cir. 1979). “[S]pecial
knowledge of the trial judge that might conceivably have influenced
the waiver decision” if known to the defendant, need not be
disclosed. Wyatt, 591 F.2d at 264; see Kelley, 712 F.2d at 888.
- 4 -
Venable understood the rights he was giving up when he
entered the jury trial waiver. He offered no reason for his
request to withdraw the waiver and he did not challenge the
validity of the waiver. Additionally, the motion to withdraw the
waiver was made the day before Venable’s trial was about to begin.
Moreover, the district court was not required to inform Venable
about the alleged threat. Based on all these factors, the district
court did not abuse its discretion by denying Venable’s motion to
withdraw his waiver. See Wyatt, 591 F.2d at 265.
Next, Venable argues that the district court abused its
discretion in denying his motion for a new trial. The trial court
may grant a new trial, “if the interest of justice so requires.”
Fed. R. Crim. P. 33; United States v. Chavis, 880 F.2d 788, 793
(4th Cir. 1989). We review the district court’s denial of a motion
for a new trial for an abuse of discretion. United States v.
Stokes, 261 F.3d 496, 502 (4th Cir. 2001); United States v.
Arrington, 757 F.2d 1484, 1486 (4th Cir. 1985).
A judge shall recuse himself from any proceeding in which
“his impartiality might reasonably be questioned.” 28 U.S.C. § 455
(2000). A judge must disqualify himself when he has “a personal
bias or prejudice concerning a party.” 28 U.S.C. § 455(b)(1).
“While a defendant’s threat against a judge may in some cases raise
a sufficient question concerning bias on the part of that judge,
recusal is not automatic on the mere basis of the judge’s knowledge
- 5 -
of the threat.” United States v. Gamboa, 439 F.3d 796, 817 (8th
Cir.) (citing United States v. Yu-Leung, 51 F.3d 1116, 1119-20 (2d
Cir. 1995)), cert. denied, 127 S. Ct. 605 (2006). In this case,
recusal was not warranted. As Judge Williams noted in denying the
motion for a new trial, there was no verification in this case that
Venable actually made the threat. Also, the judge named in the
threat was not Judge Williams. Moreover, Judge Williams
specifically determined that the threat in this case was vague, not
credible, and amounted to mere puffing. The district court judge
did not take the threat seriously, and it did not affect his
disposition of Venable’s case. Because there were no grounds in
this case to reasonably question the trial judge’s impartiality,
recusal was not necessary in light of the alleged threat.
Additionally, the record does not contain any indication
that Judge Williams reacted in any negative way to the threat
allegedly made by Venable. The evidence presented at trial was
clearly sufficient to convict Venable of the two charges against
him. Thus, Venable’s guilty verdict cannot reasonably be said to
have been influenced by the threat. Additionally, after
pronouncing the verdict, Judge Williams inquired about the adequacy
of the medical care Venable was receiving. Also, the district
court sentenced Venable to forty-one months imprisonment, the low
end of the applicable forty-one to fifty-three month guideline
range. There is nothing in the record to suggest that Judge
- 6 -
Williams took any adverse action against Venable due to the alleged
threat. Because there is no reasonable question as to Judge
Williams’ impartiality in this case, recusal was not necessary and
the district court did not abuse its discretion by denying the
motion for a new trial. Stokes, 261 F.3d at 502; Arrington, 757
F.2d at 1486.
Accordingly, we affirm the district court’s orders
denying Venable’s motions to withdraw his jury trial waiver and for
a new trial. 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
- 7 -
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COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Cecilia Clinkscale v. Leiroi Mickele Daniels
Appellate case number: 01-14-00968-CV
Trial court case number: 2012-58724
Trial court: 113th District Court of Harris County
Appellant’s Motion for Rehearing of our April 16, 2015 memorandum opinion is
DENIED.
It is so ORDERED.
Judge’s signature: /s/ Harvey Brown
X Acting for the Court
Panel consists of Chief Justice Radack and Justices Brown and Lloyd.
Date: June 9, 2015
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Filed 3/24/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
STEVEN VARGAS,
Plaintiff and Appellant, G047591
v. (Super. Ct. No. 30-2012-00585496)
CHERYL BALZ, as City Clerk, etc., et al., ORDER DENYING PETITION FOR
REHEARING AND GRANTING IN
Defendants and Respondents; PART REQUESTS FOR
MODIFICATION; NO CHANGE IN
CITY OF BREA et al., JUDGMENT
Real Parties in Interest and
Respondents.
Appellant’s request for modification is granted in part and denied in part. It
is ordered that the opinion filed herein on February 21, 2014, be modified as follows:
1. On page 2, in the first paragraph of the Introduction section, beginning
“The Brea City Clerk,” delete the first three sentences and replace them with the
following three new sentences:
The Brea City Clerk is responsible for transmitting to
the Orange County Registrar of Voters for publication
all arguments in favor of or in opposition to municipal
initiatives. In this case, we hold the city clerk does not
have the authority to change an argument, or the
accompanying statutorily required form statement
identifying the author of the argument, to effectuate
what the city clerk believed was the author’s intent.
Under Elections Code section 9600, the “form
statement” is a required part of a ballot measure
argument; we also refer to the form statement as the
signature form in this opinion.
2. On page 3, in the first paragraph of the Statement of Facts and
Procedural History section, beginning “The Brea Accountability Act,” delete the last
sentence and replace it with the following new sentence:
After the Orange County Registrar of Voters
concluded both initiative petitions contained a
sufficient number of valid signatures, the Brea City
Council adopted resolution No. 2012-048, placing the
measures on the next municipal election ballot.
3. On page 12, the first paragraph, beginning “The form for signatures,” is
deleted and replaced with the following new paragraph:
The form statement for signatures of the author
or authors of arguments in favor of or in opposition to
ballot measures, which was used by the City of Brea
before the November 2012 election, was defective.
The form did not include a space for the name of the
organization on behalf of which it was being
submitted, which is information required in an
appropriate case by Elections Code section 9283.
2
These modifications do not effect a change in the judgment. To the extent
appellant has petitioned for rehearing, the petition for rehearing is DENIED.
FYBEL, J.
WE CONCUR:
O’LEARY, P. J.
RYLAARSDAM, J.
3
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435 F.3d 146
Manuel JORGE-TZOC, Petitioner,v.Alberto GONZALES, U.S. Attorney General, U.S. Department of Justice, Respondents.
Docket No. 04-1738-AG.
United States Court of Appeals, Second Circuit.
NAC Calendar: December 19, 2005.
Decided: January 18, 2006.
Anne Pilsbury, Central American Legal Assistance, Brooklyn, NY, for Petitioner.
Jonathan S. Gasser, Acting United States Attorney for the District of South Carolina; Christie V. Newman, Assistant United States Attorney, Columbia, SC, for Respondents.
Before: STRAUB, POOLER, and SOTOMAYOR, Circuit Judges.
PER CURIAM.
1
Manuel Jorge-Tzoc petitions for review of an order of the Board of Immigration Appeals ("BIA") that affirmed without opinion an order of an immigration judge ("IJ"). Although the order under review denied asylum, withholding of removal, and relief pursuant to the Convention Against Torture, Jorge-Tzoc limits his claims of error to the IJ's denial of asylum.
2
At a hearing before the IJ, Jorge-Tzoc testified that he and his family are Mayan Indians who have been singled out by the government of Guatemala for persecution. In 1982, when Tzoc was approximately seven years old, his sister, her husband, and her husband's mother, all of whom lived in a neighboring village, were fatally shot by soldiers.1 Although many other families fled the village as the army approached, Jorge-Tzoc's family members were too poor to leave and were slaughtered along with about fifteen other families. Jorge-Tzoc's family was unable to retrieve his sister's body due to the family's fear of the conditions in her village.
3
In Jorge-Tzoc's hometown of Chiche, at least four additional family members were killed. Although Jorge-Tzoc conceded that he did not witness any of the killings, he saw "a lot of bodies," including the bullet-ridden body of one of his cousins. Jorge-Tzoc's mother was afraid to go out to shop at the market.
4
About three weeks after his sister's murder, Jorge-Tzoc and his family left Chiche where they had land and animals and fled to Quiche. Jorge-Tzoc's father sold his land in Chiche so that the family could survive. The family stayed in Quiche for about a year and a half. When they returned to Chiche, the soldiers were gone, but their house was full of bullet holes, and Jorge-Tzoc's father never recovered his animals.
5
Jorge-Tzoc left Guatemala in 1993 when he was approximately eighteen and entered this country illegally. He first filed an asylum application after his 1996 arrest for illegal entry.
6
In an oral decision rendered at the close of Jorge-Tzoc's hearing, the IJ found his testimony "credible and adequate to support his claim." However, she also found that he had not proven past persecution on a protected ground because, in a letter submitted at the hearing, Jorge-Tzoc's mother stated that she believed the guerrillas were responsible for the killings. Apparently viewing petitioner and his family as simply having been caught in the strife between the guerrillas and the army, the IJ held that "[h]arm arising from general civil strife does not amount to persecution."
7
The IJ also found that Jorge-Tzoc had not established a likelihood of future persecution if he were forced to return to Guatemala. She found significant the eleven-year gap between the alleged acts of persecution and Jorge-Tzoc's flight to the United States as well as his failure to seek asylum soon after arrival. She also relied on a 1996 peace accord and the continued residence without incident of some of Jorge-Tzoc's family members in Guatemala. Finally, the IJ found that Jorge-Tzoc had not established entitlement to relief under the Convention Against Torture.
8
The BIA affirmed without opinion on March 10, 2004, and Jorge-Tzoc filed his petition for review on April 8, 2004. As previously noted, Jorge-Tzoc limits his claims of error to the asylum denial.
DISCUSSION
9
In order to be eligible for asylum, an applicant must show that he has suffered past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion or that he has a well founded fear of future persecution on one of these grounds. Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 148 (2d Cir.2003). We review the IJ's — or BIA's — determination under the substantial evidence standard, "reversing only if `no reasonable fact-finder could have failed to find' that petitioner suffered past persecution or had a well-founded fear of future persecution." Ramsameachire v. Ashcroft, 357 F.3d 169, 177 (2d Cir.2004) (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000)). However, serious legal errors such as failure to consider the entire record or reliance on factors that have no nexus to the finding made, ordinarily will require vacatur and remand for further consideration by the BIA or IJ. Cao He Lin v. DOJ, 428 F.3d 391, 401 (2d Cir.2005).
10
With these principles in mind, we begin with the IJ's finding that Jorge-Tzoc failed to establish past persecution. Although it was reasonable for the IJ to take into account the letter from Jorge-Tzoc's mother, which indicated her belief that the guerrillas were responsible for the killings of Jorge-Tzoc's family members, the IJ failed to consider evidence in the record more directly suggesting that army members or paramilitaries were behind the killings. See Jin Shui Qiu, 329 F.3d at 149 (holding that the agency must consider all factual assertions and evidence supporting a factor potentially giving rise to eligibility unless the evidence supporting a factor is too insignificant to merit discussion).
11
The June 23, 1994, Oslo accord concerning the Guatemalan civil war established the Comisíon para el Esclarecimiento Histórico or the Commission for Historical Clarification ("CEH") "to clarify with objectivity, equity and impartiality, the human rights violations and acts of violence connected with the armed confrontation that caused suffering among the Guatemalan people." See Guatemala Memory of Silence Report of the Commission for Historical Clarification Conclusions and Recommendations, Prologue, available at http: //shr.aaas.org/guatemala/ceh/report/english/toc.html (last visited December 20, 2005) ("Guatemala Memory of Silence"). In response, CEH published Guatemala Memory of Silence. Portions of this document in the administrative record include the following factual assertions relevant to determining the identity of the perpetrators of the massacre in Jorge-Tzoc's village and the surrounding area and/or to suggesting that violence was aimed by the army at a particular social group, the Mayans. First, 83% of the identified victims of the violence were Mayan. Id. at conclusion 1. Second, "state forces and related paramilitary groups were responsible for 93% of the violations documented by the CEH, including 92% of the arbitrary executions and 91% of forced disappearances." Id. at conclusion 15. Third, "throughout the armed confrontation the Army designed and implemented a strategy to provoke terror in the population [which] became the core element of the Army's operations, including those of a strictly military nature as well [as] those of psychological nature and those that were called `development' operations." Id. at conclusion 44. Fourth, when the confrontation between army and guerrillas escalated between 1974 and 1983, "Mayans as a group in several different parts of the country were identified by the Army as guerrilla allies.... [I]n the majority of cases, the identification of Mayan communities with the insurgency was intentionally exaggerated by the State, which, based on traditional racist prejudices, used this identification to eliminate any present or future possibilities of the people providing help for, or joining an insurgent project." Id. at conclusion 31. Fifth, "[t]he massacres, scorched earth operations, forced disappearances and executions of Mayan authorities, leaders and spiritual guides, were not only an attempt to destroy the social base of the guerrillas, but above all, to destroy the cultural values that ensured cohesion and collective action in Mayan communities." Id. at conclusion 32. In addition, the CEH verified the killings in Chiche by soldiers of two individuals surnamed Tzoc and thus potentially related to Jorge-Tzoc. Id. at 878, 904.
12
The IJ's failure to take the entire record into consideration was error, see Cao He Lin, 428 F.3d at 403. In this case, the error's significance is magnified because neither Jorge-Tzoc, who said the army committed the massacres, nor his mother, who said the guerrillas were responsible, claimed to have personally witnessed the events in question, although Jorge-Tzoc did testify that he saw soldiers in the village but did not see guerrillas. This lack of first-hand knowledge makes the objective reports of the CEH that much more important.
13
In support of her holding on past persecution, the IJ also noted that Jorge-Tzoc "was never victimized directly by [the] killings." Respondent contends that this finding is substantial evidence that Jorge-Tzoc did not experience persecution. Indeed, in Melgar de Torres v. Reno, 191 F.3d 307, 313 n. 2 (2d Cir.1999), we held that the killing of an uncle could not "be considered past persecution of" the petitioner. However, we believe that the circumstances of this case are distinguishable. The petitioner in Melgar de Torres was an adult who offered no objective evidence that her uncle's killing was politically motivated. Id. at 313. In contrast, Jorge-Tzoc was a child at the time of the massacres and thus necessarily dependent on both his family and his community. He also offered substantial evidence of a pervasive campaign carried out by the army against Mayans in the area in which he lived. The CEH documented two 1982 army killings of persons named Tzoc in Jorge-Tzoc's village. Further, while the family remained in their village, Jorge-Tzoc's mother was afraid to go out of their home to obtain needed groceries, and Jorge-Tzoc viewed the bullet-ridden body of his cousin lying on the ground. The army's campaign, according to Jorge-Tzoc's testimony, resulted in his relocation, along with many family members to one room in Quiche where they struggled to survive. In addition, Jorge-Tzoc's father lost his land and his animals as a result of the move. This combination of circumstances could well constitute persecution to a small child totally dependent on his family and community. See Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir.2005) (holding that an IJ must consider events cumulatively to determine whether past persecution has occurred). As the Seventh Circuit has noted, "age can be a critical factor in the adjudication of asylum claims and may bear heavily on the question of whether an applicant was persecuted or whether she holds a well-founded fear of future persecution." Liu v. Ashcroft, 380 F.3d 307, 314 (7th Cir.2004); see also Jeff Weiss, U.S. Dep't of Justice, Guidelines for Children's Asylum Claims, at 1998 WL 34032561 (1998) ("As in all asylum cases, the Asylum Officer must assess whether the harm that the child fears or has suffered is serious enough to constitute `persecution' ... The harm a child fears or has suffered, however, may be relatively less than that of an adult and still qualify as persecution.").
14
Because the IJ failed to take into account significant evidence and to address the harms Jorge-Tzoc and his family incurred cumulatively and from the perspective of a small child, vacatur of the determination that Jorge-Tzoc failed to establish past persecution is required. On remand, the IJ should consider the CEH report and other materials in the record indicating that the Guatemalan Army carried out massacres of Mayans in Jorge-Tzoc's region during 1982. She should then determine whether the massacres and their sequelae in Jorge-Tzoc's family, viewed from the perspective of a child of seven, constituted past persecution.
15
The IJ also found that Jorge-Tzoc failed to establish a well founded fear of future persecution. For this conclusion, she relied on the continued presence of Jorge-Tzoc's family members in their village, Jorge-Tzoc's own continued presence in Guatemala for eleven years, his failure to apply for asylum as soon as he arrived, and the improved conditions in Guatemala after the 1996 peace accords. If the IJ finds on remand that Jorge-Tzoc established past persecution, a different analysis will be required. Past persecution creates a presumption of future persecution, which the government can then rebut by demonstrating that (1) there has been a fundamental change in circumstances in Guatemala so that Jorge-Tzoc's fear can no longer be considered well founded; or (2) he could avoid persecution by moving to another part of Guatemala. 8 C.F.R. § 208.13(b)(1)(i)(A),(B).
CONCLUSION
16
For the reasons we have discussed, we vacate the IJ's finding that Jorge-Tzoc did not establish entitlement to asylum as well as the removal order. We leave undisturbed, based on abandonment of these issues, the findings that Jorge-Tzoc was not entitled to withholding of removal or relief pursuant to the Convention Against Torture. The stay of removal previously granted is vacated because we have completed our consideration of this petition. Finally, we remand for further proceedings consistent with this opinion.
Notes:
1
Jorge-Tzoc also submitted death certificates for his sister and her husband, which showed that both were killed by multiple gunshot wounds
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(Slip Opinion) OCTOBER TERM, 2013 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NORTHWEST, INC., ET AL. v. GINSBERG
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 12–462. Argued December 3, 2013—Decided April 2, 2014
Petitioner Northwest, Inc., terminated respondent’s membership in its
frequent flyer program, apparently based on a provision in the fre-
quent flyer agreement that gave Northwest sole discretion to deter-
mine whether a participant had abused the program. Respondent
filed suit, asserting, as relevant here, that Northwest had breached
its contract by revoking his membership status without valid cause
and had violated the duty of good faith and fair dealing because it
terminated his membership in a way that contravened his reasonable
expectations. The District Court found that the Airline Deregulation
Act of 1978 (ADA) pre-empted the breach of the duty of good faith
and fair dealing claim and dismissed the breach of contract claim
without prejudice. Respondent appealed only the dismissal of his
breach of the duty of good faith and fair dealing claim. The Ninth
Circuit reversed, finding that claim “ ‘too tenuously connected to air-
line regulation to trigger’ ” ADA pre-emption.
Held:
1. The ADA pre-empts a state-law claim for breach of the implied
covenant of good faith and fair dealing if it seeks to enlarge the con-
tractual obligations that the parties voluntarily adopt. Pp. 4–10.
(a) Before the ADA was enacted, air carriers’ routes, rates, and
services were regulated under the Federal Aviation Act of 1958. And
because that Act contained a saving provision preserving pre-existing
statutory and common-law remedies, air carriers were also regulated
by the States. The ADA did not repeal that saving provision, but it
did include a pre-emption provision to prohibit States from “en-
act[ing] or enforc[ing] a law, regulation, or other provision having the
force and effect of law related to [an air carrier’s] price, route, or ser-
vice,” 49 U. S. C. §41713(b)(1), thus ensuring that “States would not
2 NORTHWEST, INC. v. GINSBERG
Syllabus
undo federal deregulation with regulation of their own,” Morales v.
Trans World Airlines, Inc., 504 U. S. 374, 378. In Morales, the Court
recognized that the key phrase “related to” expresses a “broad pre-
emptive purpose,” id., at 383, and held that the ADA pre-empted the
use of state consumer protection laws to regulate airline advertising,
concluding that “relat[es] to” means “ha[s] a connection with, or ref-
erence to, airline ‘rates, routes, or services,’ ” id., at 384. And in
American Airlines, Inc. v. Wolens, 513 U. S. 219, the Court found that
the ADA pre-empted the use of an Illinois consumer law to challenge
an airline’s devaluation of frequent flyer earned miles. But it did not
pre-empt breach of contract claims because “terms and conditions air-
lines offer and passengers accept are privately ordered obligations”
not “ ‘a State’s “enact[ment] or enforce[ment] [of] any law, rule, regu-
lation, standard, or other provision having the force and effect of law”
within the [pre-emption provision’s] meaning.’ ” Id., at 228–229.
Pp. 4–6.
(b) The phrase “other provision having the force and effect of
law” includes state common-law rules like the implied covenant at is-
sue. Common-law rules are routinely called “provisions,” see, e.g.,
Madsen v. Women’s Health Center, Inc., 512 U. S. 753, 765, n. 3, and
they clearly have “the force and effect of law.” The pre-emption pro-
vision’s original language confirms this understanding. As first en-
acted, the provision also applied to “rule[s]” and “standard[s],” a for-
mulation encompassing common-law rules. See CSX Transp., Inc. v.
Easterwood, 507 U. S. 658, 664. And Congress made clear that the
deletion of those terms as part of Title 49’s wholesale recodification
effected no “substantive change.” §1(a), 108 Stat. 745.
Respondent’s reliance on Sprietsma v. Mercury Marine, 537 U. S.
51, is misplaced. There, the Court held that the Federal Boat Safety
Act of 1971 did not pre-empt a common-law tort claim, but that Act’s
pre-emption provision is more narrowly worded than the ADA provi-
sion. The Boat Safety Act’s saving and pre-emption provisions were
also enacted at the same time, while the Federal Aviation Act’s gen-
eral remedies saving clause is “a relic of the pre-ADA/no pre-emption
regime,” Morales, 504 U. S., at 385, that “cannot be allowed to super-
sede the specific substantive pre-emption provision,” ibid.
Exempting common-law claims would also disserve the ADA’s cen-
tral purpose, which was to eliminate federal regulation of rates,
routes, and services so they could be set by market forces. Finally, if
all state common-law rules fell outside the pre-emption provision’s
ambit, Wolens would not have singled out a subcategory, for common-
law claims based on the parties’ voluntary undertaking, as falling
outside that provision’s coverage. Pp. 6–9.
(c) Respondent’s claim “relates to” “rates, routes, or services.” It
Cite as: 572 U. S. ____ (2014) 3
Syllabus
clearly has “a connection with or reference to airline” prices, routes,
or services, Morales, 504 U. S., at 384. As in Wolens, Northwest’s
program connects to the airline’s “rates” by awarding mileage credits
redeemable for tickets and upgrades, thus eliminating or reducing
ticket prices. It also connects to “services,” i.e., access to flights and
higher service categories. Respondent’s counterarguments are un-
persuasive. His claim that he is contesting his termination, not ac-
cess to flights or upgrades, ignores his reason for seeking reinstate-
ment: to obtain reduced rates and enhanced services. Although
respondent and amici claim there have been fundamental changes in
the way that frequent flyer miles are earned since Wolens was decid-
ed, that does not matter here where respondent did not assert that he
earned miles from any activity but taking flights or that he attempt-
ed to redeem miles for anything but tickets and upgrades. Pp. 9–10.
2. Because respondent’s implied covenant claim seeks to enlarge
his contractual agreement with petitioners, it is pre-empted by
§41713(b)(1). Under Minnesota law, which controls here, the implied
covenant must be regarded as a state-imposed obligation. Minnesota
law does not permit parties to contract out of the covenant. And
when a State’s law does not authorize parties to free themselves from
the covenant, a breach of covenant claim is pre-empted under Wolens.
As an independent basis for this conclusion, if, as Minnesota law pro-
vides, the implied covenant applies to “every contract” except em-
ployment contracts for “policy reasons,” then the decision not to ex-
empt other types of contracts must likewise be based on a policy
determination, namely, that the policy reason for the employment
contract rule does not apply in other contexts.
Petitioners claim that the refusal to pre-empt all implied covenant
claims, regardless of state law, will lead to a patchwork of rules that
will frustrate the ADA’s deregulatory aim. But airlines can avoid
such a result if they contract out of covenants where permitted by
state law. Nor are participants in frequent flyer programs left with-
out protection. They can avoid an airline with a poor reputation and
possibly enroll in a more favorable rival program. Moreover, the De-
partment of Transportation has the authority to investigate com-
plaints about frequent flyer programs. Finally, respondent might
have been able to vindicate his claim of ill treatment by Northwest
had he appealed his breach of contract claim. Pp. 10–14.
695 F. 3d 873, reversed and remanded.
ALITO, J., delivered the opinion for a unanimous Court.
Cite as: 572 U. S. ____ (2014) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–462
_________________
NORTHWEST, INC., ET AL., PETITIONERS v. RABBI S.
BINYOMIN GINSBERG
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 2, 2014]
JUSTICE ALITO delivered the opinion of the Court.
We must decide in this case whether the Airline Deregu
lation Act pre-empts a state-law claim for breach of the
implied covenant of good faith and fair dealing. Following
our interpretation of the Act in American Airlines, Inc. v.
Wolens, 513 U. S. 219 (1995), we hold that such a claim is
pre-empted if it seeks to enlarge the contractual obliga
tions that the parties voluntarily adopt. And because the
doctrine is invoked in the present case in an attempt to
expand those obligations, we reverse the judgment of the
Court of Appeals.
I
A
Like many airlines, petitioner Northwest, Inc. (North
west), established a frequent flyer program, its World-
Perks Airline Partners Program, to attract loyal cus
tomers. Under this program, members are able to earn
“miles” by taking flights operated by Northwest and other
“partner” airlines. Members can then redeem these miles
for tickets and service upgrades with Northwest or its
airline partners.
2 NORTHWEST, INC. v. GINSBERG
Opinion of the Court
Respondent became a member of Northwest’s World-
Perks program in 1999, and as a result of extensive
travel on Northwest flights, he achieved “Platinum Elite”
status (the highest level available) in 2005.
In 2008, however, Northwest terminated respondent’s
membership, apparently in reliance on a provision of the
WorldPerks agreement that provided that “[a]buse of the . . .
program (including . . . improper conduct as determined
by [Northwest] in its sole judgment[ ) ] . . . may result in
cancellation of the member’s account.” App. 64–65. Ac
cording to respondent, a Northwest representative tele
phoned him in June 2008 and informed him that his
“Platinum Elite” status was being revoked because he had
“ ‘abused’ ” the program. Id., at 35. In a letter sent about
two weeks later, Northwest wrote:
“[Y]ou have contacted our office 24 times since De
cember 3, 2007 regarding travel problems, including
9 incidents of your bag arriving late at the luggage
carousel. . . .
. . . . .
“ Since December 3, 2007, you have continually asked
for compensation over and above our guidelines. We
have awarded you $1,925.00 in travel credit vouchers,
78,500 WorldPerks bonus miles, a voucher extension
for your son, and $491.00 in cash reimbursements. . . .
“ Due to our past generosity, we must respectfully
advise that we will no longer be awarding you com
pensation each time you contact us.” Id., at 58–59.
Respondent requested clarification of his status, but a
Northwest representative sent him an e-mail stating that
“[a]fter numerous conversations with not only the Legal
Department, but with members of the WorldPerks de
partment, I believe your status with the program should
be very clear.” Id., at 60.
Cite as: 572 U. S. ____ (2014) 3
Opinion of the Court
B
Alleging that Northwest had ended his membership as
a cost-cutting measure tied to Northwest’s merger with
Delta Air Lines, respondent filed a class action in the
United States District Court for the Southern District of
California on behalf of himself and all other similarly
situated WorldPerks members. Respondent’s complaint
asserted four separate claims.1 First, his complaint al
leged that Northwest had breached its contract by re
voking his “Platinum Elite” status without valid cause.
Second, the complaint claimed that Northwest violated the
duty of good faith and fair dealing because it terminated
his membership in a way that contravened his reasonable
expectations with respect to the manner in which North
west would exercise its discretion. Third, the complaint
asserted a claim for negligent misrepresentation, and
fourth, the complaint alleged intentional misrepresenta
tion. Respondent sought damages in excess of $5 million,
as well as injunctive relief requiring Northwest to restore
the class members’ WorldPerks status and prohibiting
Northwest from future revocations of membership.
The District Court held that respondent’s claims for
breach of the covenant of good faith and fair dealing,
negligent misrepresentation, and intentional misrepresen
tation were pre-empted by the Airline Deregulation Act of
1978 (ADA or Act) as amended, 49 U. S. C. §41713. These
claims, the court concluded, were “relate[d] to” North
west’s rates and services and thus fell within the ADA’s
express pre-emption clause. App. to Pet. for Cert. 69.
Respondent’s remaining claim—for breach of contract—
——————
1 Applying California choice-of-law rules, the District Court held that
Minnesota law applies because respondent “was a resident of Minneap
olis, appears to fly in and out of Minnesota, and Northwest’s principal
place of business is Minnesota.” App. to Pet. for Cert. 70. That deter
mination was not challenged on appeal.
4 NORTHWEST, INC. v. GINSBERG
Opinion of the Court
was dismissed without prejudice under Federal Rule of
Civil Procedure 12(b)(6). The court held that respondent
had failed to identify any material breach because the
frequent flyer agreement gave Northwest sole discretion to
determine whether a participant had abused the program.
Respondent appealed the dismissal of his breach of the
duty of good faith and fair dealing claim but not the other
claims that the court had dismissed.
The Ninth Circuit reversed. 695 F. 3d 873 (2012).
Relying on pre-Wolens Circuit precedent, the Ninth Cir
cuit first held that a breach of implied covenant claim is
“ ‘too tenuously connected to airline regulation to trigger
preemption under the ADA.’ ” 695 F. 3d, at 879. Such
a claim, the Ninth Circuit wrote, “does not interfere with
the [Act’s] deregulatory mandate” and does not “ ‘force
the Airlines to adopt or change their prices, routes or
services—the prerequisite for . . . preemption.’ ” Id., at 880.
In addition, the Court held that the covenant of good faith
and fair dealing does not fall within the terms of the Act’s
pre-emption provision because it does not have a “direct
effect” on either “prices” or “services.” Id., at 877, 881.
We granted certiorari. 569 U. S. ___ (2013).
II
A
Before the enactment of the ADA, the Federal Aviation Act
of 1958 empowered the Civil Aeronautics Board to regulate
the interstate airline industry. Pursuant to this authority,
the Board closely regulated air carriers, controlling, among
other things, routes, rates, and services. See, e.g., Western
Air Lines, Inc. v. CAB, 347 U. S. 67 (1954); Federal Aviation
Act of 1958, 72 Stat. 731. And since the Federal Aviation Act
contained a saving provision preserving pre-existing statu
tory and common-law remedies, §1106, id., at 798, air carriers
were also regulated by the States. See Morales v. Trans
World Airlines, Inc., 504 U. S. 374, 378 (1992).
Cite as: 572 U. S. ____ (2014) 5
Opinion of the Court
In 1978, however, Congress enacted the ADA, which
sought to promote “efficiency, innovation, and low prices”
in the airline industry through “maximum reliance on
competitive market forces and on actual and potential
competition.” 49 U. S. C. §§40101(a)(6), (12)(A). While the
ADA did not repeal the predecessor law’s saving provision,
it included a pre-emption provision in order to “ensure
that the States would not undo federal deregulation with
regulation of their own.” Morales supra, at 378. In its
current form, this provision states that “a State, political
subdivision of a State, or political authority of at least 2
States may not enact or enforce a law, regulation, or other
provision having the force and effect of law related to a
price, route, or service of an air carrier that may provide
air transportation under this subpart.” §41713(b)(1).
We have had two occasions to consider the ADA’s pre
emptive reach. In Morales, we held that the ADA
pre-empted the use of state consumer protection laws to
regulate airline advertising. We recognized that the key
phrase “related to” expresses a “broad pre-emptive pur
pose.” 504 U. S., at 383. Noting our interpretation of
similar language in the pre-emption provision of the Em
ployee Retirement and Income Security Act of 1974, 29
U. S. C. §1144(a), we held that a claim “relat[es] to rates,
routes, or services,” within the meaning of the ADA, if the
claim “ha[s] a connection with, or reference to, airline
‘rates, routes, or services.’ ” 504 U. S., at 384. The older
saving provision, we concluded, did not undermine this
conclusion. Id., at 384–385.
Subsequently, in American Airlines, Inc. v. Wolens, 513
U. S. 219 (1995), we considered the application of the ADA
pre-emption provision to two types of claims concerning an
airline’s frequent flyer program: first, claims under the
Illinois Consumer Fraud and Deceptive Business Practices
Act challenging an airline’s devaluation of earned miles
(chiefly as the result of the imposition of “blackout dates”
6 NORTHWEST, INC. v. GINSBERG
Opinion of the Court
and limits on the number of seats available for customers
wishing to obtain tickets by using those miles) and, sec
ond, breach of contract claims. We reaffirmed Morales’
broad interpretation of the ADA pre-emption provision
and held that this provision barred the claims based on
the Illinois statute but not the breach-of-contract claims.
“[T]erms and conditions airlines offer and passengers
accept,” we wrote, “are privately ordered obligations and
thus do not amount to a State’s ‘enact[ment] or en
force[ment] [of] any law, rule, regulation, standard, or
other provision having the force and effect of law’ within
the meaning of [the ADA pre-emption provision].” 513
U. S., at 228–229.
With this background in mind, we turn to the question
whether the ADA pre-empts respondent’s claim for breach
of the implied covenant of good faith and fair dealing.
B
The first question we address is whether, as respondent
now maintains, the ADA’s pre-emption provision applies
only to legislation enacted by a state legislature and regu
lations issued by a state administrative agency but not to
a common-law rule like the implied covenant of good faith
and fair dealing. We have little difficulty rejecting this
argument.
To begin, state common-law rules fall comfortably with
in the language of the ADA pre-emption provision. As
noted above, the current version of this provision applies
to state “law[s], regulation[s], or other provision[s] having
the force and effect of law,” 49 U. S. C. §41713(b)(1). It is
routine to call common-law rules “provisions.” See, e.g.,
Madsen v. Women’s Health Center, Inc., 512 U. S. 753,
765, n. 3 (1994); United States v. Barnett, 376 U. S. 681,
689–700 (1964); Brown v. United Airlines, Inc., 720 F. 3d
60, 68 (CA1 2013) (“[W]hen read in context, the word
‘provision’ in the ADA preemption provision can most
Cite as: 572 U. S. ____ (2014) 7
Opinion of the Court
appropriately be construed to include common law”). And
a common-law rule clearly has “the force and effect of
law.” In Wolens, we noted that this phrase is most natu
rally read to “ ‘refe[r] to binding standards of conduct that
operate irrespective of any private agreement,’ ” 513 U. S.,
at 229, n. 5, and we see no basis for holding that such
standards must be based on a statute or regulation as
opposed to the common law.
This understanding becomes even clearer when the
original wording of the pre-emption provision is taken into
account. When first enacted in 1978, this provision also
applied to “rule[s]” and “standard[s],” and there surely can
be no doubt that this formulation encompassed common
law rules. Indeed, we held in CSX Transp., Inc. v. East-
erwood, 507 U. S. 658, 664 (1993), that virtually identical
language in the Federal Railroad Safety Act of 1970 in
cludes “[l]egal duties imposed . . . by the common law.”
See also Riegel v. Medtronic, Inc., 552 U. S. 312, 324
(2008) (holding that a State’s “ ‘requirements’ ” “includ[e]
[the state’s] common-law duties”).
While “rule[s]” and “standard[s]” are not mentioned in
the current version of the statute, this omission is the
result of a recodification that was not meant to affect the
provision’s meaning. Those additional terms were deleted
as part of a wholesale recodification of Title 49 in 1994,
but Congress made it clear that this recodification did not
effect any “substantive change.” § 1(a), 108 Stat. 745.
In arguing that common-law rules fall outside the scope
of the ADA pre-emption provision, respondent relies on
our decision in Sprietsma v. Mercury Marine, 537 U. S. 51
(2002), which held that the Federal Boat Safety Act of
1971 did not pre-empt a common-law tort claim, but there
are critical differences between the pre-emption provisions
in the Boat Safety Act and the ADA. The Boat Safety Act
provision applies only to “a law or regulation,” 46 U. S. C.
§4306, whereas the ADA provision, as just explained, is
8 NORTHWEST, INC. v. GINSBERG
Opinion of the Court
much more broadly worded.
In addition, the relationship between the ADA’s pre
emption provision and the saving provision carried over
from the prior law is also quite different. The Sprietsma
decision placed substantial weight on the Boat Safety Act’s
saving provision, which was enacted at the same time as
the pre-emption provision, but we have described the
Federal Aviation Act saving clause as “a relic of the pre
ADA/no pre-emption regime.” Morales, 504 U. S., at 385.
That provision applies to the entire, sprawling Federal
Aviation Act, and not just to the ADA, and as we held in
Morales, this “general ‘remedies’ saving clause cannot be
allowed to supersede the specific substantive pre-emption
provision.” Ibid. See also Wolens, supra, at 245
(O’Connor, J., concurring in judgment in part and dissent
ing in part). For these reasons, respondent’s interpreta
tion of the ADA pre-emption provision cannot be squared
with the provision’s terms.
Exempting common-law claims would also disserve the
central purpose of the ADA. The Act eliminated federal
regulation of rates, routes, and services in order to allow
those aspects of air transportation to be set by market
forces, and the pre-emption provision was included to pre
vent the States from undoing what the Act was meant to
accomplish. Morales, supra, at 378. What is important,
therefore, is the effect of a state law, regulation, or provi
sion, not its form, and the ADA’s deregulatory aim can be
undermined just as surely by a state common-law rule as it
can by a state statute or regulation. See Medtronic, Inc.,
supra, at 325 (recognizing that state tort law that imposes
certain requirements would “disrup[t] the federal scheme
no less than state regulatory law to the same effect”). As
the First Circuit has recognized, “[i]t defies logic to think
that Congress would disregard real-world consequences and
give dispositive effect to the form of a clear intrusion into a
federally regulated industry.” Brown, 720 F. 3d, at 66–67.
Cite as: 572 U. S. ____ (2014) 9
Opinion of the Court
Finally, if all state common-law rules fell outside the
ambit of the ADA’s pre-emption provision, we would have
had no need in Wolens to single out a subcategory of common
law claims, i.e., those based on the parties’ voluntary under
taking, as falling outside that provision’s coverage.
Accordingly, we conclude that the phrase “other provi
sion having the force and effect of law” includes common
law claims.
C
We must next determine whether respondent’s breach of
implied covenant claim “relates to” “rates, routes, or ser
vices.” A claim satisfies this requirement if it has “a con
nection with, or reference to, airline” prices, routes, or
services, Morales, supra, at 384, and the claim at issue
here clearly has such a connection. That claim seeks
respondent’s reinstatement in Northwest’s frequent flyer
program so that he can access the program’s “valuable . . .
benefits,” including “flight upgrades, accumulated mile
age, loyalty program status or benefits on other airlines,
and other advantages.” App. 49–50.
Like the frequent flyer program in Wolens, the North
west program is connected to the airline’s “rates” because
the program awards mileage credits that can be redeemed
for tickets and upgrades. See 513 U. S., at 226. When
miles are used in this way, the rate that a customer pays,
i.e., the price of a particular ticket, is either eliminated or
reduced. The program is also connected to “services,” i.e.,
access to flights and to higher service categories. Ibid.
Respondent argues that his claim differs from the
claims in Wolens because he “does not challenge access to
flights and upgrades or the number of miles needed to
obtain air tickets” but instead contests “the termination of
his WorldPerks elite membership,” Brief for Respondent
12, but this argument ignores respondent’s reason for
seeking reinstatement of his membership, i.e., to obtain
10 NORTHWEST, INC. v. GINSBERG
Opinion of the Court
reduced rates and enhanced services. Respondent’s prof
fered distinction has no substance.
Respondent and amici suggest that Wolens is not control
ling because frequent flyer programs have fundamentally
changed since the time of that decision. We are told that
“most miles [are now] earned without consuming airline
services” and are “spent without consuming airline ser
vices.” Brief for State of California et al. 18 (emphasis
deleted). But whether or not this alleged change might
have some impact in a future case, it is not implicated here.
In this case, respondent did not assert that he earned his
miles from any activity other than taking flights or that he
attempted to redeem miles for anything other than tickets
and upgrades. See Tr. of Oral Arg. 47–48.
III
With these preliminary issues behind us, we turn to the
central issue in this case, i.e., whether respondent’s im
plied covenant claim is based on a state-imposed obliga
tion or simply one that the parties voluntarily undertook.
Petitioners urge us to hold that implied covenant claims
are always pre-empted, and respondent suggests that such
claims are generally not pre-empted, but the reasoning of
Wolens neither dooms nor spares all such claims.
While most States recognize some form of the good faith
and fair dealing doctrine, it does not appear that there is
any uniform understanding of the doctrine’s precise mean
ing. “[T]he concept of good faith in the performance of
contracts ‘is a phrase without general meaning (or mean
ings) of its own.’ ” Tymshare, Inc. v. Covell, 727 F. 2d
1145, 1152 (CADC 1984) (Scalia, J.) (quoting Summers,
“Good Faith” in General Contract Law and the Sales
Provisions of the Uniform Commercial Code, 54 Va. L.
Rev. 195, 201 (1968)); see also Burton, Breach of Contract
and the Common Law Duty to Perform in Good Faith, 94
Harv. L. Rev. 369, 371 (1980). Of particular importance
Cite as: 572 U. S. ____ (2014) 11
Opinion of the Court
here, while some States are said to use the doctrine “to
effectuate the intentions of parties or to protect their rea
sonable expectations,” ibid., other States clearly em-
ploy the doctrine to ensure that a party does not “ ‘violate
community standards of decency, fairness, or reasonable
ness.’ ” Universal Drilling Co., LLC v. R & R Rig Service,
LLC, 2012 WY 31, 37, 271 P. 3d 987, 999; DDP Roofing
Services, Inc. v. Indian River School Dist., 2010 WL
4657161, *3 (Del. Super. Ct., Nov. 16, 2010); Allworth v.
Howard Univ., 890 A. 2d 194, 201–202 (D. C. 2006);
Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping
Center Assocs., 182 N. J. 210, 224, 864 A. 2d 387, 395-396
(2005); Harper v. Healthsource New Hampshire, 140 N. H.
770, 776, 674 A. 2d 962, 965–966 (1996); Borys v. Josada
Builders, Inc., 110 Ill. App. 3d 29, 32–33, 441 N. E. 2d
1263, 1265–1266 (1982); Restatement (Second) of Con
tracts §205, Comment a (1979). See also Summers, The
General Duty of Good Faith—Its Recognition and Concep
tualization, 67 Cornell L. Rev. 810, 812 (1982).
Whatever may be the case under the law of other juris
dictions, it seems clear that under Minnesota law, which is
controlling here, see n. 1, supra, the implied covenant
must be regarded as a state-imposed obligation.2 Re
——————
2 Like Minnesota, some other States preclude a party from waiving
the obligations of good faith and fair dealing. Hunter v. Wilshire Credit
Corp., 927 So. 2d 810, 813, n. 5 (Ala. 2005); Smith v. Anchorage School
Dist., 240 P. 3d 834, 844 (Alaska 2010); Wells Fargo Bank v. Arizona
Laborers, Teamsters & Cement Masons Local No. 395, 201 Ariz. 474,
491, 38 P. 3d 12, 29 (2002); Habetz v. Condon, 224 Conn. 231, 238, 618
A. 2d 501, 505 (1992); Dunlap v. State Farm Fire & Cas. Co., 878 A. 2d
434, 442 (Del. 2005); Hill v. Medlantic Health Care Group, 933 A. 2d
314, 333 (D. C. 2007); Chase Manhattan Bank, N. A. v. Keystone Dis-
tributers, Inc., 873 F. Supp. 808, 815 (SDNY 1994); Magruder Quarry &
Co., LLC v. Briscoe, 83 S. W. 3d 647, 652 (Mo. App. 2002) (“When terms
are present that directly nullify the implied covenants of good faith and
reasonable efforts, . . . the contract is void for lack of mutuality”);
Gillette v. Hladky Constr., Inc., 2008 WY 134, ¶31, 196 P. 3d 184, 196.
12 NORTHWEST, INC. v. GINSBERG
Opinion of the Court
spondent concedes that under Minnesota law parties
cannot contract out of the covenant. See Tr. of Oral Arg.
33–34; see also In re Hennepin Cty. 1986 Recycling Bond
Litigation, 540 N. W. 2d 292, 502 (Minn. 1995); Sterling
Capital Advisors, Inc. v. Herzog, 575 N. W. 2d 121, 125
(Minn. App. 1998); Minnwest Bank Central v. Flagship
Properties LLC, 689 N. W. 2d 295, 303 (Minn. App. 2004).
And as a leading commentator has explained, a State’s
“unwillingness to allow people to disclaim the obligation of
good faith . . . shows that the obligation cannot be implied,
but is law imposed.” 3A A. Corbin, Corbin on Contracts
§654A, p. 88 (L. Cunningham & A. Jacobsen eds. Supp.
1994). When the law of a State does not authorize parties
to free themselves from the covenant, a breach of covenant
claim is pre-empted under the reasoning of Wolens.
Another feature of Minnesota law provides an addition
al, independent basis for our conclusion. Minnesota law
holds that the implied covenant applies to “every con
tract,” In re Hennepin Cty., supra, at 502, with the notable
exception of employment contracts. Hunt v. IBM Mid
America Employees Fed. Credit Union, 384 N. W. 2d 853,
857–858 (Minn. 1986). The exception for employment
contracts is based, in significant part, on “policy reasons,”
id., at 858, and therefore the decision not to exempt other
types of contracts must be based on a policy determina
tion, namely, that the “policy reasons” that support the
rule for employment contracts do not apply (at least with
——————
But other States permit a party to contract out of the duties imposed
by the implied covenant. Steiner v. Thexton, 48 Cal. 4th 411, 419–420,
226 P. 3d 359, 365 (2010) (“ ‘ “The general rule [regarding the covenant
of good faith] is plainly subject to the exception that the parties may, by
express provisions of the contract grant the right to engage in the very
acts and conduct which would otherwise have been forbidden by an
implied covenant of good faith and fair dealing” ’ ”); Shawver v. Huckle-
berry Estates, LLC, 140 Idaho 354, 362, 93 P. 3d 685, 693 (2004); Farm
Credit Servs. of Am. v. Dougan, 2005 SD 94, ¶10, 704 N. W. 2d 24, 28.
Cite as: 572 U. S. ____ (2014) 13
Opinion of the Court
the same force) in other contexts. When the application of
the implied covenant depends on state policy, a breach
of implied covenant claim cannot be viewed as simply an
attempt to vindicate the parties’ implicit understanding of
the contract.
For these reasons, the breach of implied covenant claim
in this case cannot stand, but petitioners exhort us to go
further and hold that all such claims, no matter the con
tent of the law of the relevant jurisdiction, are pre-empted.
If pre-emption depends on state law, petitioners warn,
airlines will be faced with a baffling patchwork of rules,
and the deregulatory aim of the ADA will be frustrated.
But the airlines have means to avoid such a result. A
State’s implied covenant rules will escape pre-emption
only if the law of the relevant State permits an airline to
contract around those rules in its frequent flyer program
agreement, and if an airline’s agreement is governed by
the law of such a State, the airline can specify that the
agreement does not incorporate the covenant. While the
inclusion of such a provision may impose transaction costs
and presumably would not enhance the attractiveness of
the program, an airline can decide whether the benefits of
such a provision are worth the potential costs.
Our holding also does not leave participants in frequent
flyer programs without protection. The ADA is based on
the view that the best interests of airline passengers are
most effectively promoted, in the main, by allowing the
free market to operate. If an airline acquires a reputation
for mistreating the participants in its frequent flyer pro
gram (who are generally the airline’s most loyal and valu
able customers), customers can avoid that program and
may be able to enroll in a more favorable rival program.
Federal law also provides protection for frequent flyer
program participants. Congress has given the Depart
ment of Transportation (DOT) the general authority to
prohibit and punish unfair and deceptive practices in air
14 NORTHWEST, INC. v. GINSBERG
Opinion of the Court
transportation and in the sale of air transportation, 49
U. S. C. §41712(a), and Congress has specifically author
ized the DOT to investigate complaints relating to fre
quent flyer programs. See FAA Modernization and
Reform Act of 2012, §408(6), 126 Stat. 87. Pursuant to
these provisions, the DOT regularly entertains and acts on
such complaints.3
We note, finally, that respondent’s claim of ill treatment
by Northwest might have been vindicated if he had pur
sued his breach-of-contract claim after its dismissal by the
District Court. Respondent argues that, contrary to the
holding of the District Court, the frequent flyer agreement
did not actually give Northwest unfettered discretion to
terminate his membership in the program, see Brief for
Respondent 20–21, and the United States makes a related
argument, namely, that even if the agreement gave
Northwest complete discretion with respect to a determi
nation regarding abuse of the program, the agreement did
not necessarily bar a claim asserting that membership
was ended for an ulterior reason, such as an effort to cut
costs. If respondent had appealed the dismissal of his
breach-of-contract claim, he could have presented these
arguments to the Court of Appeals, but he chose not to
press that claim. He voluntarily dismissed the breach-of
contract claim and instead appealed only the breach of
implied covenant claim, which we hold to be pre-empted.
* * *
Because respondent’s implied covenant of good faith
and fair dealing claim seeks to enlarge his contractual
agreement with petitioners, we hold that 49 U. S. C.
§41713(b)(1) pre-empts the claim. The judgment of the
Court of Appeals for the Ninth Circuit is reversed, and the
——————
3 See DOT, Air Travel Consumer Report 44 (Feb. 2014), online at
http://www.dot.gov/sites/dot.dev/files/docs/2014_February_ATCR.pdf (as
visited Mar. 31, 2014, and available in Clerk of Court’s case file).
Cite as: 572 U. S. ____ (2014) 15
Opinion of the Court
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4518
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CESAR FUENTES-RUIZ,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cr-00072-CCE-1)
Submitted: February 19, 2015 Decided: February 24, 2015
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Stephen F. Wallace, WALLACE LAW FIRM, High Point, North
Carolina, for Appellant. Terry Michael Meinecke, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cesar Fuentes-Ruiz pled guilty in accordance with a written
plea agreement to Hobbs Act robbery, 18 U.S.C. § 1951(a) (2012);
and brandishing a firearm during a crime of violence, 18 U.S.C.
§ 924(c)(1)(A)(i) (2012). He was sentenced to 178 months for
the robbery and eighty-four months, consecutive, for the firearm
offense, for an aggregate sentence of 262 months. Fuentes-Ruiz
now appeals. His attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), questioning the
validity of the guilty plea and the reasonableness of the
sentence, but concluding that there are no meritorious issues
for appeal. Fuentes-Ruiz was advised of the right to file a pro
se brief but has not filed such a brief. We affirm.
After careful review, we hold that the guilty plea was
knowing and voluntary. Fuentes-Ruiz stated at the Fed. R. Crim.
P. 11 hearing that he had a high school diploma and was not
under the influence of drugs or alcohol. He expressed
satisfaction with his attorney’s services. A factual basis for
the plea was presented to the court, and Fuentes-Ruiz admitted
his guilt. Finally, the district court substantially complied
with the requirements of Rule 11.
With respect to sentencing, the court properly calculated
the Guidelines range, considered the 18 U.S.C. § 3553(a) (2012)
factors and the arguments of the parties, and provided a
2
sufficiently individualized assessment based on the facts of the
case. The court specifically explained its reasons for denying
Fuentes-Ruiz’s request for a downward variance. We therefore
conclude that the sentence is procedurally reasonable.
Additionally, given the totality of the circumstances, the
sentence is substantively reasonable. See Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Carter, 564
F.3d 325, 330 (4th Cir. 2009).
Pursuant to Anders, we have reviewed the entire record and
have found no meritorious issues for appeal. Accordingly, we
affirm the district court’s judgment. This court requires that
counsel inform Fuentes-Ruiz, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Fuentes-Ruiz requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Fuentes-Ruiz. 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
3
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887 So.2d 289 (2004)
Roger Eugene RICH
v.
Christy Vandiver RICH.
No. 2020289.
Court of Civil Appeals of Alabama.
January 23, 2004.
*291 Thomas B. Woodall, Guntersville, for appellant.
Patricia W. Cobb Stewart, Scottsboro, for appellee.
MURDOCK, Judge.
This is a child-custody-modification case. Roger Eugene Rich, the father, appeals from a judgment of the Jackson Circuit Court awarding custody of the parties' child to Christy Vandiver Rich, the mother.
The parties married in 1996. They had one child, a son, who was born in September 1991; paternity was not in dispute.
In January 1998, the father filed a complaint for divorce. At the father's request, the trial court entered an ex parte order awarding him pendente lite custody of the child. The mother filed an answer, a counterclaim for divorce, and a motion for pendente lite custody of the child. The mother alleged that the father had harassed, stalked, and threatened her and that she believed the father was a danger to the child based upon his "mental state." The mother also filed a petition for protection from abuse requesting that the trial court enter an ex parte order enjoining the father from harassing her; the trial court granted that petition. Also, after holding a hearing on the mother's motion for pendente lite custody, the trial court entered an order in March 1998 awarding the mother pendente lite custody of the child. In its March 1998 order, the trial court also awarded the father standard visitation, but it did so with the caveat that the father's visitation "shall be generally supervised by the father's mother."
In December 1998, the trial court entered a judgment divorcing the parties based upon the ground of incompatibility of temperament. The trial court reserved jurisdiction to consider the issues of property division and child custody and stated that "the parties shall continue under the terms and conditions of the temporary order ... entered ... [in] March 1998."
In March 1999, the trial court held a hearing as to the remaining issues in the case. On June 29, 1999, it entered a judgment stating, in part:
"The Court has heard considerable testimony from numerous witnesses for each party herein and from the evidence finds that the Court has justifiable concern, based on past conduct of the parties, for their true fitness as custodial parents. The father ... has an extended history of drug abuse, although he has no current involvement with the use of illegal drugs... and has had no positive drug test for quite some time.... The father also appears to suffer *292 from an undiagnosed seizure disorder, or `blackout' disorder, which could potentially be dangerous to his child.
"The mother has a long history of petite mal seizures which are controlled to some extent by her medication, but from which she still suffers periodic episodes. From aught that appears, the child has learned to cope with the mother's periodic seizures, has not been harmed thereby, and has been trained to make an appropriate telephone call if his mother suffers a seizure when he is alone with her. The mother now lives in the Grant community with her mother and the child attended the DAR school system last year where he did well in school.
"The father lives in the Long Hollow Community near his parents and remains in the former marital home which he has purchased.... The father has a close family circle which assists him with caring for the child when he is with the father, and the Court finds the father's family support group to be stable and reliable for this purpose. There is no indication that the father is actively attending church with the child at the present time.
"The mother is not actively engaged in employment and draws an [Social Security Income] check due to her disability.... The evidence reflects that she has been active in the child's school work, and has been a room mother at his first grade class at DAR school.
"Based on the evidence, the Court is not presently ready to make a permanent custody award to either parent, but does find that the child's current living arrangement with his mother and his school record dictate that the child spend the school year primarily with the mother. However, the Court finds that the father has been active in the child's life and that the child would benefit from extended visits with the father during the summer months.
"Accordingly, it is ORDERED and DECREED as follows:
"1. That the temporary custody of the child ... is awarded to the mother ... for a period from one week prior to the start of the DAR school year for 1999/2000, until one week following the end of the school year at the end of the spring term, 2000. During this time, the father is awarded standard visitation privileges....
"2. That commencing one week following the completion of the school year for 1999/2000 at DAR School, the temporary custody of the child herein is, for the summer months, reposed with the father, and the mother shall have standard visitation privileges....
"....
"6. That this action is set for review on all matters relating to the welfare of the child of these parties on the 1st day of May 2000, at 9:00 o'clock, a.m., unless, by appropriate motion and order, such review is set prior to that time."
The trial court's June 1999 judgment also required the father to make child-support payments to the mother, except during the summer months, and divided the parties marital property.
An "informal" hearing was apparently held in May 2000; the record contains no transcript of the hearing. In September 2000, the father filed a "Motion for Testimony Ore Tenus" alleging that no final judgment had been issued as to the custody of the child, requesting that the trial court take additional testimony as to the welfare of the child, and urging the trial court to apply the best-interest-of-the-child standard and award him custody of the child. Thereafter, the trial court entered an order stating that its June 1999 *293 judgment was a "temporary custody order leaving open, in the opinion of the Court, a request for either party to submit additional testimony looking toward a final order of primary custody in one of the parties." (Emphasis in original.) After setting and resetting the father's motion for a hearing, a hearing on the motion was finally held in August 2001.
After the hearing on the father's motion, at which ore tenus evidence was received, the trial court entered a judgment on August 21, 2001, stating, in part:
"This protracted proceeding was before the Court for the last time on 16 August 2001, on the motion of the [father] ... to amend a previous order of the Court reposing temporary custody of the minor child herein in the mother.... The mother argues ... that in addressing the [father's] pending motion that the [Ex parte] McLendon [, 455 So.2d 863 (Ala.1984),] standard for review for a change of custody is appropriate.... The Court ... has addressed this issue previously and determines, again, that the [mother] has, since the original [judgment], had temporary custody only of this child and that the proper standard for review is that of the child's best interest.
"The evidence reflects that for a little over two years the child has resided with the mother in Grant, Alabama during the school year and has attended DAR Elementary School. The child has done well in school and is presently starting the fourth grade. The father has had visitation with the child for the entire summer vacation of the years 2000 and 2001 during which time the mother exercised periodic visitation during the summer....
"The Court conducted, in the presence of counsel, a lengthy in camera meeting with the child ... who the Court found to be a very bright, pleasant, young man, very well mannered and who expressed a strong love for both parents. This child expressed satisfaction with his living arrangements in both homes but did express a fairly strong preference to live with his father and spend summers with his mother.
"The mother's evidence reflects that she still suffers from periodic seizures but that, due to a change in her medication, her seizures are much less frequent now than in the past.... The mother has purchased a new home where she has lived with this child and her mother who works at the Witt Company.... The mother has remained active in the child's school and is listed as a teacher's helper at DAR Elementary school....
"The mother continues to draw [Social Security Income] disability... and, to her credit, states to the Court that the father of the child is a good father and expresses her understanding that there would be no reason for the child not to live with the father should the Court determine this to be in the child's best interest. She states to the Court that she merely wants what is best for her child. The Court finds the mother has conducted herself properly as the temporary custodial parent of this child since the original order of this Court dated June, 1999.
"....
"The father has remarried and continues to reside in the Long Hollow Community at the original former marital home of these parties. He continues to work as a painter and maintenance person for the Jackson County Board of Education.... The father's mother continues to live a few doors down the street from the father and is present this date ... to assert to the Court that *294 she is ready, willing and able to assist the father in caring for [the child] as he may need her to do.... The [father] has suffered no more `black outs' since that testified to in the previous hearing, is on no medication and regularly attends the Holiness Faith Tabernacle Church in Scottsboro. The father has been active in the little league program in Scottsboro for the past three seasons and has coached [the child] in that capacity....
"... The [father] asserts that the [mother] has been a good mother to the child and that the parties have reached a much higher level of cooperation with each other on behalf of the child since the last hearing of this Court for which the Court applauds both parties.
"Based on the totality of the circumstances as presently presented to the Court and using the standard of what would be in the best interest of this child, it is the opinion of the Court that the father should be awarded temporary custody of this child for the school year 2001-2002.... The parties should note that the custody of this child remains as temporary custody only due to the fact this child has lived primarily with the mother for the past two years and has spent the past two summers with the father and to allow this Court to continue to use the less burdensome standard for custodial matters when this matter is reviewed at a future date as noted hereinbelow.
"Accordingly, it is ORDERED and DECREED as follows:
"1. That commencing at 3:00 p.m. on Sunday August 19, 2001, the temporary custody of the child ... is hereby reposed in the father, ... pending further order of this Court. The mother shall not be presently required to pay a fixed amount of child support but should, to the extent she can and on the limited means that she has, assist the child financially.
"2. It is further ORDERED that the mother ... shall have standard visitation privileges.
"3. IT is further ORDERED that this action is set for a review of the issue of custody of this minor child on the 13th day of May 2002 at 9:00 a.m. at which time the Court will attempt to make a final award of permanent custody of this child between these parties."
(Second emphasis added.)
After the entry of the August 2001 judgment, the mother filed a motion alleging that the trial court had erred by not applying the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984). The mother requested that the trial court vacate the August 2001 judgment or grant her a new trial. Thereafter, in December 2001, the court issued an order stating, in part:
"The Court has thoroughly reviewed the argument of counsel... and finds that, while the mother's motion correctly states that the McLendon rule would be required to be met to change even a temporary custodial order where a non-custodial parent was seeking to regain custody, the testimony and evidence even under the stricter rule was met by the father petitioning for such relief.
"Accordingly, the [mother's] motion is denied and this action is set for a final hearing on the issue of custody in this case as per previous order of this Court at which time the Court will conduct an additional in camera conference with the child of these parties and hear such additional evidence as may be appropriate in an effort to put some finality to the previously entered temporary orders of this Court."
(Emphasis added.)
In May 2002, the court held a hearing to review the case as to the issue of custody *295 of the child and conducted an in camera interview with the child. Neither party objected to the in camera interview, and the record contains no transcript of the interview. The parties agreed to submit the case to the trial court for a decision as to custody of the child based upon the evidence that had already been presented to the court in previous hearings and on its in camera interview of the child. However, before the trial court issued a judgment as to custody of the child, the mother filed a motion alleging, in part, that a few days after the May 2002 hearing, the father had been involved in an altercation at one of the child's baseball games and had been dismissed from coaching the child's team. She also alleged that in early June 2002 the father's current wife had filed a petition for protection from abuse in which the father's current wife alleged that the father had slapped her and beat her up and that this was not the first time that the father had behaved violently toward her.
The father filed a motion objecting to the mother's attempt to introduce "new evidence" in the case; the trial court denied the motion. The trial court held a hearing on the mother's motion and received documentary and ore tenus evidence regarding the incidents described in the mother's petition. That evidence included a copy of the petition for protection from abuse filed by the father's current wife and testimony from the father's wife; the father objected to the admission of his wife's petition for protection from abuse into evidence and to the court's allowing his wife to testify because, he claimed, the information in the petition and the substance of his wife's testimony was privileged information under Rule 504, Ala. R. Evid.
In July 2002, the trial court entered a judgment stating, in part:
"This matter was submitted for final consideration by the Court on 13 May, 2002, on certain stipulated facts and an in camera interview with the child.... Following these events on 13 May, 2002, counsel for the [mother] gave notice of two incidents that had occurred while this matter was under submission which, in the opinion of counsel, were relevant to those matters under consideration by the Court. Thereafter, the court conducted an additional hearing at which time the [father's] present wife ... testified and the Court accepted affidavits from counsel for each party from [an employee] of the Scottsboro Recreation Department, addressing the incident ... during the little league ball game in Scottsboro....
"The [father's] present wife filed a petition for protection from abuse against the [father] relating to an incident alleged to have occurred on 8 June, 2002, which caused the [father's] present wife to leave home for a few days. This causes the Court considerable concern as to the stability of the [father's] household although the [father's] wife has now petitioned the Court and obtained a dismissal of the protection order granted in this matter on the grounds that the parties were reconciled. The Court has read and considered thoroughly both affidavits filed ... by [the Scottsboro Recreation Department's employee] and finds that the father ... while using poor judgment in his field presence, is not considered by the Court at fault, other than by accident, in the incident occurring as described in the affidavits and that there was no wrongful intent on the part of [the father] during this event.
"The child continues to express love and affection for both parents equally and also continues to express a general preference to remain with the father. *296 Based upon the father's misconduct, notwithstanding his having been forgiven as it relates to his wife, the Court is not inclined to allow the child to remain in a home where domestic violence exists as found by the Court under the facts of this case. This is consistent with this Court's findings in other matters relating to the consequences of exposing children to domestic violence.
"Accordingly, it is ORDERED that primary custody of this child... be and hereby is awarded to the mother."
The trial court awarded the father standard visitation and awarded the mother child support.
The father filed a postjudgment motion requesting that the trial court alter, amend, or vacate its judgment or, in the alternative, that it grant him a new trial. Among the grounds asserted by the father in his postjudgment motion was the following:
"2. That the Court erred in changing temporary custody from the [father] and placing primary custody with the [mother] in that the Court failed to identify the standard that was applied by the Court in removing temporary custody from the [father] and failed to properly apply the McLendon standard to this case."
Although the father's postjudgment motion was denied by operation of law, one day after the expiration of the 90-day time limit to rule on a postjudgment motion filed pursuant to Rule 59.1, Ala. R. Civ. P., the trial court entered an order purporting to deny the father's postjudgment motion. In that order, the trial court made no mention of the McLendon standard or the father's argument that the trial court should have applied the McLendon standard in transferring physical custody of the child to the mother. Instead, the trial court's postjudgment order stated, in its entirety, as follows:
"This matter was last before the Court on 5 November, 2002 on the motion of [the father] requesting the Court to alter its previous order dated 29 July, 2002 which order reposed and transferred primary custody of the minor child ... to the mother. By agreement of the parties, the matter was submitted upon the Court conducting an additional in camera interview with this child so as to allow additional input from [the child] to the Court regarding his wishes.
"The Court conducted such an interview and again found, as before, that the child of these parties ... is a very nice young man who has great affection for both parents. He did not express any negative feelings about living primarily with his mother but did indicate to the court that he would like to spend half the time with his father.
"The Court does not feel, at the present time, that it would be in the child's best interest to actually live with his mother and father separately during equal periods but does feel that, based upon the child's request, the mother should, to the extent she reasonably can, extend to the father additional visitation from time to time beyond that awarded by the Court in its last order.
"Accordingly, it is ORDERED that with the suggestion noted hereinabove regarding additional, reasonable visitation with the father, the motion of [the father] to alter or amend the [judgment] of this Court entered on 29 July, 2002 should be and hereby is denied."
The father filed a timely appeal.
On appeal, the father argues that the trial court's July 2002 judgment should be reversed because, he says, it was based on inadmissible evidence. He also argues *297 that the trial court's judgment is due to be reversed because the mother did not file a pleading alleging that a change in custody would materially promote the child's best interests and because, he says, the trial court failed to apply the McLendon standard. The father also contends that there was insufficient evidence to support a conclusion by the trial court that the change in custody would materially promote the child's best interests.
The father first contends that the trial court erred because it considered his wife's petition for protection from abuse and her testimony as to the contents of that petition. In the petition, the father's wife alleged that the father had
"slapped me, pushed me, yelled and screamed and told me to leave, then wouldn't let me, messed my arm up, busted up pictures in the house throwed my clothes everywhere.... I am in fear of further abuse by the defendant because: This is a repeatable scene and I don't want to be married or live or anything with him ever again."
The wife's testimony did not expand upon those allegations.
The father objected to the admission into evidence of the petition for protection from abuse and to his wife's testimony on the ground that that evidence pertained to confidential communications made during the marriage and was therefore protected by the "husband-wife privilege" provided in Rule 504, Ala. R. Evid. He does not deny that the actions described by his wife occurred. In fact, as to both the statements that he made to his wife and the actions he took toward her, the father only affirmed that he would not have taken the actions had he known a third person would hear about them.[1]
The husband-wife privilege "`has for its object the security from apprehension of disclosure a security in consequence of which confidences will be freely given and not withheld.'" Brown v. State, 588 So.2d 551, 556 (Ala.Crim.App.1991) (quoting Handley v. State, 515 So.2d 121, 125 (Ala.Crim.App.1987), quoting in turn 8 Wigmore, Evidence § 2337 (McNaughton rev.1961)).
"The confidential communication privilege between spouses applies to `knowledge acquired by one spouse's observation of an act of the other spouse in private if the circumstances indicate the actor-spouse did the act in the presence of the other spouse solely because of the confidence normally inspired by the marriage relation.'"
Brown, 588 So.2d at 556 (quoting Handley, 515 So.2d at 124-25, quoting in turn Charles W. Gamble, McElroy's Alabama Evidence § 103.01(4) (3d ed.1977)). The privilege does not protect acts that do not "seek the shelter of the intimacy of the marital relationship." Brown, 588 So.2d at 557; see also Charles W. Gamble, McElroy's Alabama Evidence § 103.01(4)(b) (5th ed. 1996) ("Confidentiality turns upon the intent of the communicating or acting spouse as judged from objective facts." (Footnote omitted.)).
It is obvious to this court that physical abuse by one spouse of the other spouse is not an act or communication for which the abuser is entitled to, or should expect, "security from apprehension of disclosure," *298 or to which the law's protection of confidences between spouses should apply. Brown, 588 So.2d at 556. Physical abuse by one spouse of the other spouse is not an act that "seek[s] the shelter of the intimacy of the marital relationship" in the manner contemplated by the husband-wife privilege. Brown, 588 So.2d at 557; see also People v. Johnson, 284 Cal.Rptr. 579, 233 Cal.App.3d 425 (1991) (statements made by a husband to his wife as he was beating her were not privileged because they were an abuse of the relationship on which the privilege was predicated); State v. Bryant, 56 Ohio App.3d 20, 564 N.E.2d 709 (1988) (husband's threats and abusive behavior toward his wife were not confidential communications and thus were not privileged); Sterling v. State, 814 S.W.2d 261, 262 (Tex.App.1991) (husband's abusive treatment of his wife was not a confidential communication).
The trial court did not err when it concluded that the petition for protection from abuse filed by the father's wife and the wife's testimony as to the petition's contents were not privileged communications under Rule 504, Ala. R. Evid.
The father next argues that the trial court's judgment should be reversed because the mother failed to file a pleading that alleged that a change of custody would "materially promote the child's best interest." See Ex parte McLendon, 455 So.2d 863 (discussed infra). The father has cited no authority in support of this argument. Also, the trial court's August 2001 judgment provided that custody would be reviewed and that another custody decision would be entered after a hearing to be held in May 2002. Neither party sought appellate review of the August 2001 judgment, and both parties consented to the trial court's May 2002 custody review for purposes of deciding who would have permanent custody of their child. The father cannot complain on appeal that the trial court considered whether to modify custody after he consented to the submission of that issue to the trial court. See McKinley v. McKinley, 277 Ala. 471, 172 So.2d 35 (1965); see also Neal v. Neal, 856 So.2d 766, 784 (Ala.2002) ("A party cannot win a reversal on an error that party has invited the trial court to commit.").
Further, after the trial court took the custody issue under advisement, the mother filed a motion for the trial court to take additional evidence based, in part, upon changed circumstances since the trial court's entry of the August 2001 judgment, i.e., allegations that the father had committed domestic violence after the May 2002 hearing. After taking that evidence into consideration, the trial court rendered its decision and awarded custody to the mother. Although the pleadings and motions before the trial court did not specifically allege that a change of custody would "materially promote the child's best interest," if the evidence shows that the best interest of the child would be materially promoted by changing its custody, the pleadings should be deemed amended to conform to such evidence. Cf. Capra v. Capra, 56 Ala.App. 90, 93, 319 So.2d 286, 289 (1975) (deeming the pleadings amended to include an allegation conforming to the evidence that a change of custody would be in the best interest of a child).
Next, the father argues that the trial court erred because, he says, it failed to apply the McLendon standard when making its custody award. In Ex parte McLendon, 455 So.2d 863, our Supreme Court recognized that where there has been a voluntary forfeiture of custody or a judicial "decree" awarding custody of a child and the custodian has "`acted upon'" the change of custody "`to the manifest interest and welfare of the child, the parent will not be permitted to reclaim the *299 custody of the child, unless [he or she] can show that a change of the custody will materially promote [the] child's welfare.'" 455 So.2d at 865 (quoting Greene v. Greene, 249 Ala. 155, 157, 30 So.2d 444, 445 (1947)). The Supreme Court explained this material-promotion requirement, which is often referred to as the "McLendon standard" or the "McLendon presumption," as
"`a rule of repose, allowing the child, whose welfare is paramount, the valuable benefit of stability and the right to put down into its environment those roots necessary for the child's healthy growth into adolescence and adulthood. The doctrine requires that the party seeking modification prove to the court's satisfaction that material changes affecting the child's welfare since the most recent decree demonstrate that custody should be disturbed to promote the child's best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. Frequent disruptions are to be condemned.'"
Ex parte McLendon, 455 So.2d at 865-66 (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976)). The Supreme Court concluded its explanation of the standard by stating:
"Although the best interests of the child are paramount, this is not the standard to be applied in this case. It is important that [the mother] show that the child's interests are promoted by the change, i.e., that she produce evidence to overcome the `inherently disruptive effect caused by uprooting the child.' Wood v. Wood, 333 So.2d at 828."
Ex parte McLendon, 455 So.2d at 866.
Whether the McLendon standard was the appropriate standard for the trial court to apply in this case depends on whether the trial court's August 21, 2001, award of temporary custody of the child to the father was merely a pendente lite order. If it was a pendente lite order, it did not create a McLendon presumption in the father's favor. See, e.g., Ex parte R.C.L., 627 So.2d 920 (Ala.1993); Sims v. Sims, 515 So.2d 1 (Ala.Civ.App.1987). After a careful review of the record and of each of the three judgments entered between June 1999 and July 2002, pursuant to which the trial court made changes of custody, including both the trial court's June 1999 judgment, which governed the custody of the child for more than two years and which the trial court considered not to be a pendente lite order but a "temporary custody" award to which the McLendon presumption applied, and the trial court's August 2001 judgment, with which the question at hand is directly concerned, we conclude that the August 2001 judgment did not make a pendente lite custody award, but instead made a temporary custody award of the nature to which the McLendon presumption has been held to apply.
"In dealing with custody cases, it is of paramount importance for a court to determine the kind of order it is entering or the kind of proceeding it is conducting; for example, it matters whether the court is entering a temporary order in contrast to a pendente lite order and whether it is conducting an initial/original proceeding as opposed to a modification proceeding. We recognize that the language used by the courts can be confusing, especially the language speaking of a temporary award of custody as a final order, as opposed to a pendente lite order, which is not a final order. However, we must keep in mind that, by its very nature, custody is always temporary and never permanent. *300 Although the temporary custody of a child may have been placed with someone, the court always retains jurisdiction to modify custody under the appropriate circumstances. This is to say that temporary custody is actually permanent custody subject to change. There must be a sense of finality to child placement, but that placement is always subject to change by the court when the facts and law before the court indicate that a change is required.
"Semantically, this entire matter would be simpler if all courts declined to use the phrase `temporary custody' and simply used `pendente lite' or `custody' as the circumstances require.
"Pendente lite orders are generally entered only during the pendency of the litigation and are usually replaced by a final order or judgment that is entered at the end of the litigation. Sims v. Sims, 515 So.2d 1 (Ala.Civ.App.1987). In custody situations, a pendente lite order clearly envisions continuing custody pending a later final determination of that custody dispute, whereas `custody awards' are final and are generally intended to remain in effect until one of the parties succeeds in a petition requesting the court to modify its custody award. Sims, supra."
Ex parte J.P., 641 So.2d 276, 278 (Ala.1994) (emphasis added).
Our appellate courts have held that a determination of custody generally intended to last until one of the parties successfully petitions the court to modify its judgment, even where the custody may be called "temporary" by the trial court, is a "prior judicial decree" for purposes of McLendon. See Ex parte J.P., 641 So.2d at 278; Sims, 515 So.2d at 2; Davis v. Moody, 459 So.2d 914 (Ala.Civ.App.1984); Chandler v. Manning, 411 So.2d 160 (Ala.Civ.App.1982). A "pendente lite custody" order does not constitute a judgment awarding custody for purposes of McLendon.
In the present case, the successive "temporary custody" awards made by the trial court on June 29, 1999, and August 21, 2001, were not made with the "pendency of the [existing] litigation" in mind. Ex parte J.P., 641 So.2d at 278. Instead, each of those judgments was a custody award made by the trial court in such a manner as to allow more facts to be developed i.e., to allow a trial period with the custodial parent and to make it possible to base any subsequent change in custody on the history of the parties' relationships that developed during that period.
The trial court acknowledged in its August 2001 judgment that it was framing its award of custody to the father as one of "temporary custody," despite the fact that the child had already lived with the mother for a period of more than two full years under its previous "temporary custody" award and despite the fact that the court did not plan to review the custody award to the father until the following May. Despite this context for the court's actions, the trial court admitted that it was employing the concept of "temporary custody" in an effort to avoid the application of the McLendon presumption, stating that it had framed its award as one of temporary custody "to allow this Court to continue to use the less burdensome standard for custodial matters when this matter is reviewed at a future date." In response to the mother's postjudgment motion following the trial court's August 2001 judgment, however, the court was forced to agree with the mother's argument that the McLendon standard should apply, expressly finding that "the mother's motion correctly states that the McLendon rule would be required to be met to change even a temporary custodial order where a *301 non-custodial parent was seeking to regain custody."
In Sims, the court discussed the fact that there need be no change of circumstances in order for a trial court to change the custody of a child from that which was established in a previous pendente lite order. 515 So.2d at 2. Pendente lite orders, in other words, are only made for the "pendency of the litigation" of the existing case. Ex parte J.P., 641 So.2d at 278. It is clear that the custody awards at issue in the present case were not made by the trial court pending the litigation of the existing case, but instead were made in anticipation of a "new case," i.e., newly developed facts, potentially being presented to the trial court at some future date. That is, they were custody awards intended to remain in place until such time, well into the future, as the trial court would "review" the case to determine whether there should be a modification of custody based upon changed circumstances that might have come into existence since the last custody award. Such awards are not pendente lite awards; rather, they are "temporary custody" awards of the nature addressed in Ex parte J.P., Sims, and Davis.[2] The trial court was not free to design its custody awards in this manner so as to avoid the application of the McLendon standard.[3]
We are thus clear to the conclusion that the McLendon presumption was applicable to the trial court's July 2002 judgment. It is not sufficiently clear to us, however, whether the trial court applied that standard. The case therefore must be remanded to allow the trial court to do so.
In reaching the conclusion that this case must be remanded, we have taken into consideration the various judgments and orders entered by the trial court prior to its July 2002 judgment, including, for example, the admission by the trial court in its August 2001 judgment that it had framed the custody award in that judgment as an award of temporary custody in order to allow the court to use the "less burdensome" best-interest standard that is available when the McLendon standard does not apply. In contrast, in its July 2002 judgment, the trial court makes no mention of the McLendon standard, nor any finding from which we are willing to assume in this case that the trial court determined that the child's interest would be "materially promoted" if custody were to be transferred to the mother. Instead, *302 the court speaks in terms of not being "inclined" to allow the child to remain in the father's home. Further, following the trial court's entry of its August 2001 judgment, the mother filed a postjudgment motion asking the trial court to reconsider its judgment because, she argued, it had not applied the McLendon standard. In response, the trial court entered a postjudgment order expressly acknowledging and applying the McLendon standard. In contrast, when the father filed a similar postjudgment motion following the entry of the trial court's July 2002 judgment, the trial court responded with an order that made no mention of the McLendon standard or any suggestion of a "material promotion" finding.[4]
In light of our remand of this case to the trial court for the entry of a judgment applying the McLendon standard, we pretermit discussion of the father's contention that the evidence was insufficient to meet that standard. Our decision to remand this case to the trial court for application of the McLendon standard, however, should not in any way be construed as suggesting what the proper outcome, after the application of that standard, should be. The inquiry into factual determinations such as whether the positive good to be brought about by the proposed modification of custody will more than offset the disruptive effect of that modification should fall on the trial court, whose responsibility it is to make such determinations. Our remand merely recognizes the principle that "[t]he trial court must be allowed to be the trial court; otherwise, we (appellate court judges and justices) risk going beyond the familiar surroundings of our appellate jurisdiction and into an area with which we are unfamiliar and for which we are ill-suited factfinding." Ex parte R.T.S., 771 So.2d 475, 477 (Ala.2000).[5]
REVERSED AND REMANDED.
*303 PITTMAN, J., concurs.
CRAWLEY, J., concurs in the result, without writing.
YATES, P.J., dissents, with writing, which THOMPSON, J., joins.
YATES, Presiding Judge, dissenting.
I would affirm the judgment of the trial court modifying custody, based on § 30-3-134, Ala.Code 1975, and Williams v. Williams, 812 So.2d 352 (Ala.Civ.App.2001). Therefore, I must respectfully dissent.
The father is appealing from the trial court's judgment of July 29, 2002, wherein the trial court made a finding that domestic violence had occurred in the father's home and awarded custody to the mother on that basis. Section 30-3-134 provides: "In every proceeding in which there is at issue the modification of an order for custody or visitation of a child, a finding that domestic or family violence has occurred since the last custody determination constitutes a finding of change in circumstances." In Williams, supra, this court held that the trial court did not abuse its discretion in modifying custody under the standard set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984), where there was evidence that physical and verbal abuse had occurred since the last custody-modification proceeding, noting that § 30-3-134 provides that "`a finding that domestic or family abuse has occurred since the last custody determination constitutes a finding of change in circumstances.'" 812 So.2d at 355.
In the present case, I do not believe that a remand is necessary for the trial court to make a determination whether the applicable standard set out in McLendon was met, because, I believe, that standard has been satisfied with the trial court's specific finding of domestic abuse under the particular facts of this case and because the Legislature has mandated that a finding of domestic abuse constitutes a finding of a change in circumstances. Although a finding of domestic abuse under § 30-3-134 may not always be a "material" change in circumstances, I cannot say that the trial court abused its discretion in modifying custody after its careful consideration of the parties' situations. I also note that it is not clear from the trial court's July 29, 2002, order what standard the court applied in making its custody determination.[6]*304 Further, our supreme court has held that this court can review the evidence in light of the standard set out in McLendon, rather than remanding the case to the trial court for it to apply the McLendon standard. Ex parte Johnson, 673 So.2d 410 (Ala.1994).[7] I am not suggesting that this court become the fact-finder in the present case, as the main opinion contends in footnote 5. I would apply the ore tenus rule and affirm the judgment of the trial court based on the record before us. See P.A.T. v. K.T.G., 749 So.2d 454 (Ala.Civ.App.1999)(ore tenus rule applies in custody-modification proceedings).
THOMPSON, J., concurs.
NOTES
[1] Further, we note that the father's wife admitted that she had consulted with the mother's attorney after the alleged incident of abuse. However, when questioned by the mother's counsel about whether the wife "remembered showing [her] the marks, where you had marks on you where [the father] had beaten you up," the wife stated, "He didn't beat me up. I had marks on my arms, scratches." The wife later stated that she did not know how the marks had gotten there.
[2] The fact that the trial court set in advance a subsequent hearing date to review future developments in the lives of the parties is not enough to change our view in this regard. In essence, the trial court merely "built in" to its custody award an automatic request by the noncustodial parent for a change of custody based on changes of circumstances that might subsequently develop. Viewed another way, the trial court attempted to build into its June 1999 and August 2001 judgments a mechanism for it to consider whether future developments would justify a modification of custody without the necessity of the noncustodial parent actually filing a petition to initiate that review.
[3] The phrase "pendente lite" is Latin for "while the action is pending." Black's Law Dictionary 1154 (7th ed.1999). The manner in which pendente lite child-custody orders are treated allows trial courts, in making their final determinations of custody, to take into consideration developments that occur pending the litigation that is, developments in the lives of the parties and the child that naturally occur during the unavoidable gap in time between the filing of an action and the time when the parties are ready for, and the court can schedule, a final hearing in the normal course of our judicial process. Sanctioning the approach utilized by the trial court in this case would distort the process by allowing a trial court to postpone the scheduling of a final hearing pending future developments in the lives of the parties.
[4] That order, which is set out in its entirety above, makes reference to the child's "best interest" in addressing whether the child should live with his mother and father during equal periods of time.
The dissent states a belief that it is error to refer to this order of the trial court. Although this order is not effective for the purpose intended by the trial court because it was entered beyond the 90-day period prescribed by Rule 59.1, Ala. R. Civ. P., see Doe v. Markham, 776 So.2d 757 (Ala.2000), we do not rely upon it for that purpose; instead, we make note of it only for the insight that it provides into the analytical approach the trial court may have used in reaching its July 2002 judgment.
[5] The dissent cites Ex parte Johnson, 673 So.2d 410 (Ala.1994), for the proposition that this court can review the evidence in light of the standard set out in McLendon, rather than remanding the case to the trial court. In Ex parte Johnson, however, the Supreme Court held that the Court of Civil Appeals erred by holding the trial court in error for not receiving additional evidence in connection with a Rule 59, Ala. R. Civ. P., motion and remanding the case to the trial court to receive such evidence. The Supreme Court merely held that the Court of Civil Appeals should have proceeded to conduct an appellate review of the order entered by the trial judge on the mother's Rule 59 motion, which had become the final judgment of the trial court in response to a petition by the father for a modification of custody. In so holding, the Supreme Court simply noted that the substantive legal standard applicable to the trial court's judgment was the "material promotion" standard established in Ex parte McLendon, and that the Court of Civil Appeals should conduct its appellate review of the trial court's final judgment with that legal standard in mind. Nothing in the opinion suggested, however, that the Court of Civil Appeals should become a fact-finder or should substitute its findings of fact for those of the trial court. In other words, Ex parte Johnson does not stand for the proposition that the normal appellate review standard would not be applicable in a case such as that presented here. See generally West v. Rambo, 786 So.2d 1138 (Ala.Civ.App.2000) (applying appellate review standard of "plain and palpable" error as to a trial court's findings of fact based on its receipt of ore tenus testimony); Hinds v. Hinds, 887 So.2d 267, 272-73 (Ala.Civ.App.2003) (note 2 and accompanying text).
In addition, we note that the case of Williams v. Williams, 812 So.2d 352 (Ala.Civ.App.2001), which is also relied on by the dissent, is distinguishable from the present case. In Williams, this court affirmed the judgment of the trial court on the ground that there was sufficient evidence to support that judgment. Nothing in this court's opinion in Williams indicates that it did not apply well-established appellate review standards in making that determination. In the present case, however, we simply cannot determine whether the trial court has applied the McLendon standard. The dissent is correct that the finding of domestic abuse under § 30-3-134, Ala.Code 1975, does constitute a change in circumstances, as a matter of law, under that statute. The determination of whether there will be a "material promotion" of the child's best interests in the event the requested change of custody is ordered, however, is a different determination that should be made in the first instance by the trial court.
[6] I believe it is error to refer to or to rely upon the trial court's order entered on November 21, 2002, wherein the trial court purported to deny the father's postjudgment motion more than 90 days after the father had filed his postjudgment motion seeking to alter or amend the July 29, 2002, judgment. "The trial court cannot allow a posttrial motion to remain pending for more than 90 days; at the end of the 90th day, the court loses its jurisdiction to entertain such a motion." Doe v. Markham, 776 So.2d 757, 760 (Ala.2000). Although the main opinion contends that it is not relying upon the void order for the purposes for which it was entered, they refer to the order, discuss the order, and use the substance of the order in reaching their conclusion. I find the main opinion's reliance on a void order, which the trial court was without jurisdiction to enter, to be a dangerous precedent in the appellate review process. This reliance on the void order "for the insight that it provides into the analytical approach" of the trial court opens the door for appellate judges to consider the merits of any and every void order, judgment, or argument in future cases. 887 So.2d 302 at n. 4.
[7] In Ex parte Johnson, our supreme court reversed this court, which had held that the trial court had erred in awarding primary physical custody to the mother and that the father was entitled to primary physical custody of the child. The supreme court stated that this court had erred in applying the "best interests" standard, and it remanded the case for a review of the trial court's award of primary physical custody in light of McLendon. On remand, this court reversed the trial court's judgment and remanded the case with instructions to the trial court to consider the evidence in light of the McLendon standard. Breedlove v. Breedlove, 673 So.2d 414 (Ala.Civ.App.1995). Subsequently, the supreme court granted a petition for a writ of mandamus ordering this court to comply with its previous order to review the trial court's award of custody in light of McLendon. Ex parte Breedlove, 673 So.2d 415 (Ala.1995). See also C.A.M. v. B.G.H., 869 So.2d 507 (Ala.Civ.App.2003) (Crawley, J., dissenting)(recognizing that the supreme court in Ex parte Johnson held that the Court of Civil Appeals can review the evidence in light of McLendon); and West v. Rambo, 786 So.2d 1138 (Ala.Civ.App.2000)(acknowledging that in Ex parte Johnson our supreme court held that where the trial court improperly applies the best-interest standard, this court is permitted to apply the McLendon standard to the evidence contained in the record).
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372 So.2d 239 (1979)
E. C. HAMILTON, Plaintiff-Appellant,
v.
LAKE CHARLES AMERICAN PRESS, INC., Defendant-Appellee.
No. 6951.
Court of Appeal of Louisiana, Third Circuit.
May 23, 1979.
Rehearing Denied July 11, 1979.
*240 E. C. Hamilton, Lake Charles, in pro. per.
Jones, Patin, Tete, Nolen & Hanchey by William M. Nolen, Lake Charles, for defendant-appellee.
Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
GUIDRY, Judge.
This is an appeal from a summary judgment which dismissed plaintiff's defamation action against the Lake Charles American Press, Inc. E. C. Hamilton, a disbarred attorney, alleges that a false statement relating to him was printed in defendant's newspaper on April 4, 1977 in the form of a written response to a reader's inquiry, and that as a result of the publication of this allegedly defamatory statement, his personal and professional reputation was damaged. Defendant publisher moved for summary judgment, contending that the alleged defamatory statement was true. The trial court granted defendant's motion, dismissed plaintiff's action, and plaintiff appeals. We affirm.
On December 18, 1970, Ernest C. Hamilton, then a practicing attorney, was convicted by a federal court of conspiring to commit mail fraud. This conviction was upheld by the Fifth Circuit Court of Appeals. United States v. Perez et al., 489 F.2d 51 (5th Cir. 1973). Appellant's application for writ of certiorari was denied by the United States Supreme Court on June 10, 1974. 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). Hamilton's conviction resulted from his participation in a state-wide scheme in which several persons, including attorneys and physicians, collaborated to defraud insurance companies by staging fake automobile accidents and making insurance settlements for nonexistent and/or exaggerated injuries. On October 11, 1974, following appellant's conviction, a petition for disciplinary action was filed against him in the Louisiana Supreme Court. On February 28, 1977, the Louisiana Supreme Court disbarred Hamilton from the practice of law in this state. 343 So.2d 985 (La.1977).
This unfortunate episode attracted a great deal of local attention, and a reader of the Lake Charles American Press wrote to that newspaper, inquiring as to what had become of the individuals who had been involved in the scheme. The newspaper printed the reader's question in a feature article entitled "The Informer", along with an answer written by reporter Bill Shearman on April 4, 1977. The question, along with the alleged defamatory statement, appeared as follows in defendant's newspaper:
"Did any of the attorneys or doctors found guilty in the local auto insurance fraud cases serve time in jail?
R. A., Lake Charles.
The five men from our area, attorneys Philip J. Shaheen Jr., Lloyd E. Hennigan and E. C. Hamilton and Drs. Kenneth Lee Perego of Vinton and Wilson D. Morris, were all found guilty in December, 1970, *241 of faking auto accidents to defraud insurance companies.
The men were sentenced to three years with the sentences suspended but with an identical amount of time on probation. The attorneys were also instructed by the court to perform legal services for indigents, public defender offices and any agencies or programs as may be directed by their respective probation officers.
The doctors were limited to medical practices in hospitals or clinics or in any such service authorized by the Louisiana State Board of Medical Examiners.
None of the five men ever actually served time but the three attorneys have been disbarred from any legal practice. Dr. Morris is working in a Leesville Hospital. Dr. Pergo's activities could not be determined." (Emphasis added)
Appellant primarily contends (as one of the "three attorneys" therein referred to) that it was not true that he had been disbarred from any legal practice at that time. Appellant also contends that it is untrue that he was convicted of "faking auto accidents to defraud insurance companies", the truth being that he was convicted of conspiracy to commit mail fraud. In support of his primary contention plaintiff alleges that on the date that this statement appeared in defendant's newspaper, he had an application for rehearing pending before the Louisiana Supreme Court[1], and that the judgment disbarring him did not become final until his petition for a writ of certiorari was denied by the United States Supreme Court, some six months after the statement had been published. 434 U.S. 835, 98 S.Ct. 124, 54 L.Ed.2d 97 (1977). The trial court found no merit to plaintiff's contentions, and found that the statement as published was true. In its written reason for judgment, the trial court stated:
"The defamatory substance of the publication, according to plaintiff's petition, consists of these two alleged inaccuracies: (1) when the publication occurred stating he was disbarred from any legal practice, he was actually legally practicing law in the City of Lake Charles, and (2) the publication stated that he was convicted of faking auto accidents to defraud insurance companies, whereas in fact, the conviction was for conspiracy to commit mail fraud. Hamilton contends that these statements were defamatory in content and thus resulted in injury to his reputation and respect, loss of income, mental pain and anguish, and impairment of performance of his professional duties.
The defendant in its motion for summary judgment urges that the publications stated the truth as a matter of fact and law, and that there is no genuine issue about that, and this lawsuit ought therefore to be terminated at this point in favor of defendant. In support of its motion for summary judgment the defendant filed the affidavit of Bill Shearman, its reporter, who researched and prepared the answer to `The Informer' question, as well as certified copies of all of the legal proceedings that took place in the Louisiana Supreme Court in connection with the disbarment matter.
The only instrument plaintiff offered to counter the motion for summary judgment was an affidavit executed by himself which was but a repetition of the averments of his pleadings.
In a case where there has been an alleged defamation, the jurisprudence is clear that the defendant may raise a perfect defense by showing the statements to have been true. In proving the truth of the allegedly defamatory matter, it is not necessary to prove the truth of every detail; it is sufficient to prove that the charges contained therein are substantially true. Otero v. Ewing, 165 La. 398, 115 So. 633 (La.1927); and Kennedy v. Item Co., 197 La. 1050, 3 So.2d 175 (1941).
The court must grant summary judgment where the facts are all in, there is no genuine issue remaining to be tried, *242 and the law commands a certain result flowing from certain proof. Here, the only question presented by the motion is the truthfulness of these newspaper reports.
Plaintiff's status as a disbarred attorney was truthfully reported by the defendant on April 4, 1977. It matters not that he was temporarily enjoying a technical procedural reprieve in the form of a stay order. It was a fact that the plaintiff had been disbarred from the practice of law by the Louisiana Supreme Court. The application for a rehearing and subsequent application for writs to the U. S. Supreme Court stayed the effect of the disbarment but did not obliterate the reality of it.
The nature of the conviction was likewise truthfully reported. In the circumstances of this case it is of no tortious significance that the conviction was publicized in terms of automobile accident fraud when it was in fact conspiracy to commit mail fraud. The U. S. Fifth Circuit in its affirmance of the appeal in the criminal case and the Louisiana Supreme Court in its disbarment proceedings, both referred repeatedly to the faked accidents and the substantive proof of Hamilton's knowing complicity in the scheme. The mailing charged in the indictment arose out of the staged collisions and was but the peg upon which the conspiracy was hung. The faked accidents formed the basis of the conviction for conspiracy to commit mail fraud. Proof of complicity in the faked accidents was an essential element of the conspiracy, without which there would not have been a conviction. It is meaningfully true in both law and legal circles that plaintiff was convicted of faking auto accidents to defraud insurance companies."
We agree and adopt the trial court's written reasons for judgment as the opinion of this court. It is well settled that truth, or substantial truth, is a defense to a defamation suit. Rosen v. Capital City Press, 314 So.2d 511 (La.App. 1st Cir. 1975).
For the above and foregoing reasons the judgment of the trial court is affirmed. All costs of these proceedings are to be paid by appellant.
AFFIRMED.
NOTES
[1] Appellant's application for rehearing was denied on April 7, 1977. 343 So.2d 985, 993 (La. 1977).
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610 N.E.2d 738 (1993)
242 Ill. App.3d 697
182 Ill.Dec. 869
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Jasper C. OFOMA, Defendant-Appellant.
No. 4-92-0496.
Appellate Court of Illinois, Fourth District.
Argued February 16, 1993.
Decided March 18, 1993.
*739 William A. Yoder (argued), Ostling, Ensign, Barry & Glenn, Bloomington, for defendant-appellant.
*740 Charles G. Reynard, State's Atty., Bloomington, Norbert J. Goetten, Director State's Attys. Appellate Prosecutor, Robert J. Biderman, Deputy Director, Jeffrey K. Davison, Staff Atty., for plaintiff-appellee.
Justice McCULLOUGH delivered the opinion of the court:
Following a jury trial conducted in the circuit court of McLean County, the defendant Jasper Ofoma was found guilty of the unlawful possession of more than 30 grams, but not more than 500 grams, of a substance containing cannabis. (Ill.Rev. Stat.1989, ch. 56½, par. 704(d).) Defendant was subsequently sentenced to serve a term of probation of 30 months, conditioned on serving four months imprisonment in the county jail, with credit for two days previously served, and paying a street-value fine of $1,500, a $10 monthly probation service fee, $50 as a drug-testing fee, and $245 as costs.
On appeal, defendant raises the following issues: (1) whether the indictment for unlawful possession of cannabis was deficient for failing to include the language "other than as authorized by the Cannabis Control Act" (Act) (see Ill.Rev.Stat.1989, ch. 56½, par. 711); (2) whether he was denied due process because the State failed to disclose intelligence reports in discovery and the trial court refused to order the State to disclose these documents following an in camera inspection; and (3) whether his conviction for unlawful possession of cannabis must be reversed because the subject cannabis was improperly admitted into evidence for the reason that the State failed to lay a proper chain of custody. We affirm.
Count II of the indictment alleged as follows:
"The Grand Jury of McLean County, Illinois, charges that Jaspar C. Ofoma on or about the 8th day of October, 1991, at Bloomington in the County of McLean, State of Illinois, committed the offense of Unlawful Possession of Cannabis in that he knowingly possessed more than 30 grams but not more than 500 grams of a substance containing cannabis in violation of Section 704(d), Chapter 56½, Illinois Revised Statutes (1989). A class 4 Felony."
Defendant points out that section 11 of the Act (Ill.Rev.Stat.1989, ch. 56½, par. 711) provides for the legal possession of cannabis by persons engaged in research. Defendant argues that, because he could have been such a person, count II of the indictment is defective for failing to allege that he possessed the cannabis "other than as authorized by the Cannabis Control Act." This challenge to the sufficiency of the indictment, however, is raised for the first time on appeal.
A criminal charge contained in an indictment may be challenged for the first time on appeal. People v. Pujoue (1975), 61 Ill.2d 335, 339, 335 N.E.2d 437, 440.
"When attacked for the first time on appeal a complaint is sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct. People v. Grant, 57 Ill.2d 264 [312 N.E.2d 276]; People v. Harvey, 53 Ill.2d 585 [294 N.E.2d 269]." (Pujoue, 61 Ill.2d at 339, 335 N.E.2d at 440.)
In order to prevail on a challenge to the sufficiency of the indictment raised for the first time on appeal, the defendant must show that the defect actually prejudiced him in the preparation of his defense. (People v. Thingvold (1991), 145 Ill.2d 441, 448, 164 Ill.Dec. 877, 879, 584 N.E.2d 89, 91.) Defendant has failed to show such prejudice and the charge is clearly sufficient to allow defendant to pursue his defense and to prevent him from being placed in double jeopardy for the same conduct. This issue provides no basis for overturning defendant's conviction.
The next issue is whether defendant was denied his right to due process because the State did not disclose intelligence reports from the Illinois State Police, Division of Criminal Investigations (DCI), to him in discovery, pursuant to Supreme Court Rules 412(c) and 415(b) (134 Ill.2d Rules 412(c), 415(b)). Defendant also argues the *741 trial court erred by refusing to order the State to provide these reports following an in camera inspection.
Defendant was charged by indictment on October 31, 1991. The defendant was arraigned on December 27,1991. The State's Attorney and the defendant both filed discovery motions and an arraignment order was entered setting discovery compliance dates for the State as January 10, 1992, and for the defense as January 24, 1992. Discovery answers were filed by defendant and the State. The State's answer to defendant's motion for discovery disclosed prior intelligence information was available to officers investigating this case. No additional disclosures regarding intelligence information were made by the State prior to trial on May 6, 1992.
This case involved defendant receiving a package of cannabis delivered through the United States postal service. Rod Damery, a United States postal inspector assigned to narcotics investigation, revealed on cross-examination that he had heard of the name Jasper Ofoma before defendant came to the post office and signed the receipt for the package because of "some intelligence information." On defendant's motion, the jury was directed by the judge to disregard the witness' statement.
Following Damery's testimony, defendant moved for a mistrial based on the failure of the State to provide the intelligence information. Defense counsel stated he specifically asked the State to produce this material and did not receive it. The assistant State's Attorney admitted he had requested the information from DCI, but was told it could not be provided without a court order. The assistant State's Attorney further admitted he did nothing more than inquire about the information. He explained he understood it did not involve the charge in this case, but admitted he did not know that. The judge told the prosecutor to get the information during the lunch hour and produce it in court. The trial judge reserved ruling on the motion for mistrial, indicating an agreement with the State that defendant had "opened the door" during cross-examination.
The documents were presented for an in camera inspection and master sergeant Frank Charles Walter from DCI testified concerning the reports outside the presence of the jury. The assistant State's Attorney represented to the court that the documents contained the identity of an individual whose identity should not be disclosed for reasons which included the individual's safety. The three reports presented at the first in camera inspection all related to the same confidential source. The reports indicated the source provided information and was paid therefor. Walter admitted that the second payment was made after defendant's arrest because the confidential source thought he deserved to be paid more.
In an interview conducted August 2, 1991, questions were posed of this individual concerning defendant. The informant stated he would reveal no information unless he could be guaranteed his identity would be concealed and he would be paid. In addition to providing information about defendant, the individual provided information on other subjects. The report of August 2, 1991, did not contain information about defendant, but only the informant's requests for confidentiality and payment. After examination by the court, Walter went back to the DCI office to attempt to determine if there were any other records which would explain how DCI would have become aware of defendant as a person who would be a subject for investigation.
Subsequently, Walter returned with a document dated October 16, 1991, in which Sergeant Michael Bernardini reported a telephone conversation with the confidential source relating that defendant was awaiting a shipment of cannabis from Nigeria. This report was authored on October 16, 1991, and concerned a telephone conversation on that date. This occurred after the events which gave rise to the case at bar. There was also a report which indicated a file was opened after Bernardini was informed on August 8, 1991, that a package would be sent to post office box 491, Normal, Illinois. The source of the information was not included in the report. *742 Subsequent to that, the post office box was identified as being registered to defendant. A photocopy of the application for the post office box was included with the report, and the application had defendant's address on it. Another report dated August 9, 1991, indicated defendant and another individual left a residence at 1217 Orchard in Bloomington to travel to Chicago to pick up illicit drugs. Subsequently, Damery was questioned by the trial judge outside the presence of the jury and stated he did not recall any notification from DCI to be on the lookout for a package. Damery further testified the package was simply observed in the mail stream and opened in New York. After reviewing all the documents and considering Walter's testimony and arguments of counsel, the trial judge ruled that these reports did not contain "Brady material that is required to be disclosed to" defendant. This ruling remained in effect following the testimony of Damery.
In Brady v. Maryland (1963), 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218, the United States Supreme Court stated as follows:
"We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."
In conformity with this pronouncement, the Illinois Supreme Court has provided in Rule 412(c) as follows:
"Except as is otherwise provided in these rules as to protective orders, the State shall disclose to defense counsel any material or information within its possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce his punishment therefor." (134 Ill.2d R. 412(c).)
There is a continuing duty to disclose such evidence. 134 Ill.2d Rule 415(b).
The rule in Brady can be applied in three quite different situations, to wit: (1) where the undisclosed evidence demonstrates that the prosecution's case includes perjured testimony, (2) where, as in Brady, there was a request for specific evidence, and (3) where the request is a general one for "Brady material" or the State fails to disclose sua sponte. (United States v. Agurs (1976), 427 U.S. 97, 103-07, 96 S.Ct. 2392, 2397-99, 49 L.Ed.2d 342, 349-52.) The second situation, illustrated by the Brady case, is most similar to the case at bar. In Brady, extrajudicial statements by an accomplice were suppressed. Noting the specific request and the materiality of the statement, it was held Brady was deprived of due process. (Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218.) However, interpreting the State court as having ruled the confession to be inadmissible on the issue of guilt and innocence, the entire trial was not lacking in due process, and so only a new trial on the issue of punishment was necessary as that was the only issue to which the suppressed statement was "material." Brady, 373 U.S. at 89-91, 83 S.Ct. at 1197-98, 10 L.Ed.2d at 219-20.
In Agurs, the term "materiality" as it applies to a Brady situation was discussed as follows:
"A fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial.
* * * * * *
The test of materiality in a case like Brady in which specific information has been requested by the defense is not necessarily the same as in a case in which no such request has been made." (Agurs, 427 U.S. at 104-06, 96 S.Ct. at 2398-99, 49 L.Ed.2d at 350-51.)
As defendant points out, the court in Agurs did state that there is seldom an excuse for the State to fail to respond to a specific relevant request for discovery. (Agurs, 427 U.S. at 106, 96 S.Ct. at 2399, 49 L.Ed.2d at 351.) However, Agurs should not be interpreted as suggesting that defendant may dispense with a showing of the materiality of the suppressed information in order to obtain reversal of the conviction.
*743 Defendant contends that prior notice of the DCI investigation material would have helped him discredit the evidence and changed the outcome of the trial. Defendant complains he was not able to cross-examine the confidential source or undermine the credibility of the confidential source, particularly in light of the fact the source was paid for supplying the information.
If an informant is not to be called as a State witness and his identity is a prosecutorial secret and the defendant's constitutional rights will not be infringed, the claimant's identity need not be disclosed. (People v. Woods (1990), 139 Ill.2d 369, 377, 152 Ill.Dec. 110, 115, 565 N.E.2d 643, 648.) However, the propriety of disclosing the informant's identity must be decided on a case-by-case basis, balancing the public interest in protecting informants against the right of the accused to prepare a defense. Woods, 139 Ill.2d at 378, 152 Ill.Dec. at 115, 565 N.E.2d at 648.
In this case, the informant was not a witness. Nor has defendant demonstrated how the challenging of the credibility of the informant would have affected a case in which defendant was identified by several witnesses as having been the person who picked up a package at the post office and signed for it. The most defendant could have done is challenge the truth of the information provided to the investigators by the source. Even if the informant was an absolute liar, that fact would not be of consequence to a determination of whether defendant committed the offense in the case at bar. Defendant also does not argue on appeal that the information was material to the sentencing hearing. Therefore, defendant was not deprived of due process in this case, although the State's failure to comply with requested discovery ought not be condoned.
For the same reasons, the trial court did not commit an abuse of discretion in refusing to order sanctions. Defendant argues the trial court erred in failing to order the State to produce the investigation reports to defendant and by failing to give defendant a continuance to investigate the reports. However, the failure to give defendant a continuance was not raised in the post-trial motion, although defendant did raise therein the issues of the failure to order the State to disclose and the failure to grant a mistrial. Therefore, the only issue raised on appeal which was properly preserved for review was whether the trial court erred by failing to order the State to disclose the documents following the in camera inspection. People v. Enoch (1988), 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 271, 522 N.E.2d 1124, 1130.
When a discovery rule has been violated, the trial court has the discretion to impose sanctions. (People v. Manzo (1989), 183 Ill.App.3d 552, 557-58, 131 Ill. Dec.884, 887-88, 539 N.E.2d 237, 240-41; 134 Ill.2d R. 415(g).) Although the trial court's decision is given great deference, if the defendant has been prejudiced by the discovery violation and the trial court fails to eliminate the prejudice, a reviewing court will find an abuse of discretion. (People v. Weaver (1982), 92 Ill.2d 545, 559, 65 Ill.Dec. 944, 949, 442 N.E.2d 255, 260.) In the absence of prejudice to defendant, the failure to issue a sanction is not an abuse of discretion.
The final issue to be considered is whether the defendant's conviction for unlawful possession of cannabis must be reversed because the subject cannabis was improperly admitted into evidence for the reason that the State failed to lay a proper chain of custody. A ruling on the admission of evidence will not be disturbed on appeal in the absence of an abuse of discretion by the trial court and a showing of prejudice to defendant. People v. Arbo (1991), 213 Ill.App.3d 828, 833, 157 Ill.Dec. 348, 351, 572 N.E.2d 417, 420.
Damery testified he was contacted by the United States Customs Service concerning a package containing cannabis. He determined the package was addressed to Mary Ann Radcliff, 1217 Orchard, apartment 2, Bloomington, Illinois. Damery received the package from customs in a locked, registry mail pouch on October 4,1991. In the pouch was a large box, with a return address from Nigeria. The box contained a *744 cylindrical object that was taped with cloth tape. Three corners of the package had been cut open. Inside the cylindrical object was a green leafy substance that field tested positive for cannabis. Damery then sent a letter addressed to Radcliff informing the addressee that the postal service had received a foreign mail package and that unsuccessful attempts had been made to deliver the package. The letter further advised that the postal service was holding the package for delivery and provided a phone number in St. Louis for the addressee to call. The letter was sent October 4, 1991.
Damery received a telephone call on October 7, 1991, concerning the package. The caller identified himself as Mike Radcliff and spoke with an accent and in broken English. Damery informed the caller that the package would be sent to Bloomington for delivery the next day. The caller requested delivery after 4 p.m., and Damery agreed to have a special delivery carrier deliver to 1217 Orchard after 4 p.m. When the package was not delivered, the same person called Damery on October 8, 1991. The caller stated he had been informed by the Bloomington post office that they did not have the package.
Damery then went to Bloomington, met with DCI agents to set up the controlled delivery, and proceeded to the Bloomington post office, positioning himself inside the claims office with the package. Defendant approached postal clerk Tim Adams and displayed identification. Adams retrieved the package from Damery and had defendant sign a receipt for the package. Adams delivered the package to defendant. As defendant left the post office, he was arrested in the parking lot.
Defendant does not contest the chain of custody from the time Damery received the package from customs. However, defendant argues the United States Customs Service seized this package prior to that time and that the State has failed to prove the chain of custody between the seizure by customs and the receipt of the package by Damery.
When an actual object which had a direct part in an incident is produced at trial, it is referred to as "real evidence." (R. Hunter, Trial Handbook for Illinois Lawyers § 49.1, at 695 (5th ed. 1983).) "The admission of real evidence is subject to showing that its condition is essentially the same as it was at the time of the transaction in question." (Emphasis added.) (R. Hunter, Trial Handbook for Illinois Lawyers § 49.2, at 696 (5th ed. 1983); see also People v. Terry (1991), 211 Ill. App.3d 968, 972-73, 156 Ill.Dec. 310, 312, 570 N.E.2d 786, 788.) There are two ways to establish that the object's condition is essentially the same at the time of the transaction. If the object is unique and readily identifiable and impervious to change, the item may be admitted on the unimpeached testimony of a witness that the object is the one in question and is substantially unchanged. People v. Winters (1981), 97 Ill.App.3d 288, 289, 52 Ill. Dec. 763, 765, 422 N.E.2d 972, 974.
The second way of establishing identity of the object and that it was unchanged is through proof of a chain of custody. This method is to be utilized if the object is not readily identifiable or is susceptible to alteration as a result of tampering or contamination. (Winters, 97 Ill.App.3d at 289-90, 52 Ill.Dec. at 765, 422 N.E.2d at 974.) It is not required that both methods of identification be utilized. People v. Stewart (1984), 105 Ill.2d 22, 59, 85 Ill.Dec. 241, 259, 473 N.E.2d 840, 858.
Defendant argues that there is a missing link in the chain of custody in this case. In essence, his point is that the package could have been tampered with prior to Damery receiving it. In his reply brief, defendant complains that all of the cases cited by the State involved situations where the object sought to be admitted was seized at or near the time of the arrest. However, the whole purpose of introducing the evidence and establishing the chain of custody is to connect the object to the defendant and the crime. (People v. Maurice (1964), 31 Ill.2d 456, 458, 202 N.E.2d 480, 481; People v. Tribett (1981), 98 Ill.App.3d 663, 673, 53 Ill.Dec. 897, 904, 424 N.E.2d 688, 695.) In this case, the crime charged was possession *745 on October 8, 1991. There was no need to establish a connection between defendant and the package when it left Nigeria or when customs personnel intercepted it in New York. The State need only establish a connection between defendant and the package on October 8, 1991, which defendant concedes was properly done.
If defendant is suggesting that the package may have been tampered with before Damery received it and, therefore, that the State has failed to prove that defendant knew it contained cannabis, that element would not be established by a chain of custody. He could still argue he did not know what was in the package. However, that is a different issue than the one raised on appeal.
For the foregoing reasons, the judgment of the circuit court of McLean County is affirmed.
Affirmed.
COOK and LUND, JJ., concur.
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Cite as 2014 Ark. App. 376
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-13-117
Opinion Delivered June 18, 2014
SEIMOND EVANS
APPELLANT APPEAL FROM THE UNION
COUNTY CIRCUIT COURT
[NO. CR-2010-213-1-1]
V.
HONORABLE HAMILTON H.
SINGLETON, JUDGE
STATE OF ARKANSAS AFFIRMED; MOTION TO
APPELLEE WITHDRAW GRANTED
JOHN MAUZY PITTMAN, Judge
Seimond Evans appeals from an order revoking his probation and sentencing him to
ten years in the Arkansas Department of Correction. Pursuant to Anders v. California, 386
U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(k), appellant’s attorney has filed a
motion to be relieved as counsel, stating that there is no merit to the appeal. The motion
is accompanied by an abstract and addendum of the proceedings below and a brief in which
counsel asserts that there is nothing in the record that would support an appeal.1 The clerk
of this court served appellant with a copy of his counsel’s brief and notified him of his right
to file a pro se statement of points for reversal within thirty days. Appellant has filed no such
statement.
1
The record has been supplemented, and the abstract, brief, and addendum have been
corrected as directed in Evans v. State, 2014 Ark. App. 22.
Cite as 2014 Ark. App. 376
From our review of the record and the brief presented to us, we find compliance with
Rule 4-3(k) and that the appeal is without merit. Accordingly, counsel’s motion to
withdraw is granted, and the revocation order is affirmed.
Affirmed; motion to withdraw granted.
GLADWIN, C.J., and WHITEAKER, J., agree.
N. Mark Klappenbach, for appellant.
No response.
2
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282 S.W.3d 885 (2009)
Cornelius DUPREE, Movant/Appellant,
v.
STATE of Missouri, Respondent.
No. ED 91439.
Missouri Court of Appeals, Eastern District, Division Four.
May 12, 2009.
Gwenda R. Robinson, District Defender, St. Louis, MO, for Appellant.
Chris Koster, Attorney General, Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for Respondent.
Before KATHIANNE KNAUP CRANE, P.J., and MARY K. HOFF, J., and KENNETH M. ROMINES, J.
Prior report: 166 S.W.3d 638.
ORDER
PER CURIAM.
Cornelius Dupree (Movant) appeals from the denial of a motion to vacate judgment and sentence under Rule 29.15 following an evidentiary hearing. The convictions sought to be vacated were for murder in the first degree, Section 565.020, RSMo 2000,[1] and armed criminal action, Section 571.015, for which Movant was sentenced to concurrent terms of life imprisonment without the possibility of probation and parole for the murder count and twenty-five years imprisonment for the armed criminal action count. On appeal, Movant argues the motion court erred in denying his motion because: (1) appellate counsel was ineffective for failing to raise on direct appeal the exclusion of testimony from the medical examiner that Victim had PCP in his system, and; (2) trial counsel was ineffective for failing to call Ife Williams (Williams) to testify because her testimony would have supported Movant's claim of self-defense. We affirm.
We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claim of error to be without merit. An extended opinion would have no precedential value or serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).
NOTES
[1] Unless otherwise indicated, all further statutory references are to RSMo 2000.
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333 S.W.2d 904 (1960)
ARKANSAS STATE HIGHWAY COMMISSION, Appellant,
v.
UNION PLANTERS NATIONAL BANK, Trustee Under the Will of D. B. Woollard et al., Appellees.
No. 5-2004.
Supreme Court of Arkansas.
March 28, 1960.
Rehearing Denied May 2, 1960.
*905 W. R. Thrasher and Bill B. Demmer, Little Rock, for appellant.
Hale & Fogleman, West Memphis, for appellees.
GEORGE ROSE SMITH, Justice.
This is an eminent domain proceeding by which the State Highway Commission seeks to condemn the necessary property rights to enable it to convert an existing highway across the appellees' farm lands into a controlled-access facility. See Act 383 of 1953; Ark.Stats. 1947, Title 76, Ch. *906 22. In asking the jury for an award of substantial damages the landowners relied mainly upon the fact that their plantation will be effectively cut in two, lengthwise, by the new thoroughfare, since they will be prohibited from crossing it at any point along its three-mile passage over their property. The jury fixed the appellees' compensation at $75,250. In seeking a reversal the Commission's principal contention is that the landowners' right to cross the public right of way had already been taken and consequently the loss of that right is not a compensable element of damage in this case.
The background facts are not in dispute. The appellees' land may be referred to as the Woollard plantation. It contains 2,800 acres and is an irregularly shaped tract whose greatest dimension is its length north and south. Prior to 1952 the land was not traversed by any national highway. In that year the State Highway Commission relocated a portion of U. S. Highway 61 and for that purpose condemned an easement, 250 feet wide, running the length of the Woollard property. The landowners protested that the easement was unnecessarily wide, but we upheld the Commission. Woollard v. Arkansas State Highway Comm., 220 Ark. 731, 249 S.W.2d 564. That case was later settled without a trial, and that is the taking now relied upon by the Commission to defeat the principal factor in the appellees' damages.
A controlled-access facility may be broadly described as a superhighway which motorists can enter and leave only at designated interchanges, usually some miles apart. The 1952 condemnation proceeding was not instituted for the purpose of acquiring a right of way for a controlled-access highway; indeed, Arkansas then had no statute authorizing the creation of such a facility. At that time the Commission planned to construct, and later did construct, a conventional two-lane highway upon the easement it was acquiring. The unusually wide right of way was meant to allow the Commission to add another two lanes sometime in the future, thus providing the customary type of divided thoroughfare with two lanes for northbound traffic and two for southbound traffic.
The proof shows that the original construction pursuant to the 1952 taking did not seriously interfere with the operation of the Woollard plantation. Within the limits of the property the new highway, U. S. No. 61, was crossed at grade by four county roads and by at least four private farm roads. The owners continued to conduct their enterprise as a unit. There is ample proof that the relocation of Highway 61 did not in itself substantially lower the value of the Woollard lands.
Later on, however, this part of Highway 61 was taken into the new interstate highway system. The Highway Commission then filed the present proceeding against the Woollards and others, to the end that the existing highway may be converted into a controlled-access facility. The Commission seeks, first, to acquire the fee-simple title that underlies its existing easement, because the statute requires that the State own a limited-access facility in fee. Ark. Stats. § 76-2205. Secondly, the Commission is condemning a little more of the Woollard land, about an acre, which the jury valued at $250. Finally, it was stipulated that the Commission's declaration of taking is "for the acquisition and control of access rights of land adjacent and contiguous to the original highway right of way."
The controlled-access facility, when completed, will consist of four parallel two-lane paved highways. The two double highways in the middle will be one-way routes, one carrying northbound through traffic and the other carrying southbound through traffic. The outer highways will be two-way service roads, carrying local traffic and affording access to the inner lanes only at the interchanges.
No interchange is to be built within the limits of the Woollard lands. For these landowners and their employees to cross *907 from one side of the plantation to the other they must travel the service roads to and from the nearest interchanges, one being an overpass about half a mile north of the Woollard property and the other being an overpass about equally far south. This bisecting of the plantation will prevent its being operated in the future as a single unit. Additional headquarters must be built, additional machinery must be purchased, and other additional expense must be incurred in operating as two farms what was formerly one undertaking. There is an abundance of substantial testimony, given by qualified expert witnesses, that the Woollards' total severance damages will materially exceed the jury's verdict. Indeed, we emphasize the fact that nowhere in the Highway Commission's brief does it question the amount of the award if the landowners' inability to cross the highway is a compensable element of damage. What the Commission contends is that the jury should not have been permitted to take this severance damage into account at all.
The Commission's argument may conveniently be considered in two separate aspects. First, was the Woollards' right to cross from one side of their property to the other taken by eminent domain in 1952? Secondly, if not, can that right be taken in the present proceeding through an exercise of the police power, without compensation to the landowners?
On the first point we think it clear that the Woollards' right to cross the public easement was not within the issues of the 1952 condemnation. If that proceeding had been intended to bisect the Woollard plantation as effectively as if a high stone wall had been erected down the center of the property it cannot be doubted that the landowners would have been entitled to commensurate severance damages. St. Louis, A. & T. Railroad Co. v. Anderson, 39 Ark. 167; Ashley, Drew & N. Ry. Co. v. Gulledge, 121 Ark. 143, 180 S.W. 222; Arkansas State Highway Comm. v. Speck, Ark., 324 S.W.2d 796.
In 1952, however, the Woollards had no reason to anticipate that their commonplace privilege of crossing the State's easement might someday be destroyed by the installation of a controlled-access facility. Our legislature had not then adopted a statute permitting the creation of limited-access highways. We doubt if in 1952 there was anywhere in the entire state a stretch of rural public road as much as a quarter of a mile long, much less three miles long, upon which crossings were prohibited.
The Highway Commission itself has often recognized that after a condemnation an abutting owner whose land has been cut in two still has a right to cross the road. This recognition is quite apparent in those cases in which the Commission has sought to mitigate its liability for severance damages by voluntarily providing the landowner with a means of crossing the new highway. For example, in Arkansas State Highway Comm. v. Byars, 221 Ark. 845, 256 S.W.2d 738, 739, where a relocation of Highway 64 divided the land into two tracts, the opinion observed: "The Highway Department * * * agrees to build an underpass under the right-of-way whereby livestock can be moved from the severed 55 acres south of new 64." In a similar situation we remarked in Arkansas State Highway Comm. v. Dupree, 228 Ark. 1032, 311 S.W.2d 791, 793: "According to the undisputed evidence the Highway Commission will provide a grade crossing."
It is plain enough that in the Byars case the Commission would not have been permitted to reduce its liability by providing an underpass and then later on contend that it had already acquired by eminent domain (as distinguished from the police power) the right to close that underpass. So in the Woollard case. In 1952 the Woollards could not have successfully asserted their present claim, for there were available after the taking four public crossings and at least that many private crossings. In negotiating with the Woollards the Highway Commission was entitled to rely upon those crossings to reduce *908 its liability to the landowners. It cannot now take the inconsistent position that the Woollards' right to cross the highway was bought and paid for in 1952.
We may add the observation that, had the present claim been asserted in the 1952 proceeding, the claim not only would have been disallowed but also should have been disallowed. There was then no substantial basis for supposing that the Woollards' right to cross the public easement would ever be disputed. If they had been entitled to recover compensation upon the theory that their plantation was being effectively cut in two by a conventional highway, the judgment in their favor would have been a precedent exposing the State to similar speculative and even fictitious claims in every case in which the Commission condemned a right of way across a tract of land. It seems clear that such a holding would be neither legally sound nor in the public interest.
The second aspect of the Commission's argument is more perplexing. Here it is contended that after the State has acquired a highway easement, and especially one 250 feet wide, it is entitled to put into effect, without compensating an owner whose land bestrides the highway, a traffic regulation which prevents any person from crossing the public right of way except at specified interchanges.
For the most part the authorities cited by the Commission do not reach the present situation, for they involve land lying entirely on one side of the street or highway. It is settled that in that situation the public authorities may erect a median strip down the center of the thoroughfare or may in some other manner prohibit left turns or two-way traffic without compensating the abutting landowner for his inconvenience or for the loss of business that results from the change in the flow of traffic. City of Fort Smith v. Van Zandt, 197 Ark. 91, 122 S.W.2d 187; Holman v. State, 97 Cal.App.2d 237, 217 P.2d 448; People v. Sayig, 101 Cal. App.2d 890, 226 P.2d 702; Dougherty County v. Hornsby, 213 Ga. 114, 97 S. E.2d 300; Langley Shopping Center v. State Roads Comm., 213 Md. 230, 131 A. 2d 690; Turner v. State Roads Comm., 213 Md. 428, 132 A.2d 455; Muse v. Mississippi State Highway Comm., 233 Miss. 694, 103 So.2d 839; Brady v. Smith, 139 W.Va. 259, 79 S.E.2d 851. This general principle is also being applied by us in another case decided today, Arkansas State Highway Comm. v. Bingham, Ark., 333 S.W.2d 728, wherein we are holding that a loss attributable merely to the diversion of traffic is not compensable. We find three cases involving tracts on opposite sides of the highway, but these decisions are readily distinguishable on the facts and need not be discussed. Iowa State Highway Comm. v. Smith, 248 Iowa 869, 82 N. W.2d 755; Warren v. Iowa State Highway Comm., Iowa, 93 N.W.2d 60; Carazalla v. State, 269 Wis. 593, 70 N.W.2d 208, vacated on rehearing, 270 Wis. 593, 71 N.W.2d 276.
It is quite apparent that the doctrine of the cases cited, involving land on only one side of the highway, would have to be materially extended to reach the situation now before us. In that event it would be necessary to determine whether the exercise of the police power was being carried so far as to amount to a taking of private property. As the court pointed out in the leading case of Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 160, 67 L.Ed 322: "The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. * * * We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change."
We do not reach this question, however, for we are convinced that in the case at bar the State is actually exerting its power *909 of eminent domain. It thus becomes unnecessary for us to decide whether the same result might constitutionally be attained through the exercise of the police power alone, without payment to the landowner.
To begin with, the controlled-access highway statute contemplates a taking, for it specifically provides that the State's right of way must be owned in fee simple. Ark.Stats. § 76-2205. Of course the legislature knew that an existing easement could not be enlarged to a fee by means of a mere police regulation, and there is no good reason to suppose that the legislature meant to divide the transaction into two steps, one involving the police power and the other the power of eminent domain.
The particular situation now before us will evidently arise very infrequently in Arkansas, for only in rare instances will the State own a highway easement that is sufficiently wide to accommodate a controlled-access facility and that is also so located as to be suitable for that use. In the usual case the Highway Commission will be compelled to condemn a new right of way for this type of highway, and in such an original proceeding it goes without saying that a landowner whose land is cut in two will be entitled to compensation for his loss. The fact that the legislature did not authorize the Highway Commission to convert an existing easement into a controlled-access facility even when that could be accomplished demonstrates that some importance was attached to the acquisition of the fee simple.
In the second place, when the arguments on each side are fairly well balanced considerations of equity and justice are entitled to great weight. Here the equities undeniably lie with the landowners. It is nowhere denied that they have suffered an actual pecuniary loss at least equal to the jury's award. As we have seen, they could not have asserted their present claim in 1952, for the division of their property was not then contemplated. If their cause of action is denied they will have been deprived of any opportunity to assert a just claim. Yet all that has happened in the meantime has been the passage of federal laws creating an interstate system of limited-access highways. Public Law 627, June 29, 1956, 70 Stat. at Large 374; 23 U.S.C.A. § 111. If the Woollards' land had been taken after the adoption of the federal law instead of before its passage their damages would unquestionably have been paid. In the absence of a clear expression of the legislative intent we are unwilling to read into our controlled-access highway statute a requirement that these particular appellees must bear a unique burden, a burden that other landowners will escape simply because their property happened to be taken at a more favorable moment.
The Commission's remaining points do not require extended discussion. We see no real objection to testimony by which an expert witness gave his "personal" opinion about land values; the opinion of any expert is of course personal to that witness. Nor do we think the Commission was prejudiced by the fact that Mr. Woollard mentioned in the course of his testimony that the county had discontinued its maintenance of a bridge.
There is merit, however, in the appellant's contention that the fees of the appellees' expert witnesses, amounting to $1,280, should not have been taxed as costs in the case. The allowance of costs is purely statutory, and in the absence of a statute the fees of expert witnesses cannot be charged against the losing party. Arkansas State Game & Fish Comm. v. Kizer, 222 Ark. 673, 262 S.W.2d 265, 38 A.L.R.2d 1372. This modification of the judgment amounts to a substantial recovery and thus entitles the appellant to recover its costs of appeal. Supreme Court Rule 24.
Modified and affirmed.
*910 McFADDIN and JOHNSON, JJ., concur.
HOLT and ROBINSON, JJ., dissent.
ROBINSON, Justice (dissenting).
The majority does not cite a single authority that sustains the view expressed, although there is an abundance of literature and cases on the subject involved, including splendid Law Review articles such as: Cunnyngham, The Limited-Access Highway from a Lawyer's Viewpoint, 13 Mo.L.Rev. 19; Controlled Access Highways in Iowa, 43 Iowa L.Rev. 258; Covey, Control of Highway Access, 38 Nebr.L. Rev. 407; Clarke, The Limited-Access Highway, 27 Wash.L.Rev. 111; Covey, Highway Protection Through Control of Access and Roadside Development, 1959 Wisc.L.Rev. 367. None of the Law Review articles supports the position taken by the majority, and there are no cases sustaining that view.
In my opinion the only thing acquired by the State in this action, in addition to the one acre valued at $250, is the fee in the right of way, in which the State already had a right of way easement. In a case of this kind the fee has a nominal value only. People v. Sayig, 101 Cal.App.2d 890, 226 P.2d 702. In 1952 Woollard was paid for the 250-foot right of way across his property. Woollard v. State of Ark. Highway Dept., 220 Ark. 731, 249 S.W.2d 564, 566. It will be seen from the decision in that case that there was taken into consideration, among other things, the fact that the Highway Department contemplated building a modern highway of such dimensions and character that Woollard would be precluded from crossing it at any place except the points designated and prepared by the Highway Department for that purpose. When the right of way was taken by the State, Woollard lost all interest in the land embraced within the right of way except the fee, which is of no practical value, and the right of access, and he still has access to the right of way. In the first Woollard case, this Court said: "Even though the Commission's existing commitment is to construct only a 24-foot two-lane highway, its plan for the future, when justified by available funds, is to build a second two-lane road, separated from the first by a parkway that will provide earth for the necessary fills and also promote the public safety by dividing the two arteries of traffic. By acquiring a sufficiently broad right-of-way in the first instance the Commission expects to avoid the expense that is incident to any attempt to enlarge a roadbed that has been hemmed in by the various commercial eestablishments that tend to spring up along the border of a public highway."
Woollard should not be compensated more than once for the taking of the right of way. In the case of Arkansas State Highway Commission v. Fox, Ark.1959, 322 S.W.2d 81, 83, this Court said: "Unquestionably a landowner is entitled to be fully compensated for his loss under the processes of eminent domain, however we have established methods by which a determination of `just compensation' is to be made. In a situation as the case at bar where there is a partial taking of a landowner's property we have established the rule that the measure of damages is the difference between the value of the whole land before the appropriation and the value of the portion remaining after the appropriation. Pulaski County v. Horton, 1955, 224 Ark. 864, 276 S.W.2d 706; Herndon v. Pulaski County, 1938, 196 Ark. 284, 117 S.W.2d 1051; Newport Levee District v. Price, 1921, 148 Ark. 122, 229 S.W. 12.
"In spelling out this rule we said in Little Rock, Mississippi River and Texas Railway Co. v. Allen, 1883, 41 Ark. 431: `The correct rule for measuring damages is to determine the value of the whole land without the railway at the time same was built, then find the value of the portion remaining after the railway is built, and the difference between the two estimates *911 will be the true compensation to which the party owning the land is entitled.'"
In the case of Keith v. Drainage Dist No. 7 of Poinsett County, 183 Ark. 384, 36 S.W.2d 59, the Court quoted with approval the rule laid down in Newgass v. Railway Co., 54 Ark. 140, 15 S.W. 188, that the value of private property taken for public use must be determined as of the date a petition for condemnation is filed. In the case at bar the petition was filed and the right of way was taken back in 1952. Every element that can fairly enter into the question of market value and which a business man of ordinary prudence would consider before purchasing property should also be considered by the jury in arriving at the value of the property before and after the taking. Pulaski County v. Horton, 224 Ark. 864, 276 S.W.2d 706. And in Little Rock, Mississippi River and Texas Railway Co. v. Allen, 41 Ark. 431, this Court said that the measure of damages for the right of way taken by a railroad company across a city or town lot is the difference between the value of the whole land without the road at the time it was built and the value of the portion remaining after it was built; and in estimating this value the jury should consider all present and prospective actual damages resulting to the owner from the prudent construction and operation of the road, the effect the road would have in decreasing the value of the land for gardening purposes, as well as inconveniences caused by embankment, excavations, ditches and obstruction to the free egress and ingress of the premises.
And in Little Rock & Ft. Smith Railroad Co. v. Greer, 77 Ark. 387, 96 S.W. 129, 133, the Court said: "It is a well-established rule of law that the owner of land taken for railroad purposes is entitled, before or at the time of the taking, to compensation for all damages, present and prospective, which he sustains by reason of the construction of the railroad. * * * Such damages include the value of that part of the land which is taken, as well as the damages consequent upon such taking to the residue. The doctrine invoked by appellant has its rationale in the presumption that, in the absence of proof to the contrary, the owner, who is entitled to such compensation, received same before or at the time his land was charged with the servitude; that this was considered and settled when the owner conveyed the land to the railroad, or when the railroad acquired its title by condemnation; * * *." [Emphasis supplied.] On rehearing Judge McCulloch said: "The principle is made clear in the original opinion that where a railroad corporation lawfully acquires a right of way over land, either by grant, prescription, or condemnation, such acquisition covers all damages, present and prospective, resulting to the owner whose land is invaded. This upon the theory that full compensation is allowed at the time, and can be recovered only once." [Emphasis supplied.] Thus, according to the law of this State, as heretofore announced by this Court, the presumption is that Woollard, the landowner, was paid full value for the right of way in 1952.
Of course, Woollard was damaged by the severance of his place, but that damage was paid for in 1952. In the case at bar the landowners are being allowed compensation on the theory that their plantation is being effectively cut in two. The answer to that theory is that it was cut in two by the first taking in 1952, when 98 acres were taken. The one acre taken at this time certainly does not cut the 2,800 acre plantation in two. In 1952 it was known that the highway would sever the plantation, and witnesses so testified in the first case, and it was shown that the kind of road to be constructed would prevent the crossing of the right of way except at points designated by the Highway Department. The fact that such a right of way would be constructed is pointed out in the first Woollard case above mentioned.
To sustain its view, the majority cites Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S.W.2d 738, and Arkansas State Highway Commission v. *912 Dupree, 228 Ark. 1032, 311 S.W.2d 791. But those two cases do not support the majority's contention. It is clearly recognized in those cases that the property owner had the right to recover damages for the severance of his property, and the question was whether the damages allowed in the trial court were excessive. It was pointed out in those two cases that the fact that the Highway Department was providing facilities for the property owners to cross the right of way had a tendency to mitigate the damages at that time, the time of the taking. There is nothing in either of those cases which indicates that the property owner can come into court several years after the taking and recover damages because he is unable to cross the highway at any place he might wish to cross it. The majority mentions that county roads crossing the right of way will be closed. But this Court has held time and again that a property owner cannot recover damages because a right of way has been changed or closed. See Risser v. City of Little Rock, 225 Ark. 318, 281 S.W.2d 949, and cases cited therein.
By purchasing the 250-foot right of way across the Woollard land in 1952, the State acquired the valid right to construct four strips of concrete pavement, or any other number of such strips, on such right of way. In the case of Muse v. Mississippi State Highway Commission, 233 Miss. 694, 103 So.2d 839, 847, the court said: "Land condemned for highway purposes without limitation as to surface use is at all times under the control of the highway authorities, which may make such use of the land as may be required; and the abutting landowner's right of access and user are subject to the right of the state under the police power to regulate and control the traffic on the highway in the interest of safety, and to restrict in a reasonable manner entrances from abutting property." In Jones Beach Blvd. Estate v. Moses, 268 N.Y. 362, 197 N.E. 313, 315, the court, in discussing the rights of an abutting landowner to an easement of access in a public highway and the right of the state to regulate and control traffic on the public highways, said: "The rights of an abutter are subject to the right of the state to regulate and control the public highways for the benefit of the traveling public. Sauer v. City of New York, 180 N.Y. 27, 72 N.E. 579, 70 L.R.A. 717; Ryan v. Preston, 59 App.Div. 97, 69 N.Y.S. 100. See Perlmutter v. Greene, 259 N.Y. 327, 182 N.E. 5 [81 A.L.R. 1543]; Kane v. New York El. R. Co., 125 N.Y. 164, 176, 26 N.E. 278, 11 L.R.A. 640. Cf. Miller v. State, 229 App. Div. 423, 243 N.Y.S. 212; Farrell v. Rose, 253 N.Y. 73, 170 N.E. 498, 68 A.L.R. 1505. Although the abutting owner may be inconvenienced by a regulation, if it is reasonably adapted to benefit the traveling public, he has no remedy unless given one by some express statute."
The State has the authority to regulate the traffic and prevent Woollard or anyone else from moving automobiles, trucks and heavy farm implements across the right of way except at certain places where the access is controlled in order to protect the traveling public from the hazards that would be present if such equipment were permitted to cross at just any place, day or night. The abutter's right of access is subject to the superior public interest. In the Wisconsin case of Neenah v. Krueger, 206 Wis. 473, 240 N.W. 402, 404, the court said: "However, this right [the abutter's right of access] is in common with most other rights subject to reasonable regulations in the public interest and for the promotion of public convenience and safety."
The State has the right under the easement obtained in 1952 to build a modern highway and control the traffic thereon and did not acquire any additional rights in that respect by virtue of acquiring the fee in 1959. Ark.Stat. § 76-201.5 provides: "The Commission [Highway Commission] shall be vested with the following powers and shall have the following duties: * * (m) To adopt reasonable rules and regulations from time to time for the protection of, and covering, traffic on and in the use *913 of the State Highway System and in controlling use of, and access to, the highways * * *." Under this statute the Commission can certainly adopt rules against left-hand turns, U-turns, and crossing the highway except at designated points. In addition, by virtue of its police power the State has such authority. Carazalla v. State of Wisconsin, 71 N.W.2d 276. In Muse v. Mississippi State Highway Commission, 103 So.2d 839, 847, the court said: "As the problem of regulating motor vehicle traffic on the highways has become more and more complex, new standards of design for highway construction have been adopted by the highway authorities to reduce the hazards of travel and expedite the flow of traffic. * * * Multiple lane highways have been constructed in all parts of the country; and median strips or neutral zones between lanes of traffic on multiple lane highways, with interchanges or crossovers at reasonable intervals to enable motorists to pass from one traffic lane to another, have been authorized and provided for in the standards of design adopted for the construction of such highways. Such median strips or neutral zones provide for a complete separation of traffic moving in opposite directions, and reduce the hazards incident to motor vehicle travel; and the establishment of such median strips or neutral zones have been recognized as a proper exercise of the police power. Rand v. Mississippi State Highway Commission, 191 Miss. 230, 199 So. 374; Commonwealth v. Nolan, 189 Ky. 34, 224 S.W. 506, 11 A.L.R. 202; Jones Beach Blvd. Estate v. Moses, supra [268 N. Y. 362, 197 N.E. 313, 100 A.L.R. 487]; City of Fort Smith v. Van Zandt, 197 Ark. 91, 122 S.W.2d 187; Impagliazzo v. Nassau County, Sup., 123 N.Y.S.2d 819."
It will be recalled that in the first Woollard case a 250-foot right of way was taken by the State. Among other things, Woollard contended that a right of way of that width was not needed. In pointing out that a 250-foot right of way was not of an excessive width, this Court said: "It is evident that the present undertaking would not be necessary had the State taken a sufficiently wide easement when the road from Marion to Turrell was originally laid out. In these circumstances it is certainly permissible for the Commission to look ahead in its planning." Woollard v. State, supra [220 Ark. 731, 249 S.W.2d 564, 566].
There are four concrete strips on the right of way. Woollard has complete and full access to the two outside strips. He may move his vehicles onto these two strips at any point he so desires, and travel in either direction to controlled points, where he can cross the two center concrete strips with safety to himself and others. I don't see how anyone can read the first Woollard case and say it was contemplated that the landowner would have the right to cross the two center strips, when constructed, at any place other than controlled points. The opinion clearly states that it was planned to build a parkway down the middle of the two strips from which dirt would be taken to be used as fills for the concrete strips. There is nothing to indicate that a vehicle would be able to cross this parkway. It was to be put there to separate the lanes of traffic and make the highway safe.
According to the great weight of authority, and the majority has cited no authority to the contrary, Woollard has not been denied access to the system of highways, and he is entitled to nothing more. Department of Highways v. Jackson, Ky., 302 S.W.2d 373. He does not have the right to cross the highway with his equipment at any point he may choose. Turner v. State Roads Commission, 213 Md. 428, 132 A.2d 455; Dougherty County v. Hornsby, 213 Ga. 114, 97 S.E.2d 300; Brady v. Smith, 139 W.Va. 259, 79 S.E.2d 851. In the last cited cases the highways were divided into traffic lanes with a physical barrier between them, which allows the abutter to travel in only one direction when leaving his property. Our own case of City of Fort Smith v. Van Zandt, 197 Ark. 91, 122 S.W.2d 187, is to the same effect. When once on the highway an abutter's rights are no more nor less than any other user of the highway. *914 Jones Beach Blvd. Estate v. Moses, 268 N. Y. 362, 197 N.E. 313; Dougherty County v. Hornsby, 213 Ga. 114, 97 S.E.2d 300.
In the case of Turner v. State Roads Commission, 213 Md. 428, 132 A.2d 455, 459, the court quoted from Langley Shopping Center, Inc., v. State Roads Commission, 213 Md. 230, 131 A.2d 690, 693, as follows: "`It seems to us entirely reasonable that if the State could divert traffic entirely away from the plaintiffs' corners without being liable for damages for doing so, it may, in the interest of safety, and without incurring liability for damages, interpose an obstacle which may render access to the plaintiffs' properties less easy but which does not actually or virtually destroy the plaintiffs' access to the highway. An opposite view would require the State to pay through the nose for the privilege of further improving and adding to the safety of highways which it has built * * *.'" [Emphasis supplied.]
In Warren v. Iowa State Highway Commission, Iowa, 93 N.W.2d 60, it was held that where a farmer's home place and a 40-acre tract on a secondary road were located to the east of a national interstate and defense highway and her slightly larger tract used as a part of the same farming operation was located west of said highway on the same secondary road, and the closing of the secondary road on either side of the highway required the farmer to travel a circuitous route over three miles in length to go from her home place to the other tract instead of a direct one-quarter mile route over the secondary road, and the farmer's right of access to the secondary road was not affected and she had the same means of ingress and egress thereto as she had prior to the closing, farmer had no special damages and her injury, though greater in degree, was the same in kind as that suffered by the general public and was not compensable.
In Carazalla v. State of Wisconsin, 269 Wis. 593, 71 N.W.2d 276, 278, the court said, in discussing limited access highways and their effect upon abutting property owners: "If the abutting land owner's access to the highway is merely made more circuitous, no compensation should be paid." To the same effect is the case of Holman v. State, 97 Cal.App.2d 237, 217 P.2d 448, 452, where the court said: "The facts pleaded herein show that the highway upon which plaintiffs' property abuts is not closed and that plaintiffs, once on the highway to which they have free access, are in the same position and subject to the same police power regulations as every other member of the traveling public. Because of a police power regulation for the safety of traffic, they are, like all other travelers, subject to traffic regulations. They are liable to some circuity of travel in going from their property in a northerly direction. They are not inconvenienced whatever when traveling in a southerly direction from their property. The re-routing or diversion of traffic is a police power regulation and the incidental result of a lawful act and not the taking or damaging of a property right. * * *
"If the contention of the plaintiffs herein is sustained, the right of the State to control the traffic as a safety regulation would be definitely curtailed and traffic islands or double lines in the highway to separate through traffic would be prohibited. The damage of which plaintiffs complain would be the same if no division strip had been constructed on the highway in question but that double white lines had been painted on the highway and a `no left turn' sign had been erected, or if the entire highway had been designated as a one-way street."
In accord is People v. Sayig, supra, 226 P.2d 702.
Mere circuity of travel is not cause for damages. State ex rel. Merritt v. Linzell, 163 Ohio St. 97, 126 N.E.2d 53; People ex rel. Dept. of Public Works v. Schultz Co., 123 Cal.App.2d 925, 268 P.2d 117; Blumenstein v. City, 143 Cal.App.2d 264, 299 P.2d 347; State v. Fox, 53 Wash.2d 216, 332 P. 2d 943.
*915 For all practical purposes, Iowa State Highway Commission v. Smith, 248 Iowa 869, 82 N.W.2d 755, is directly in point with the case at bar. The Smiths owned property on both sides of Hubbell Avenue; their business was on one side of the street and their home was on the other. A controlled access highway was constructed and the property owners could no longer cross directly from their home to the place of business. The court said, 82 N.W.2d at page 758: "Heretofore defendants could cross Hubbell Avenue by motor vehicle between their home and business properties by driving from 500 to 600 feet. When the contemplated highway improvement is made they may cross only at East 38th or 42d Street. The increased distance in traveling from their home to place of business and back again will approximate a mile. In the future the residence property may be entered from the highway only when going east and upon leaving one must drive east as far as 42d Street. West bound travelers desiring to enter the residence property will be required to go west to 38th Street, make a U turn there and go back east to the driveway." In holding that the property owners suffered no compensable damages, the court said, 82 N.W.2d at page 761: "We have no difficulty in disposing of defendants' appeal from the part of the judgment holding the prohibition of crossing the highway, left turns and U turns except at designated points where there are no raised `jiggle' bars does not constitute a taking of defendants' property within the law of eminent domain. The law on this phase of the controversy seems to be thoroughly settled by many recent decisions and the judgment must be affirmed on defendants' appeal." Among the many cases cited by the court in support of its conclusion is City of Fort Smith v. Van Zandt, 197 Ark. 91, 122 S.W. 2d 187.
And finally we come to our case of Arkansas State Highway Commission v. Bingham, which is being handed down the same day as the case at bar. In my opinion the two cases are in hopeless conflict. Mrs. Bingham owned valuable property. By reason of the construction of controlled access facilities, the value of the property was greatly depreciated. In that case this Court is holding that according to the great weight of authority, including decisions of this Court, Mrs. Bingham and her tenants have suffered no compensable damages. The decision in the Bingham case is sound and is supported by practically all of the authority on the subject. But in the case at bar, where Woollard has suffered damages because of the construction of controlled access facilities, he is permitted to recover a large sum as damages. (Woollard has suffered small damages compared to those suffered by Mrs. Bingham and her tenants.) There is no valid distinction between the two cases. Woollard is damaged because he cannot cross the center strip of the highway except at controlled points. Mrs. Bingham is damaged because people who would ordinarily patronize her service station cannot leave the center strip except at controlled points. In fact, there is a great deal more merit to Mrs. Bingham's claim for damages than there is to the claim of Woollard. Woollard was actually paid for the damages he sustained by reason of the severance of his place. The law presumes that he was paid in full for all damages sustained. Mrs. Bingham has been paid nothing for the loss she has sustained by reason of the access facilities preventing the traveling public from conveniently reaching her property.
In the Bingham case to sustain the conclusion reached there are cited the cases of City of Fort Smith v. Van Zandt, 197 Ark. 91, 122 S.W.2d 187; Muse v. Mississippi State Highway Commission, 233 Miss. 694, 103 So.2d 839; State v. Linzell, 163 Ohio St. 97, 126 N.E.2d 53; State v. Fox, 53 Wash.2d 216, 332 P.2d 943; and Blumenstein v. City, 143 Cal.App.2d 264, 299 P.2d 347. I submit that all of those cases support the view I have expressed in this dissent and do not sustain the finding of the majority in the case at bar.
*916 In referring to what it would mean to sustain the same kind of contention that Woollard, the landowner, makes in the case at bar, Clarke on The Limited-Access Highway, supra [27 Wash.L.Rev. 111], says: "It would mean in effect that every abutter could demand an opening through the central median or dividing strip both between the outer highway and the through-traffic lanes, and through the center dividing strip of the through lanes. It is obvious that such concession to abutters would defeat the underlying purpose of the limited-access facility. Yet the only alternative under such a rule of law is payment of * * * tribute by the public to adjacent owners. This tribute could be so great in the aggregate that the cost of freeways would, in fact, be prohibitive." And Covey on Highway Protection Through Control of Access and Roadside Development, supra, 1959 Wisc.L.Rev. 567, 581, has this to say: "Further, as a matter of practice, if the state must build a service road and compensate the abutter for being placed on it, the highway commission will not build such auxiliary facilities." As it now stands, the Highway Department can hardly hope to build a modern highway system because of the large damages it will have to pay to every property owner who has had his property severed and is prevented from crossing the right of way at just any point he may choose, and it is fairly certain that in other cases the cost will be heavy, as it is in the case at bar.
For the reasons set out herein, I respectfully dissent.
HOLT, J., joins in this dissent.
| {
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378 Pa. Superior Ct. 303 (1988)
548 A.2d 623
EMLENTON AREA MUNICIPAL AUTHORITY
v.
Sidney L. MILES, Doing Business, as Miles Developing and Contracting, Appellant.
Supreme Court of Pennsylvania.
Argued August 16, 1988.
Filed October 5, 1988.
*304 David B. Acker, District Attorney, Coudersport, for appellant.
Jon M. King, Emlenton, for appellee.
Before BROSKY, KELLY and HESTER, JJ.
BROSKY, Judge:
This is an appeal from the Order of December 30, 1987, which permanently stayed arbitration of the disputes between the parties. Appellant now contends that the trial court erred in finding that the contract between the parties required mutual agreement before any disputes arising from the contract could be submitted to arbitration.
*305 Upon consideration of the record and the briefs of counsel, we now reverse and remand for further proceedings consistent with this Opinion.
On March 13, 1985, appellee Emlenton Area Municipal Authority ("Emlenton") entered into a contract with appellant Sidney L. Miles, d/b/a Miles Developing and Contracting ("Miles"), wherein Miles was to construct a municipal waste water collection and treatment works in Venango and Clarion Counties, Pennsylvania. During the performance of the contract, certain disputes pertaining to the contract arose between the parties, causing them to assert claims for damages against one another.
On June 2, 1986, Miles, in an attempt to resolve his claims against Emlenton, filed a demand for arbitration with the American Arbitration Association. Emlenton responded on August 6, 1986, by filing an application for stay of arbitration proceedings with the Clarion County Court of Common Pleas.
With that matter still pending, Emlenton then filed, on May 4, 1987, an action at law in the same court, asserting its claims for damages against Miles and his surety,[1] Fidelity and Deposit Company of Maryland. In response to the action at law, Miles filed, on June 5, 1987, an application to compel arbitration. The court entered an order that same day to stay the proceedings at law, pending resolution of the issue of the arbitrability of the dispute.
On October 1, 1987, an order was entered with respect to Miles' claims against Emlenton, granting Emlenton's application for a stay of arbitration; similarly, on October 7, 1987, an order was entered in Emlenton's action at law against Miles, denying Miles' application to compel arbitration. In both instances, the court held that those portions of the contract comprising the parties' agreement to arbitrate, only provide for the submission of any dispute or disputes to arbitration upon the mutual consent of the parties to so submit, and that, in light of Emlenton's opposition *306 to arbitration of these disputes, Emlenton could not be compelled to submit to arbitration in either action.
Miles requested reconsideration in both cases, and reconsideration was expressly granted by the order of October 28, 1987. On December 30, 1987, however, the court entered a final order in equity in both actions, permanently staying arbitration. This timely consolidated appeal followed.
Appellant now argues that the trial court erred in finding that the agreement to arbitrate contained within the parties' contract requires mutual consent for the submission of any particular dispute or disputes to arbitration, and maintains that the court's narrow reading of the agreement precluding arbitration violates the liberal policy favoring arbitration, as well as the relevant rules of contractual interpretation and construction, expressed in Pennsylvania appellate law.[2] Conversely, appellee maintains that Pennsylvania law requires strict construction of arbitration agreements, and that a party may be compelled to arbitrate a dispute only *307 upon the finding of a clear, express, and unequivocal agreement to do so.
Our scope of review of an adjudication in equity is well established. The chancellor's findings of fact have the force of a jury verdict, and are not to be disturbed where supported by competent evidence. Presbytery of Beaver-Butler of United Presbyterian Church in U.S. v. Middle-sex Presbyterian Church, 507 Pa. 255, 267, 489 A.2d 1317, 1323 (1985), cert den. 474 U.S. 887, 106 S.Ct. 198, 88 L.Ed.2d 167; Sechler v. Sechler, 403 Pa. 1, 7, 169 A.2d 78, 80 (1961). However, the chancellor's conclusions of law are always reviewable, as they are no more than his reasoning from the underlying facts. Presbytery of Beaver-Butler, supra; Sechler, supra; Village Beer and Beverage, Inc. v. Vernon D. Cox & Co., Inc., 327 Pa.Super. 99, 102, 475 A.2d 117, 118 (1984).
In the matter sub judice, the chancellor was called upon to determine whether the parties had agreed to submit any and all disputes to arbitration. Voluntary arbitration is purely a matter of contract, and, absent an express agreement between the parties to arbitrate their disputes, they cannot be compelled to arbitrate. Gaslin, Inc. v. L.G.C. Exports, Inc., 334 Pa.Super. 132, 139, 482 A.2d 1117, 1121 (1984). As such, it is for the court to determine whether an agreement to arbitrate exists, for the construction and interpretation of contracts is a question of law. Utica Mutual Ins. Co. v. Contrisciane, 504 Pa. 328, 334, 473 A.2d 1005, 1008 (1984). As a question of law, therefore, the chancellor's conclusion as to whether the parties have agreed to arbitrate, is reviewable by this Court.
Upon undertaking such review, we are confronted with two basic, and seemingly contradictory, propositions, as noted by the parties themselves: (1) arbitration agreements are to be strictly construed and not extended by implication; and (2) when parties have agreed to arbitrate in a clear and unmistakable manner, every reasonable effort should be made to favor the agreement, unless it may be said with positive assurance that the arbitration clause involved is not *308 susceptible to an interpretation that covers the asserted dispute. See Hassler v. Columbia Gas Transmission Corp., 318 Pa.Super. 302, 307, 308, 464 A.2d 1354, 1356, 1357 (1983); also see Lincoln University of the Comm. System of Higher Education v. Lincoln University Chapter of the American Assoc. of University Professors, 467 Pa. 112, 119-20, 354 A.2d 576, 581-82 (1976). Obviously, some tension may arise between the two propositions; in making every effort to favor the settlement of a dispute by arbitration, one must be careful not to extend the arbitration agreement by implication beyond the clear, express, and unequivocal intent of the parties as manifested by the writing itself. Hassler, supra.
To resolve this tension, resort may be had to the rules of contractual construction. In construing a contract, the intention of the parties is paramount, and the court will adopt an interpretation which under all circumstances ascribes the most reasonable, probable, and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished. Village Beer, supra, 327 Pa.Superior Ct. at p. 107, 475 A.2d at p. 121; Unit Vending Corp. v. Lacas, 410 Pa. 614, 617, 190 A.2d 298, 300 (1963). Moreover, one part of a contract cannot be so interpreted as to annul another part, but, rather, the agreement must be interpreted as a whole, giving effect to all of its provisions. Village Beer, supra; Shehadi v. Northeastern Nat'l Bank of Pa., 474 Pa. 232, 236, 378 A.2d 304, 306 (1977). Where a contract may be interpreted in a manner giving effect to all provisions, that interpretation is preferred. Rothstein v. Jefferson Ice Mfg. Co., 137 Pa.Super. 298, 306, 9 A.2d 149 (1939). Finally, where an act or event mentioned in a contract is not expressly made a condition precedent, it will not be so construed absent the clear intent of the parties. Village Beer, supra; American Leasing v. Morrison Co., 308 Pa.Super. 318, 327, 454 A.2d 555, 559 (1982).
The relevant provisions of the parties' contract, as determined by the court in equity, are as follows:
*309 Standard General Conditions
Article 16 Arbitration
16.1 All claims, disputes and other matters in question between Owner and Contractor arising out of, or relating to the Contract Documents or the breach thereof. . . shall be decided by arbitration . . .
Article 17 Miscellaneous
17.4 The duties and obligations imposed by the General Conditions and the rights and remedies available to the parties hereto, . . ., and all of the rights and remedies available to Owner and Engineer thereunder, shall be in addition to and shall not be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by law or contract, . . .
Supplemental General Conditions
1. General
(a) The owner and Contractor agree that the following supplemental general provisions shall apply to the work to be performed under this contract and that such provisions shall supercede [sic] any conflicting provisions of this contract.
* * * * * *
(c) The rights and remedies of the Owner provided for in these clauses are in addition to any other rights and remedies provided by law or under this Contract.
7. Remedies
Except as may be otherwise provided in this Contract, all claims, counter-claims, disputes and other matters in question between Owner and Contractor arising out of or relating to this agreement or the breach thereof will be decided by arbitration if the parties hereto mutually agree, or in a court of competent jurisdiction within the State in which the Owner is located.
(Emphasis supplied.)
*310 In construing the above, the court relied heavily upon the language in Supplemental General Condition 1(a), stating that the Supplemental General Conditions are to supersede "any conflicting provisions" elsewhere in the contract. From 1(a), the court concluded that Supplemental General Condition 7, providing for arbitration only upon the mutual agreement of the parties to submit a dispute or disputes to arbitration, supersedes the mandatory arbitration provision in Article 16.1 of the Standard General Conditions, and precludes appellee from being compelled to arbitrate without its express consent.
Appellee further attempts to buttress the court's interpretation with the language of Supplemental General Condition 1(c), and Article 17.4 of the Standard General Conditions, maintaining that these clauses clearly demonstrate that Article 16.1 is not to be construed as a limitation upon any "right or remedy" under the contract, and that the mutual consent provision of Paragraph 7, as a condition precedent to arbitration, is a right and remedy which cannot be annulled by Article 16.1.
Appellant maintains, however, that such a construction blatantly ignores Paragraph 7's preface, "(E)xcept as may be otherwise provided in this Contract". Appellant argues that the Supplemental General Conditions are a required part of this type of contract under federal law, not a bargained-for part of the agreement, and that the purpose of this preface is to permit the parties to provide elsewhere in the contract for dispute resolution by mandatory arbitration, should they choose to so provide; moreover, appellant continues, when the preface is taken into account, there is no conflict between Article 16.1 and Paragraph 7, and the supersession language of Paragraph 1(a) is not invoked.
Without addressing whether the Supplemental General Conditions are boilerplate requirements under federal law, we nonetheless conclude that appellant's construction of these interrelating contractual provisions "ascribes the most reasonable, probable, and natural" intention of the parties.
*311 Initially, the language of Article 16.1, providing for mandatory arbitration of all contractually-related disputes, has been used countless times in previous cases, and has already been held to be "the broadest conceivable language" from which it must be concluded that the parties intended "an unlimited arbitration clause." See Borough of Ambridge Water Authority v. Columbia, 458 Pa. 546, 548, 328 A.2d 498, 501 (1974); see also Wolf v. Baltimore, 250 Pa.Super. 230, 235, 378 A.2d 911, 913 (1977) and Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 663, 331 A.2d 184, 185 (1975). As it is always to be assumed that parties contract with knowledge of the existing law, see Harding v. Pa. Mut. Life Ins. Co., 171 Pa.Super. 236, 252, 90 A.2d 589, 597 (1952), aff'd 373 Pa. 270, 95 A.2d 221, cert. den. 346 U.S. 812, 74 S.Ct. 21, 98 L.Ed. 340 (1953), we must begin with the assumption that the parties did not include such a clause in ignorance of its implications.
Furthermore, we find merit to appellant's argument that the preface to Paragraph 7, "(E)xcept as may be otherwise provided in this Contract" is rendered a nullity under the trial court's construction of this contract. The phrase is of no effect unless it is construed as a mechanism by which the parties may elect to either: (1) eliminate the possibility of arbitration entirely, or (2) provide a more binding arbitration provision. Clearly and unambiguously, the parties have chosen to follow the latter course through the inclusion of Article 16.1. To construe the interrelationship of Article 16.1 and Paragraph 7 in the manner suggested by the trial court permits the "mutual agreement" language of Paragraph 7, at the least, to become a condition precedent to the operation of a clear mandatory arbitration provision in Article 16.1, and at the worst to annul not only Article 16.1, but Paragraph 7's own preface. Either result flies in the face of accepted rules of construction, see Village Beer, supra; American Leasing, supra; Shehadi, supra. This is to say nothing of the sheer violation of common sense inherent in an interpretation which would permit a party to avoid a mandatory arbitration provision to which he has agreed, by refusing his consent to arbitration. Conversely, *312 the construction suggested by appellant does not annul Paragraph 7, for the mutual agreement provision is expressly conditioned in the paragraph itself with the contingency that the parties might elect to "otherwise provide" elsewhere in the contract for dispute resolution.
Likewise, when the "mutual agreement" language is not read in a vacuum, but in the context of the entire paragraph, neither the supersession language of Paragraph 1(a), nor the prohibitions against limiting rights and remedies found in Article 17.4 and Paragraph 1(c), are even invoked. When the preface of Paragraph 7 is given effect, Paragraph 7 and Article 16.1 simply do not conflict, and Article 16.1 is not a prohibited limitation upon a remedy, for the remedy is, by its very terms, circumscribed and open to modification.
Finally, we are mindful of the policy of this Commonwealth favoring arbitration whenever arbitration is expressly provided for:
Settlement of disputes by arbitration are no longer deemed contrary to public policy. In fact, our statutes encourage arbitration and with our dockets crowded and in some jurisdictions congested arbitration is favored by the courts.
* * * * * *
Arbitration is not a makeshift or a subterfuge. It is not an excuse for delay or a fan for the cooling off of tempers. It is a solemn and serious undertaking for the attainment of justice and when parties engaged in a common enterprise agree to settle by arbitration all differences which may arise between them they are bound by their commitment as much as if they had entered into a stipulation in Court.
Borough of Ambridge, supra, 458 Pa. at p. 549, 328 A.2d at p. 500.
In light of the foregoing, we now reverse the order of December 30, 1987, which permanently stayed arbitration, and remand for arbitration proceedings. Jurisdiction is relinquished.
NOTES
[1] The surety is not a party to the current appeal.
[2] Appellant also argues, for a substantial portion of his brief, that the Federal Arbitration Act ("FAA") is applicable to the subject contract, as one involving a "transaction in commerce", and that the parties' agreement to arbitrate should therefore be construed in keeping with the liberal federal policy favoring resolution of disputes through arbitration.
We are precluded, however, from passing upon the merits of appellant's FAA argument. The determination as to whether a contract is one evidencing a transaction in or relating to interstate commerce, is a factual determination. Gavlik Construction Co. v. H.F. Campbell Co., 526 F.2d 777, 784 (3rd Cir. 1975). Where the factfinder makes no findings as to whether the contract evidences a transaction in commerce, and does not state whether it is applying federal or state law to the arbitration issue, the absence of any findings precludes appellate consideration as to whether the FAA applies. Id., citing Merritt-Chapman & Scott Corp. v. Pennsylvania Turnpike Commission, 387 F.2d 768, 772 (3rd Cir. 1967).
In the instant matter, appellant submitted a proposed finding of fact to the trial court, "(T)hat the contract involved in the instant controversy is a transaction which `involves commerce' and is, therefore, subject to the provision of the Federal Arbitration Act." The court did not adopt this finding, and was silent as to whether federal or state law was applied. Normally, we might remand for a specific finding of fact on this point, see Gavlik, supra. However, as we would reach the same result under either federal or state law, we do not find a need to remand. Id.
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Order entered November 23, 2015
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00798-CV
IN THE INTEREST OF S.N., A CHILD
On Appeal from the 254th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-11-06092
ORDER
The reporter’s record in this case has not been filed. By letter dated August 14, 2015, we
informed appellant the court reporter had notified us that the reporter’s record had not been filed
because appellant had not (1) requested the record; or (2) paid for or made arrangements to pay
for the record. We directed appellant to provide the Court with written verification the record
had been requested and had been paid for or arrangements had been made to pay for the record,
or that appellant had been found entitled to proceed without payment of costs. We cautioned
appellant that failure to provide the required documentation within ten days might result in the
appeal being ordered submitted without the reporter’s record. To date, appellant has not
provided the required documentation or otherwise corresponded with the Court regarding the
status of the reporter’s record. Therefore, we ORDER this appeal submitted without a reporter’s
record. Appellant’s brief is due THIRTY DAYS from the date of this order.
/s/ CAROLYN WRIGHT
CHIEF JUSTICE
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OMNIPOINT COMMUNICATIONS, INC., Nos. 10-56877
a Delaware corporation, DBA T- 10-56944
Mobile,
Plaintiff-Appellee/ D.C. No.
Cross-Appellant, 2:09-cv-03777-
RGK-SS
v.
CITY OF HUNTINGTON BEACH a OPINION
public entity organized and existing
under the laws of the State of
California, CITY COUNCIL OF THE
CITY OF HUNTINGTON BEACH,
Defendants-Appellants/
Cross-Appellees.
Appeals from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued November 6, 2012
Resubmitted December 4, 2013
Pasadena, California
Filed December 11, 2013
2 OMNIPOINT V. CITY OF HUNTINGTON BEACH
Before: Susan P. Graber, Sandra S. Ikuta,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Ikuta
SUMMARY*
Telecommunications Act of 1996
Reversing the district court’s judgment, the panel held
that the Telecommunications Act of 1996 did not preempt the
City of Huntington Beach’s decision to require a company to
obtain voter approval before constructing a mobile telephone
antenna on city-owned park property.
The panel held that 47 U.S.C. § 332(c)(7)(A) functions to
preserve local land use authorities’ legislative and
adjudicative authority subject to certain substantive and
procedural limitations. The panel held that § 332(c)(7) has
the following preemptive scope: (1) it preempts local land use
authorities’ regulations if they violate the requirements of
§ 332(c)(7)(B)(i) and (iv); and (2) it preempts local land use
authorities’ adjudicative decisions if the procedures for
making such decisions do not meet the minimum
requirements of § 332(c)(7)(B)(ii) and (iii).
The panel held that the City’s “Measure C,” which
amended the City charter to impose certain limits on the
City’s ability to authorize use of city-owned property, was not
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
OMNIPOINT V. CITY OF HUNTINGTON BEACH 3
a land use regulation or decision subject to the limitations of
§ 332(c)(7), but rather was a voter-enacted rule that the City
could not lease or sell city-owned property for certain types
of construction unless authorized by a majority of the
electors. Agreeing with the Second Circuit, the panel held
that Measure C, therefore, was not preempted by the
Telecommunications Act of 1996.
COUNSEL
Jennifer McGrath, City Attorney, and Scott F. Field (argued),
Assistant City Attorney, Huntington Beach, California, for
Defendants-Appellants/Cross-Appellees.
Martin L. Fineman (argued), Davis Wright Tremaine LLP,
San Francisco, California; John J. Flynn III and Benjamin Z.
Rubin, Nossaman LLP, Irvine, California, for Plaintiff-
Appellee/Cross-Appellant.
OPINION
IKUTA, Circuit Judge:
The City of Huntington Beach appeals the district court’s
determination that the Telecommunications Act of 1996, Pub.
L. No. 104-104, 110 Stat. 56 (codified as amended at U.S.C.
Titles 15, 18, and 47) (the TCA), preempted its decision to
require Omnipoint Communications, Inc. (doing business as
“T-Mobile”), to obtain voter approval before constructing
mobile telephone antennae on city-owned park property. T-
Mobile cross-appeals the district court’s denial of permanent
4 OMNIPOINT V. CITY OF HUNTINGTON BEACH
injunctive relief. We conclude that the City’s decision was
not preempted and consequently reverse the district court.
I
We first consider the preemptive scope of the TCA.
Because congressional intent “is the ultimate touchstone of
preemption analysis,” when “Congress adopts a statute that
provides a reliable indication of Congressional intent
regarding preemption, the scope of federal preemption is
determined by the statute.” Engine Mfrs. Ass’n v. S. Coast
Air Quality Mgmt. Dist., 498 F.3d 1031, 1040 (9th Cir. 2007)
(internal quotation marks omitted). Although congressional
intent “primarily is discerned from the language of the pre-
emption statute and the statutory framework surrounding it,”
also relevant are “the structure and purpose of the statute as
a whole, as revealed not only in the text, but through the
reviewing court’s reasoned understanding of the way in
which Congress intended the statute and its surrounding
regulatory scheme to affect . . . the law” and parties whose
actions are affected by the statute. Medtronic, Inc. v. Lohr,
518 U.S. 470, 486 (1996) (internal quotation marks and
citations omitted); see also Cipollone v. Liggett Grp., Inc.,
505 U.S. 504, 516 (1992) (explaining that Congress’s intent
to preempt “may be explicitly stated in the statute’s language
or implicitly contained in its structure and purpose” (internal
quotation marks omitted)). Therefore, we begin by assessing
the text of the relevant provisions of the TCA and their
historical and statutory context.
In 1996, Congress passed the TCA to encourage the
development of telecommunications technologies, including
wireless telephone services. City of Rancho Palos Verdes v.
Abrams, 544 U.S. 113, 115 (2005). Among other means to
OMNIPOINT V. CITY OF HUNTINGTON BEACH 5
this end, Congress enacted 47 U.S.C. § 332(c)(7), entitled
“[p]reservation of local zoning authority,” which “was
intended to minimize federal interference with State and local
land use decisions,” Kay v. City of Rancho Palos Verdes,
504 F.3d 803, 813 (9th Cir. 2007), while still reducing “the
impediments imposed by local governments upon the
installation of facilities for wireless communications, such as
antenna towers,” Abrams, 544 U.S. at 115.
As suggested by the title of § 332(c)(7), an understanding
of the mechanics of local governments’ zoning and land use
decision making is necessary to discern the section’s
preemptive scope. See Kay, 504 F.3d at 813. In general,
local governmental authorities, such as cities and counties,
establish local zoning boards, planning commissions, or
analogous entities to promulgate and enforce zoning and
other land use restrictions within their jurisdiction. Patrick J.
Rohan, Zoning and Land Use Controls § 1.02[1]–[2] (2012);
Julian Conrad Juergensmeyer & Thomas E. Roberts, Land
Use Planning and Development Regulation Law § 3.1 (3d ed.
2013); see also Williamson Cnty. Reg’l Planning Comm’n v.
Hamilton Bank, 473 U.S. 172, 176, 180–81 (1985). Local
land use decisions fall into two general categories. See Dolan
v. City of Tigard, 512 U.S. 374, 385 (1994) (contrasting
“[t]he sort of land use regulations” that “involved essentially
legislative determinations classifying entire areas of the city,”
with a city’s “adjudicative decision to condition petitioner’s
application for a building permit on an individual parcel”).
First, local land use authorities may recommend or enact
plans and zoning maps that affect the classification and use of
property generally. Juergensmeyer & Roberts, supra, at
§ 2:7. This is primarily a legislative function. See Rohan,
supra, at § 1.03[2][a]; Cal. Gov’t Code § 65301.5 (classifying
the adoption of a general plan as a legislative act). Second,
6 OMNIPOINT V. CITY OF HUNTINGTON BEACH
local land use authorities may exercise an adjudicative
function that involves applying land use rules to individual
property owners, including the consideration of requests for
waivers and variances. Juergensmeyer & Roberts, supra, at
§§ 5:1, 5:3.
In addressing land use regulations and decisions related
to the installation of wireless communication facilities, the
TCA closely tracks the typical division of land use decision
making. See Kay, 504 F.3d at 814 (noting that the text used
in § 332(c)(7) “closely mirrors” state laws relating to zoning
and permitting agency decisions). Congress began by
enunciating a general principle of preservation of local
authority:
Except as provided in this paragraph
[§ 332(c)(7)] nothing in this chapter[1] shall
limit or affect the authority of a State or local
government or instrumentality thereof over
decisions regarding the placement,
construction, and modification of personal
wireless service facilities.
47 U.S.C. § 332(c)(7)(A).
This preservation principle is subject to the limitations set
forth in the subsections of § 332(c)(7)(B). Two of the four
subsections, § 332(c)(7)(B)(i) and (iv), relate to the
promulgation of generally applicable legislative regulations.
Thus, § 332(c)(7)(B)(i) provides that the “regulation of the
1
Section 332(c)(7) is codified within chapter five of Title 47 of the
United States Code, which is entitled: “Wire or Radio Communication.”
See 47 U.S.C. §§ 151 et seq.
OMNIPOINT V. CITY OF HUNTINGTON BEACH 7
placement, construction, and modification of personal
wireless service facilities by any State or local government or
instrumentality thereof shall not unreasonably discriminate
among providers of functionally equivalent services” and
“shall not prohibit or have the effect of prohibiting the
provision of personal wireless services.” Id.
§ 332(c)(7)(B)(i)(I)–(II). Section 332(c)(7)(B)(iv) provides
that “[n]o State or local government or instrumentality
thereof may regulate the placement, construction, and
modification of personal wireless service facilities on the
basis of the environmental effects of radio frequency
emissions” where the facilities otherwise comply with federal
requirements. Id. § 332(c)(7)(B)(iv).
The other two subsections, § 332(c)(7)(B)(ii) and (iii),
refer to the procedures used by local land use authorities in
making adjudicative decisions. See Cellular Tel. Co. v. Town
of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999) (noting that
the TCA “clearly establishes procedural requirements that
local boards must comply with in evaluating cell site
applications”). These subsections provide:
(ii) A State or local government or
instrumentality thereof shall act on any
request for authorization to place, construct,
or modify personal wireless service facilities
within a reasonable period of time after the
request is duly filed with such government or
instrumentality, taking into account the nature
and scope of such request.
(iii) Any decision by a State or local
government or instrumentality thereof to deny
a request to place, construct, or modify
8 OMNIPOINT V. CITY OF HUNTINGTON BEACH
personal wireless service facilities shall be in
writing and supported by substantial evidence
contained in a written record.
Id. § 332(c)(7)(B)(ii)–(iii). Under these subsections, local
zoning authorities must adopt administrative procedures
requiring timely, written decisions when adjudicating an
application for approval of a development project involving
“personal wireless service facilities.” Id. § 332(c)(7)(B)(ii);
see Kay, 504 F.3d at 814–15.
We conclude that § 332(c)(7)(A) functions to preserve
local land use authorities’ legislative and adjudicative
authority subject to certain substantive and procedural
limitations. This conclusion clarifies the scope of
§ 332(c)(7)(A)’s preemptive effect. Section 332(c)(7) does
not have a typical preemption clause that expressly preempts
state law, followed by a savings provision excepting certain
types of state enactments from preemption. Cf. 29 U.S.C.
§ 1144(a), (b)(2)(A) (stating that the provisions of ERISA
“shall supersede any and all State laws” as specified, except
as provided in the savings clause). Rather, § 332(c)(7) takes
the opposite approach: it begins with a savings clause, and
then makes the savings clause subject to exceptions. Thus
§ 332(c)(7) expressly preserves local land use decisions, such
as decisions regarding “placement, construction, and
modification” of wireless facilities, and then makes this
preservation principle subject to a proviso: “[e]xcept as
provided” in the rest of § 332(c)(7). Id. § 332(c)(7)(A)
(emphasis added). Although this approach reverses the order
of a typical preemption clause, it accomplishes the same goal:
by logical inference, Congress intended the proviso section to
preempt local land use authority that does not comply with
the requirements in § 332(c)(7)(B), while preserving local
OMNIPOINT V. CITY OF HUNTINGTON BEACH 9
zoning authority that complies with such requirements. See
MetroPCS v. City of S.F., 400 F.3d 715, 735–36 (9th Cir.
2005) (holding that the TCA preempts only those local
zoning decisions that conflict with the TCA’s “anti-
discrimination and anti-prohibition provisions” and not
decisions that are harmless to the FCC’s regulatory scheme).
Accordingly, we conclude that § 332(c)(7) has the following
preemptive scope: (1) it preempts local land use authorities’
regulations if they violate the requirements of
§ 332(c)(7)(B)(i) and (iv); and (2) it preempts local land use
authorities’ adjudicative decisions if the procedures for
making such decisions do not meet the minimum
requirements of § 332(c)(7)(B)(ii) and (iii).
II
We next consider the facts of this case, including the
pertinent legal framework for the City’s decisions.
A
This case implicates two different aspects of municipal
authority: the City’s authority to enter into licenses of city-
owned property, and the City’s responsibility for making and
implementing planning and zoning decisions. First, as a
charter city under California law, the City has plenary
authority to control municipal property. The California
constitution reserves to charter cities the authority to “make
and enforce all ordinances and regulations in respect to
municipal affairs, subject only to restrictions and limitations
provided in their several charters.” Cal. Const. art. 11, § 5(a);
see also Simons v. City of L.A., 63 Cal. App. 3d 455, 467–68
(1976). In 1990, an initiative known as Measure C amended
the city charter to impose certain limits on the City’s ability
10 OMNIPOINT V. CITY OF HUNTINGTON BEACH
to authorize use of city-owned property. This provision
states:
No . . . structure costing more than
$100,000.00 may be built on or in any park or
beach or portion thereof . . . unless authorized
by the affirmative votes of at least a majority
of the total membership of the City Council
and by the affirmative vote of at least a
majority of the electors voting on such
proposition at a general or special election at
which such proposition is submitted.2
According to the voter information pamphlet, which is “a
proper extrinsic aid” to interpreting an initiative, People v.
Lester, 220 Cal. App. 4th 291, 301 (2013), the purpose of
Measure C was to allow “the citizens of Huntington Beach to
have a direct vote in any future commercial development or
sale of the city’s parks and beaches,” so as to put control of
public park lands into the hands of the voters “and out of the
reach of developers and special interest groups.” By giving
the voters authority over construction on public lands,
Measure C operates as a limitation on the City’s otherwise
plenary authority over these lands.
Second, the City has obligations under state and local law
for making and implementing land use decisions. Although
charter cities are also exempt from many of the state local
planning and zoning regulations provisions, see Cal. Gov’t
2
Measure C is now codified in § 612(b) of the City’s charter, although
the cost of a structure that triggers the provision’s applicability has
increased to $161,000 and continues to be adjusted annually. See
Huntington Beach, Cal., Charter § 612(b).
OMNIPOINT V. CITY OF HUNTINGTON BEACH 11
Code §§ 65700, 65803, their legislative bodies “adopt general
plans which contain the mandatory elements” set by state law.
Id. § 65300; see also id. §§ 65302, 65700(b). The City has
established such a general plan, see Huntington Beach, Cal.,
Code § 201.06, and has also promulgated regulations to
implement its own zoning and subdivision code, id. § 201.02.
The City delegated the preparation and recommendation of
legislative land use determinations, such as amendments to
the general plan and zoning map, to a planning commission,
id. §§ 2.34.020, 202.10(D); see also id. §§ 247.08, 247.10,
subject to the City Council’s final authority to approve or
deny legislative determinations, id. § 202.10(A). The City
delegated its adjudicative land use decision-making authority
to administrative bodies, primarily the planning commission
and a zoning administrator. See id. § 202.10(D)–(E). These
administrative bodies adjudicate land use applications subject
to the City Council’s authority to act as a board of appeals.
Id. § 202.10(A).
The City’s decision-making process is subject to typical
administrative procedural requirements. As relevant here, the
planning commission, zoning administrator, or City Council
must render its decision on an application or appeal “in the
form of a written statement, minute order or resolution,”
which “shall be accompanied by reasons sufficient to inform
as to the basis for the decision.” Id. § 248.10(A). Further,
“[t]he reviewing body shall formulate its written findings
within five calendar days after the decision” and must provide
notice of its decision to the applicant and any other party that
requests such notice. Id. § 248.10(B), (C).
At the time of T-Mobile’s application in 2007, the City
Council had in place an ordinance establishing a procedure
for the adjudication of applications to construct and modify
12 OMNIPOINT V. CITY OF HUNTINGTON BEACH
wireless communication facilities within city limits. See id.
§ 230.96(C).3 Under the regulations, a person wishing to
install and operate a wireless communication facility, such as
an antenna, must submit a permit application to the Planning
and Building Department. Id. § 230.96(E)(1).4 After the
department confirms that the application is complete, the
applicant must obtain a wireless permit from the director of
the department or a conditional use permit from the zoning
administrator. Id. § 230.96(E)(2)–(3). The applicant can
appeal a denial of the permit to the planning commission. Id.
§ 230.96(E)(2)(d), (3)(c).5 The City Council is the final
arbiter of any appeal of the planning commission’s
adjudication of a permit application. Id. § 202.10(A).
B
In July 2007, T-Mobile submitted two applications to the
City’s Planning and Building Department for wireless permits
to construct wireless antennae in Harbour View Park and
Bolsa View Park. The applications identified the City as the
property owner of the parcel where the antennae would be
3
At the time of T-Mobile’s application, an earlier version of the
ordinance, Huntington Beach, Cal., Ordinance 3568, § 10 (Aug. 5, 2002),
was in effect. Because the subsequent amendments to this ordinance do
not change our analysis, we cite the current version of the ordinance to
avoid confusion.
4
The requirement that an application first be submitted to the Planning
and Building Department did not appear in the original ordinance. See id.
5
In the earlier version of the ordinance, § 202.10(D) of the zoning and
subdivision code established the planning commission’s authority to hear
appeals from the decisions of the director and zoning administrator. See
Huntington Beach, Cal., Code § 202.10(D).
OMNIPOINT V. CITY OF HUNTINGTON BEACH 13
located. Under the director’s authority, see Huntington
Beach, Cal., Code § 230.96(E)(2), the Planning and Building
Department approved T-Mobile’s requests for the two
wireless permits shortly thereafter, in August and September
2007.
After obtaining these permits, T-Mobile commenced lease
negotiations with the City, and ultimately entered into Site
License Agreements to lease space in each park for the
antennae. The agreements were executed by the City’s mayor
in December 2008 and approved unanimously by the City
Council in January 2009. Under the Site License
Agreements, the City, as owner of the property, authorized T-
Mobile to install and maintain its wireless facility on the
City’s premises, for which T-Mobile would pay a licensing
fee.
After obtaining the Site License Agreements, T-Mobile
applied to the City’s Building and Safety Department for
building permits to begin construction of the facilities. In its
applications, T-Mobile reported that the “Total Construction
Valuation” of the Bolsa View and Harbour View antennae
were $80,000 and $60,000, respectively. After the
department issued these building permits in April 2009, T-
Mobile began to construct the Harbour View site antenna.
After construction commenced at Harbour View, local
residents who opposed the construction commenced
aggressive protests that blocked activities at the site. T-
Mobile agreed to stop construction temporarily pending the
City’s efforts to resolve this unexpected public opposition. In
subsequent communications between T-Mobile and City
representatives, the City learned that the “total construction
value” of the projects that T-Mobile had reported on the
14 OMNIPOINT V. CITY OF HUNTINGTON BEACH
applications for building permits did not reflect the total
construction costs, which would substantially exceed
$100,000 for each antenna.
In April 2009, the City held a special meeting of the City
Council, at which residents spoke against the construction of
an antenna at the Harbour View location. At a subsequent
closed session, the City Council determined that, although T-
Mobile had valid land use and building permits and valid Site
License Agreements, T-Mobile still was required to obtain
voter approval under Measure C before it could proceed with
construction. Accordingly, on July 23, 2009, the City
Attorney sent T-Mobile a letter stating that the City
“continues to recognize the validity of the Site Licenses and
the Wireless Permits,” but because the construction costs for
each wireless facility exceeded $100,000, the City was
obliged to enforce Measure C. Therefore, the City Attorney
directed the Building and Safety Department to suspend the
building permits until T-Mobile obtained voter approval.
Instead of seeking voter approval, T-Mobile filed a
complaint in federal district court in May 2009 and moved for
preliminary injunctive relief to prevent the City from
requiring compliance with Measure C. T-Mobile argued that
the TCA barred the City from applying Measure C to T-
Mobile’s proposed projects. The City filed a motion to
dismiss on the ground that it had acted as a participant in the
market, rather than as a regulator, and therefore the “market
participant doctrine” shielded its decisions regarding the use
of its own property from federal preemption.
In October 2009, the district court denied the pretrial
motions submitted by T-Mobile and the City. First, it denied
T-Mobile’s motion for preliminary injunctive relief because
OMNIPOINT V. CITY OF HUNTINGTON BEACH 15
T-Mobile had not sufficiently demonstrated a likelihood of
irreparable harm. The court also rejected the City’s argument
that it could avoid the TCA’s preemptive effect because it had
acted as a market participant and not as a regulator, holding
that Measure C was a regulation in both form and substance.
T-Mobile and the City then filed cross-motions for partial
summary judgment. In July 2010, the district court denied
the City’s motion and granted T-Mobile’s motion in part.
The court held that the TCA required the City to process T-
Mobile’s applications for building permits within a
reasonable period of time, and to explain the reason for denial
of the applications in writing, supported by substantial
evidence. 47 U.S.C. § 332(c)(7)(B)(ii)–(iii). Because the
voter approval process required by Measure C did not meet
these procedural requirements, the court concluded that the
City could not use Measure C as a reason to deny T-Mobile’s
applications or to delay making a decision. The court gave
the City sixty days either to grant T-Mobile’s permit
applications, or to deny the applications in a manner that
complied with the procedural requirements of the TCA.
On remand from the district court, the City Council
followed the procedures set forth in the TCA to revoke the
permits for both antennae in August 2010.6 T-Mobile
challenged this permit revocation in a separate action,
Omnipoint Commc’ns d/b/a T-Mobile v. Huntington Beach,
6
In the November 2010 general election, the voters of Huntington
Beach disapproved construction of T-Mobile’s proposed antennae. On
November 12, 2010, the district court entered a final judgment granting T-
Mobile’s request for declaratory relief and denying its request for
injunctive relief pursuant to the July 9, 2010 order. The court also
dismissed T-Mobile’s remaining claims as moot.
16 OMNIPOINT V. CITY OF HUNTINGTON BEACH
C.D. Cal. Case No. CV10-1471-RGK (“T-Mobile II”), which
resulted in a settlement in March 2012 solely as to T-
Mobile’s application to construct an antenna at the Harbour
View site. The parties agreed that this action would proceed
with respect to T-Mobile’s application to construct an antenna
at the Bolsa View site.
On appeal, the City claims that the district court erred in
prohibiting it from delaying its decision on T-Mobile’s permit
applications until T-Mobile had obtained the approval of the
voters pursuant to Measure C. As it argued before the district
court, the City asserts that the TCA did not preempt its
decision to require compliance with Measure C, because the
market participant doctrine shields the City’s decisions about
use of its own property from federal preemption. In the
alternative, the City contends that its application of Measure
C is not preempted because it is consistent with the TCA’s
procedural requirements. On cross-appeal, T-Mobile claims
that the district court should have issued a permanent
injunction ordering the City to let T-Mobile resume
construction, and should not have remanded the case to the
City for reconsideration of T-Mobile’s permits. We have
jurisdiction under 28 U.S.C. § 1291.
III
Given our conclusion that the TCA preempts a local land
use authority’s legislative regulations if they fail to
incorporate the requirements of § 332(c)(7)(B)(i) and (iv),
and preempts its adjudicative decisions if the procedures for
making such decisions do not meet the minimum
requirements of § 332(c)(7)(B)(ii) and (iii), we begin with the
threshold question whether Measure C is such a regulation or
decision.
OMNIPOINT V. CITY OF HUNTINGTON BEACH 17
On its face, Measure C is not the sort of local land use
regulation or decision that is subject to the limitations of
§ 332(c)(7), but rather is a voter-enacted rule that the City
may not lease or sell city-owned property for certain types of
construction unless authorized by a majority of the electors.
Cf. Simons, 63 Cal. App. 3d at 468; Cal. Const. art. 11, § 5(a).
Unlike a legislative land use regulation, Measure C does not
classify public and private property or impose design and use
restrictions on the different classifications. Indeed, Measure
C does not prevent the City from agreeing to any sort of
construction or use of public land, provided that the City
obtains public approval. Nor was Measure C promulgated by
the local governmental authorities (i.e., the City Council or
Planning Commission) that are authorized by law to engage
in such legislative land use decision making. Measure C
simply provides a mechanism for the City, through the voters,
to decide whether to allow construction on its own land. It
does not regulate or impose generally applicable rules on “the
placement, construction, and modification of personal
wireless service facilities,” § 332(c)(7)(B)(i) and (iv), and so
the substantive limitations imposed by these subsections are
inapplicable.
Second, Measure C is not the sort of local land use
decision that fulfills an adjudicative function and that
therefore must meet the procedural constraints of
§ 332(c)(7)(B)(ii) and (iii). Rather, Measure C gives the
voters an unconstrained right to approve or disapprove a
proposed construction project on city-owned park lands, and
thus serves as a constraint on the City’s plenary power to
control the use of public lands. The voters need not consider
whether the project meets any particular criteria, and their
determination is not subject to review or appeal, unlike
adjudicative decisions by the City’s Planning Commission
18 OMNIPOINT V. CITY OF HUNTINGTON BEACH
and zoning administrator. Because Measure C merely
restrains the City’s actions as a property owner and does not
affect the City’s administrative procedures for approving or
denying a request “to place, construct, or modify personal
wireless service facilities,” § 332(c)(7)(B)(ii) and (iii), the
minimum procedural requirements established by these
sections are likewise inapplicable.
That the requirements imposed by Measure C are not part
of a local government’s zoning and land use decision-making
process is clear from the facts of this case. The City’s
adjudicative decision making in response to T-Mobile’s
applications was fully compliant with the TCA: both the
City’s Planning and Building Department and its Building
and Safety Department approved T-Mobile’s applications in
writing within a reasonable period of time. The City’s July
2009 letter to T-Mobile affirmed the validity of these
administrative decisions. But a building permit does not give
a builder the authority to begin construction on property
belonging to a third party; rather, the builder must secure the
third party’s permission. Here, the City’s authority to give
such permission via the Site License Agreement was limited
by Measure C. The Site License Agreement itself required T-
Mobile’s compliance with all “ordinances and regulations of
general application now in effect or subsequently enacted”
(which would include Measure C) as a condition of the
license. Thus, once it became clear that T-Mobile’s proposed
project triggered Measure C, T-Mobile lacked the necessary
land owner permission until Measure C’s requirements were
discharged. In other words, Measure C had an effect on
landowner approval, not on the City’s adjudicative process.
In sum, the voter-approval requirement imposed by
Measure C is outside the City’s framework for land use
OMNIPOINT V. CITY OF HUNTINGTON BEACH 19
decision making because it does not implicate the regulatory
and administrative structure established by the City’s general
plans and zoning and subdivision code. By its terms, the
TCA applies only to local zoning and land use decisions and
does not address a municipality’s property rights as a
landowner. Because the requirements imposed by Measure
C fall outside the TCA’s preemptive scope, the city charter
provision is not preempted by § 332(c)(7)(B).
The Second Circuit reached a similar conclusion in Sprint
Spectrum L.P. v. Mills, 283 F.3d 404, 407 (2d Cir. 2002). In
that case, a school district entered into a lease agreement
permitting Sprint to build an antenna on the roof of a public
high school, subject to specified limitations on levels of radio
emissions. Id. at 407–08. After Sprint informed the school
district that it would install equipment that exceeded those
limits, the district barred Sprint from commencing
construction. Id. at 410. Sprint sued, arguing that the school
district’s decision was preempted by § 332(c)(7)(B)(iv),
which prohibits local authorities from “regulat[ing] the
placement, construction, and modification of personal
wireless service facilities on the basis of the environmental
effects of radio frequency emissions.” 47 U.S.C.
§ 332(c)(7)(B)(iv).
The Second Circuit disagreed, holding that “the language
and structure of the TCA implicitly recognize that some
governmental decisions are not regulatory,” and thus are not
preempted by the TCA. Sprint Spectrum, 283 F.3d at 420.
Because § 332(c)(7)(B)(iv) does not preempt governmental
actions that involve the management of its own property, the
court concluded that the school district’s decisions relating to
leasing its roof was not preempted. Id. at 417–21.
20 OMNIPOINT V. CITY OF HUNTINGTON BEACH
As in Sprint Spectrum, the City’s exercise of its property
rights in accordance with Measure C here was non-regulatory
and non-adjudicative behavior akin to an action by a private
land owner. See id. Because the City’s determination that it
could not license T-Mobile’s use of the city-owned Bolsa
View Park without voter approval is not the type of zoning
and land use decision covered by § 332(c)(7), we conclude
that it was not preempted by that section.7 We reverse and
remand for proceedings consistent with this opinion.8
REVERSED AND REMANDED.
7
Because we decide on this basis, we need not address the City’s
argument that Measure C is not subject to preemption due to a free-
standing “market participant exception.” See Am. Trucking Ass’ns v. City
of L.A., 133 S. Ct. 2096, 2102 n.4, 2103–05 (2013) (holding that the Court
did not need to address whether “a freestanding ‘market-participant
exception’” limited the express terms of a preemption clause, because the
appellants had abandoned that argument, and concluding that the
regulation at issue was preempted by the plain terms of the federal
preemption clause).
8
Our disposition of the City’s appeal renders T-Mobile’s cross-appeal
seeking a permanent injunction moot.
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862 F.2d 870Unpublished 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.Nicholas Thomas SAVKO, Jr., Petitioner-Appellant,v.WARDEN, MARYLAND PENITENTIARY; Attorney General of theState of Maryland, Respondents-Appellees.
No. 88-7549.
United States Court of Appeals, Fourth Circuit.
Submitted: Aug. 16, 1988.Decided: Nov. 10, 1988.
Nicholas Thomas Savko, Jr., appellant pro se.
Valerie Watkins Loftin (Office of the Attorney General of Maryland), for appellees.
Before WIDENER, SPROUSE and WILKINSON, Circuit Judges.
PER CURIAM:
1
Nicholas Thomas Savko, Jr. seeks to appeal the district court's order refusing habeas corpus relief pursuant to 28 U.S.C. Sec. 2254. Our review of the record and the district court's opinion accepting the recommendation of the magistrate discloses that this appeal is without merit. Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the district court. Savko v. Warden, C/A No. 85-2995-JH (D.Md. Oct. 30, 1987). We dispense with oral argument because the dispositive issues recently have been decided authoritatively.
2
DISMISSED.
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177 F.2d 656 (1949)
PROCTOR
v.
UNITED STATES.
No. 10228.
United States Court of Appeals District of Columbia Circuit.
Argued October 3, 1949.
Decided October 17, 1949.
Mr. William E. Owen, Washington, D. C. (appointed by the District Court) for appellant.
Mr. Robert M. Scott, Assistant United States Attorney, Washington, D. C., with whom Messrs. George Morris Fay, United States Attorney, and Joseph M. Howard, Assistant United States Attorney, Washington, D. C., were on the brief, for appellee.
Before EDGERTON, PRETTYMAN and PROCTOR, Circuit Judges.
PER CURIAM.
This case presents the question whether voluntary drunkenness constitutes a defense *657 to a charge of unauthorized use of a vehicle, under § 2204 of Title 22, District of Columbia Code (1940), which provides, inter alia: "Any person who, without the consent of the owner, shall take, use, operate, or remove, * * * an automobile or motor vehicle, and operate or drive * * * the same * * * for his own profit, use or purpose shall be punished * * *."
No rule is more firmly established than that voluntary drunkenness is no defense for a criminal act, unless specific intent or knowledge is an element of the offense, when drunkenness may be shown to prove mental incapacity to form the specific intent.
It is contended here that the crime involves a specific intent to temporarily appropriate the vehicle for a use inconsistent with the rights of the owner. That, of course, is a necessary result the natural consequence of taking and using a vehicle without consent. But nothing in the statutory definition makes that result a special element of the offense itself. In our opinion, violation of the statute involves only a "general criminal intent," which may be presumed from doing the prohibited acts. This view, we think, does not conflict with the decision in Pennsylvania Indemnity Fire Corporation v. Aldridge, 1941, 73 App.D.C. 161, 117 F.2d 774, 133 A.L.R. 914. The judgment is
Affirmed.
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343 F.2d 839
Wallace GLICK, by his Next Friend, Bessie McGinty, and Bessie McGinty, Appellants,v.BALLENTINE PRODUCE, INCORPORATED, Appellee.
No. 17878.
United States Court of Appeals Eighth Circuit.
April 14, 1965.
Rehearing Denied May 10, 1965.
Elwyn L. Cady, Jr., Kansas City, Mo., made argument for appellants and filed brief.
Morris H. Kross, of Rogers, Field & Gentry, Kansas City, Mo., made argument and filed brief with Clay C. Rogers, of Rogers, Field & Gentry, Kansas City, Mo.
Before MATTHES and BLACKMUN, Circuit Judges, and REGISTER, District Judge.
MATTHES, Circuit Judge.
1
This action was instituted on April 17, 1963, in the United States District Court for the Western District of Arkansas by Wallace Glick, a minor, and Bessie McGinty (plaintiffs-appellants), Missouri citizens, seeking to recover damages from Ballentine Produce, Incorporated (defendant-appellee), an Arkansas corporation, having its principal place of business at Alma, Arkansas, for the wrongful death of Marvin Glick. The deceased was the father of Wallace and former husband of Bessie. Diversity of citizenship and the requisite amount in controversy confers jurisdiction.
2
Appellants alleged in their complaint that "Wallace Glick is the surviving heir at law of Marvin Glick"; that "Bessie McGinty was the lawful wife of Marvin Glick"; and that Bessie McGinty "is the Next Friend as the natural guardian of their son, plaintiff Wallace Glick." The complaint further alleged that: "On October 14, 1962, in a public highway, U. S. 71 By-Pass in Jackson County, Missouri, defendant's vehicle, being driven by an employee of defendant as agent in the scope of employment for defendant, was negligently caused to collide with a vehicle being driven by Marvin Glick, deceased."1 Appellants sought to recover pecuniary damages in the amount of $162,000 plus damage to their automobile in the sum of $4,000, or a total of $166,000.
3
On February 15, 1964, after the filing of the answer which incorporated a motion to make more definite and certain, appellee filed a motion for change of venue under 28 U.S.C.A. § 1404(a), contending that the accident upon which the cause of action was based occurred in Missouri; that the witnesses, investigating officers, physicians, and appellants were residents of that state; and that appellants had previously filed a suit in the Circuit Court of Clay County, Liberty, Missouri.2 After the submission of memoranda by both parties, and on February 25, 1964, the Court, Judge Miller, filed its memorandum opinion (unreported) sustaining the motion to transfer, and ordered the case transferred to the United States District Court for the Western District of Missouri.
4
The following proceedings transpired in the United States District Court for the Western District of Missouri (Judge Duncan).
5
On March 20, 1964, appellee filed a motion to dismiss the complaint for failure to state a cause of action or to state a claim upon which relief could be granted. On March 23, 1964, appellants filed a motion to retransfer the cause to the Arkansas district court. In disposing of the motions the Court filed a memorandum opinion holding inter alia that the complaint attempted to plead a common law action for the death of Marvin Glick, and that "there is no such thing as common law action for death in the State of Missouri." The Court found that the complaint did not state a cause of action on behalf of Bessie McGinty, the widow, because she had failed to appropriate her cause of action within six months from the death of the deceased as provided by § 537.080 V.A.M.S., and that the complaint "is also defective in many other respects." The Court took cognizance of the federal rule that a complaint should not be dismissed with prejudice unless the plaintiffs could prove no facts in support of their claim which would allow them to recover, and entered an order granting appellants twenty days to file an amended complaint. The motion to retransfer was denied.
6
Instead of filing an amended complaint, appellants filed a "motion to modify order" in which they reasserted that the substantive law of Arkansas was applicable. This motion was denied.
7
On October 1, 1964, and upon motion of appellee, the Court entered its order dismissing the action on the merits. It is from this judgment of dismissal that appellants have perfected their appeal to this Court.
8
Before reaching the basic question at issue in this case, we shall, by way of summary, set forth the distinguishing pertinent characteristics of the substantive law applicable in Arkansas and Missouri to wrongful death actions.
9
In both jurisdictions a cause of action for wrongful death, not cognizable at common law, arises only by virtue of the wrongful death statutes which must be strictly adhered to in determining who may institute an action within the time limits provided therein. Smith v. Missouri Pacific Railroad Co., 175 Ark. 626, 1 S.W.2d 48 (1927); Vines v. Arkansas Power & Light Co., 232 Ark. 173, 337 S. W.2d 722 (1960); Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889 (1943); Nelms v. Bright, 299 S.W.2d 483 (Mo. en banc 1957); Plaza Express Company v. Galloway, 365 Mo. 166, 280 S.W.2d 17 (1955).
10
Turning to the statutes, in Arkansas § 27-906, Ark.Stat.1947 Annotated, creates the cause of action; § 27-907 provides that the action shall be brought in the name of the personal representative of the deceased, and if there is no personal representative, then by the heirs of law of the deceased; § 27-909 provides for recovery of damages as will be fair and just compensation for pecuniary injuries sustained by the parties entitled thereto (no limit fixed) including mental anguish suffered by the surviving spouse and next of kin of the deceased person. Additionally, there are Arkansas cases in which recovery was allowed for the conscious physical pain and mental anguish endured by the deceased after he sustained the fatal injury. Compare, Chicago, R. I. & P. Ry. Co. v. Caple, 207 Ark. 52, 179 S.W.2d 151 (1944); Beaty v. Buckeye Fabric Finishing Co., 179 F. Supp. 688 (E.D.Ark.1959).
11
In Missouri, the cause of action is created by § 537.080 V.A.M.S.; and shall be commenced within one year after the cause of action accrues, § 537.100. The surviving spouse has the right to institute the action within six months after the death of the deceased. If there be no surviving spouse or he or she fails to sue within six months, the surviving minor child or children may institute the cause of action. If there be no surviving spouse, minor child or children, then suit may be instituted by the administrator or executor of the deceased. Forehand v. Hall, 355 S.W.2d 940 (Mo. 1942). The amount recoverable as damages is limited to $25,000. § 537.090 V.A.M.S.
12
From the inception of this case the issue has been whether the law of Arkansas or the law of Missouri is to be applied in determining (a) who has the right to institute and maintain the action, and (b) the amount that may legally be recovered as damages. No contention is made here concerning the propriety of Judge Miller's transfer of the case to the Missouri district court.
13
Appellants adamantly contend that "under modern conflict of laws approaches, Arkansas law must be applied because of the dominant contacts and significant relationship obtaining between this cause and the forum, Arkansas."3
14
Both the transferor and the transferee United States District Courts held, in effect, that regardless of the forum where the case is tried, Missouri law controlled the disposition and resolution of the above questions. We are in full accord.
15
It is fundamental that in diversity cases the federal courts, when deciding questions of conflict of laws, must follow the rules prevailing in the states in which they sit. Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); Klaxon Co. v. Stentor Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Griffin v. McCoach, 313 U.S. 498, 61 S.Ct. 1023, 85 L.Ed. 1481 (1941); Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); Tinnon v. Missouri Pacific Railroad Company, 282 F.2d 773, 775 (8 Cir. 1960).
16
Under the Arkansas conflict of laws rule the courts of that state look to the laws of the state where the tort occurred in determining who is entitled to recover and the amount recoverable. In Trotter v. Ozarks Rural Electric Coop. Corporation, 226 Ark. 722, 294 S.W.2d 498, 500 (1956), the Supreme Court of Arkansas stated: "Here it is conceded that the death of appellant's intestate occurred in Oklahoma, therefore, any right to recover and the measure of damages must be tested by the laws of that state," (citing cases). Wheeler v. Southwestern Greyhound Lines, 207 Ark. 601, 182 S. W.2d 214 (1944) was an action for wrongful death which occurred in Missouri. The court applied the Missouri wrongful death statute in determining whether the petition stated a cause of action. See also American Ry. Express Company v. Davis, 152 Ark. 258, 238 S. W. 50 (1922); Tipler v. Crafton, 202 Ark. 351, 150 S.W.2d 625 (1941); Leflar, Conflict of Laws, § 114 (1959); Restatement, Conflict of Laws, § 391 (1934).
17
We have carefully examined the Van Dusen case, supra, 376 U.S. 612, 84 S.Ct. 805, which appellants urge upon us in support of their theory that Arkansas law must be applied. We do not regard the opinion as standing for this proposition. True it holds that in cases where the defendant seeks transfer, the transferee district court is obligated to apply the state law that would have been applied if there had been no change of venue, id. 639, 84 S.Ct. 805. Here, the transferor Arkansas district court properly held that Missouri law controlled and the transferee Missouri district court properly applied the same law.
18
Application of Missouri law convinces that the complaint failed to state a cause of action and is fatally defective. Appellants do not contend otherwise. In fact, in their motion to retransfer the case to the Arkansas federal court, they stated: "* * * Mrs. McGinty does not have a right to bring an action in this Court as administratrix * * *. Present Missouri law does not authorize such procedure."
19
In Nelms v. Bright, 299 S.W.2d 483, 487 (1957), the Missouri Supreme Court, en banc, in considering the essential elements of a cause of action under the wrongful death statute, reiterated the rule previously announced in Chandler v. Chicago & A. R. Co., 251 Mo. 592, 600-601, 158 S.W. 35, 37 (1913):
20
"`A party suing under the [wrongful death] statute referred to must bring himself in his pleading and proof strictly within the statutory requirements necessary to confer the right. Otherwise his petition states no cause of action, and his proof is insufficient to sustain his judgment. Only such persons can recover (and in such time and in such manner) as the letter of the law prescribes. Only such persons may sue as the statute permits, and they alone can sue. * * * It must "be conceded that the section reserves to itself the exclusive power of naming those who can maintain the action and of fixing the time in which each of the enumerated persons could sue."'" (Emphasis supplied).
21
In accord are the Arkansas cases of Tipler v. Crafton, supra, and Wheeler v. Southwestern Greyhound Lines, supra.
22
As we have seen, Bessie McGinty, widow and administratrix, and Wallace Glick, the minor son, filed the action jointly to recover damages for the alleged wrongful death in the amount of $162,000. There is no authority in Missouri law to support a joint cause of action by the widow and minor child or children. Under the Missouri wrongful death statute, § 537.080, the widow alone has the first right to sue. If she fails to appropriate her right within six months after the death of her husband, the minor child or children have the next six months in which to institute the action. In Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920, 930 (1933), the Missouri Supreme Court, en banc, reviewed the history of the Missouri Act, and stated among other things:
23
"The statute provides for but one cause of action * * *.
24
* * * * * *
25
"Whether the widow or the children have the right to enforce this cause of action, it remains the same cause of action and passes from one beneficiary to another. They do not have a joint cause of action nor concurrent causes of action * * *." (Emphasis supplied).
26
Because of the time limitation built into the statue for each of the designated parties, it is an essential element of the cause of action that the date of the death be pleaded, otherwise it cannot be determined whether the plaintiff has capacity to maintain the action. That was not done here although, as indicated, this date appears from the letters of administration that were attached to the amendment to the complaint.
27
The petition is also defective in alleging that appellants were damaged in the amount of $162,000. The limit of recovery is $25,000.
28
From what has transpired, we believe Judge Duncan was justified in concluding that "the sole reason for attempting to maintain the action in Arkansas is [because] the laws of that jurisdiction are more favorable to the elements of damage than * * * the laws of Missouri." Appellants concede as much. Although they seemingly have recognized from the beginning that their complaint was deficient under Missouri law, they obstinately refused the opportunity to amend their complaint to state a cause of action. Perhaps they are more desirous of attempting to establish a new principle. Be that as it may, on this record and in light of the controlling legal principles, we are required to affirm the judgment of dismissal.
29
Affirmed.
Notes:
1
Although the complaint failed to allege the date of death of the deceased, Marvin Glick, in an amendment thereto filed February 17, 1964 at the direction of the court, appellants stated:
"Further, said Bessie McGinty is the duly qualified administratrix of the estate of Marvin Glick, deceased, in accordance with the Letters of Administration granted to said Bessie Lee Stamper Glick (McGinty), which letters are attached hereto as `Exhibit X.'"
The Letters of Administration, issued by the Probate Court of Jackson County, Independence, Missouri, on November 14, 1962, reveal that Marvin Wayne Glick died on October 14, 1962.
2
In the Missouri state court action Ballentine Produce, Incorporated, appellee here, is one of the defendants. In that action Wallace Glick, one of the appellants here, is a plaintiff, and as in this case, he is seeking to recover damages, but not against Ballentine, for the loss of his father in the amount of $162,000. Bessie McGinty seeks damages from Ballentine and others in that action for loss of her minor sons, Philip and Robert, in the amount of $100,000 for each. The petition in that case alleges that Philip and Robert were also killed in the same collision forming the basis for this action
3
Appellants' cited authority for their position is Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964)
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321 F.2d 749
116 U.S.App.D.C. 136
G. S. LEONARD, Appellant,v.John W. DOUGLAS, Assistant Attorney General, and Robert F.Kennedy, Attorney General, Appellees.
No. 17529.
United States Court of Appeals District of Columbia Circuit.
Argued June 5, 1963.Decided June 26, 1963, Petition for Rehearing En Banc DeniedSept. 25, 1963.
Mr. Arthur M. Becker, Washington, D.C., with whom Mr. George S. Leonard, Washington, D.C., was on the brief, for appellant.
Mr. Howard E. Shapiro, Attorney, Department of Justice, with whom Asst. Atty. Gen. Douglas, Messrs. David C. Acheson, U.S. Atty., and Alan S. Rosenthal, Attorney, Department of Justice, were on the brief, for appellees.
Before FAHY, WASHINGTON and McGOWAN, Circuit Judges.
FAHY, Circuit Judge.
Appellant sued the Attorney General, Assistant Attorney General Orrick, now resigned,1 and the Chairman and Members of the Civil Service Commission, appellees, for declaratory and injunctive relief to retrive the position in the Department of Justice from which he had been discharged. The District Court dismissed his complaint on appellees' motion for summary judgment. He appeals, but we affirm the judgment.
1
Appellant is an attorney whose professional competence is not questioned. After service in the Navy during World War II, thus acquiring a preference eligibility for Government service within the meaning of the Veterans' Preference Act, he obtained employment in September 1953 as an attorney in the Department of Justice, Civil Division. His position was that of First Assistant, graded as GS-16, later raised to GS-17. Before he took this position the Civil Service Commission under the authority of an Executive Order of President Eisenhower, No. 10440, dated March 31, 1953, had placed the position in Schedule C as an excepted position of a confidential or policy-determining character. The Commission published a list of such Schedule C positions, including that to which appellant thereafter was appointed. See 18 F.R. 2493 of April 29, 1953. An 'excepted' position is not in the classified or competitive civil service, and is sometimes referred to as 'outside the competitive civil service.'
2
Appellant remained in the position of First Assistant to the Assistant Attorney General, Civil Division, from September 1, 1953, until the events which culminated in the removal he is now contesting. Those events began some years later, in 1961, after William H. Orrick, on appointment of President Kennedy, had become Assistant Attorney General of the United States in charge of the Civil Division. About May or June of 1961, Mr. Orrick advised appellant that prior to September 1 of that year, when proposed changes in the organization of the Civil Division were to become effective, he would select another attorney to replace appellant as his First Assistant. Efforts to obtain appellant's consent to accept another position failed. On September 18, 1961, Mr. Orrick wrote appellant in part as follows:
3
'It is inherent in the character of a policy-determining position that the incumbent thereof shall be an individual suitable to his superiors and a person whom they consider best able to determine the policies of their department or agency.'
4
The letter continued to the effect that this relationship did not exist between appellant and Mr. Orrick in the latter's capacity as Assistant Attorney General of the United States in charge of the Civil Division, and for that reason he proposed to effect termination of appellant's employment on or about October 20, 1961. He added that an Assistant Attorney General in charge of the Civil Division was entitled to have the services of an assistant who meets the prerequisites for serving him, as appellant's services had been obtained by Mr. Orrick's predecessor, and this was substantially prevented by appellant's continued occupancy of the position. Appellant was assured that full consideration would be given to any reply and support therefor which would be submitted.
5
Appellant answered that his position was not open to political appointment, asserting further that it was an excepted career position in the unclassified civil service, so that removal could be only upon a showing of such cause as would promote the efficiency of the service. He further answered that even if a charge of 'unsuitability' were inferred it would not be valid cause as a subjective opinion, not resting upon lack of professional qualifications or failure in the performance of duty. He denied that such inferred charge of unsuitability was in fact true.
6
Under procedures which had been established by Attorney General Kennedy's predecessor, Attorney General Rogers, it appeared that only the Attorney General could effect appellant's removal. Appellant requested a reasonable opportunity to discuss his side of the case with the Attorney General. On October 23, 1961, the Attorney General permitted appellant personally to present his objections to him. Thereafter, October 26, 1961, the Attorney General informed appellant by letter that he had given careful consideration to his written answer with its supporting material, to Mr. Orrick's letter of September 18, and to appellant's oral presentation to the Attorney General on October 23, and had decided that for the reasons stated in Mr. Orrick's letter appellant's separation 'will promote the efficiency of the service.' He advised appellant that he would be removed from his position at the close of business October 27. This was accomplished by a Notification of Personnel Action of that date.
7
Appellant appealed to the Appeals Examining Office of the Civil Service Commission. Having waived his right to a hearing his case was submitted on affidavits and briefs. This Office sustained the removal as having been accomplished in compliance with the Veterans' Preference Act and the Commission's regulations. On appeal to its Board of Appeals and Review the Commission May 11, 1962, affirmed. In the meantime suit had been filed in the District Court, proceedings in which were stayed pending Civil Service Sommission action, and renewed thereafter.
8
The question is whether 'such cause as will promote the efficiency of the service,' the controlling language of Section 14 of the Veterans' Preference Act, precludes discharge for the cause here given, that is, the need of the Assistant Attorney General of the United States, in which the Attorney General concurred, to have as his First Assistant someone he deemed suitable in the special relationship which existed, with its policy-making responsibilities. The relationshp of the Assistant Attorney General to the Attorney General is part of the problem. The latter is not only the chief law officer of the Government of the United States for law enforcement purposes; he is a member of the Cabinet and must be available to advise the President as counsellor on matters involving policy as well as law. The present times bear witness that methods of law enforcement may appropriately be influenced by a choice available among several possible courses of action, all of which may be deemed to be within the law. Legal competence, which it is not denied appellant possessed, is not the only qualification for one holding high legal office with policy-making responsibility. Cause for a removal which would promote the efficiency of the service must be gauged by the nature of the particular service involved as well as by the competence of the employee. The First Assistant may at any time become Acting Assistant Attorney General of the United States, thus standing directly beside the Attorney General in many matters of policy affecting the intricate and widespread operations of the Department and of the Government. Not only this, but in his own responsibility also the Assistant Attorney General needs as his First Assistant someone in whom he can confide, and to whom he can turn with trust in his judgment as well as in his legal ability. It is no reflection upon appellant to hold that the record in this case shows that this important relationship did not exist between him and Mr. Orrick, and that his replacement for this cause would promote the efficiency of the service. As was pointed out by the Civil Service Commission in its opinion cause justifying loss of a position by one having a veterans preference is not confined to cause growing out of 'inadequate conduct or performance,' as appellant contended.2
9
We may well recognize that ordinarily in the absence of such circumstances as the Commission refers to, inadequate conduct or performance is the cause contemplated by the Act. But this is not to say that Congress intended to preclude the construction of the Act placed upon it is this case by the Commission, the agency charged with special responsibility in its administration. The purposes of the Act do not seem to us to be threatened by construing it to permit the Attorney General to remove one, though he be a competent attorney and a preference eligible, as a First Assistant because he does not meet the qualifications incident to the confidential and policy-making characteristics of the position.
10
Congress did not attempt a definition of 'cause,' providing only that it must be one that would promote the efficiency of the service. Some latitude was thus left to those responsible for administering the Act. Faithfulness to its purpose to reward those who served in the armed forces by granting a protective preference must be maintained. But the preference granted does not protect a veteran in a position when removal therefrom, viewed in the light of competing policies and all the circumstances, can reasonably be said to lead to increased efficiency in highly placed governmental operations.
11
Considering the nature of the position here involved, with the cause found for terminating appellant's occupancy of it, we are unable to read into the Act a barrier to the action taken. The congressional language does not so require. It easily bears the construction placed upon it by the Attorney General, the Commission, and the District Court, and we think that construction, which is clearly consistent with the language of the Act, cannot be said in the context of this case to be inconsistent with the congressional intent in choosing that language.
12
Affirmed.
1
Assistant Attorney General Douglas has actually replaced Mr. Orrick since the latter resigned to become a Deputy Undersecretary of State
2
'On this point the Board (of Appeals and Review of the Commission) notes that the personnel actions subject to Section 14 of the Veterans' Preference Act * * * are discharge, suspension for more than thirty days, furlough without pay, and reduction in rank or compensation and that Section 14 does not distinguish among these different personnel actions insofar as proper cause for taking them is concerned. * * * And it would be patently absurd to hold, for example, that Congress intended furloughs without pay be effected only upon a showing of inadequate conduct or performance. * * * Neither does the term, 'charge,' in Section 22.203 of the Commission's regulations denote that the charges referred to must necessarily be charges of inadequate conduct or performance as distinguished from any other charges, for example, of legal disqualification, which can support a finding that an adverse personnel action will promote the efficiency of the servicel.'
From the letter of the Chairman, Board of Appeals and Review, dated May 11, 1962, affirming the decision of the Appeals Examining Office.
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686 F.Supp. 520 (1988)
F. John BELNOMI
v.
SONOCO PRODUCTS COMPANY.
Civ. A. No. 88-3241.
United States District Court, E.D. Pennsylvania.
May 25, 1988.
Dennis D. Brogan, West Chester, Pa., for plaintiff.
Ronald H. Surkin, Philadelphia, Pa., for defendant.
MEMORANDUM AND ORDER
FULLAM, Chief Judge.
Plaintiff commenced this lawsuit by filing a complaint in state court on April 4, 1988 asserting a claim for disability retirement benefits pursuant to the "Retirement Plan for Members of the Bargaining Unit of the Sonoco Products Company Packaging Division, Downingtown, Pennsylvania" ("Pension Plan"). Defendant removed the action to this court on April 18, 1988. Defendant now moves for dismissal of the complaint or, alternatively, for summary judgment.
Plaintiff began working for Sonoco in 1955. On May 1, 1957, plaintiff became a participant in a pension plan established by Sonoco. On July 15, 1974, plaintiff became totally and permanently disabled. Plaintiff was discharged from Sonoco's employment on June 30, 1976, after 19 years and 2 months service to the company.
According to plaintiff, the Pension Plan entitles a participant who becomes permanently and totally disabled and who has accumulated 15 years of service to the company to receive disability benefits once he attains the age of 50. Plaintiff, who accumulated more than 15 years of service before becoming disabled in 1974, turned 50 on April 3, 1982. Plaintiff therefore asserts *521 that as of April 3, 1982, he became entitled to disability benefits under the Pension Plan, which the company has refused to pay him.
In November 1979 and again in September 1981, plaintiff's counsel wrote to Sonoco and presented plaintiff's interpretation of the relevant sections of the Pension Plan. In his September 1981 letter, counsel wrote that since plaintiff would be 50 years old on April 3, 1982, plaintiff "expected" that he would be entitled to receive disability benefits at that time. Plaintiff's counsel asked that Sonoco respond with "written confirmation" of plaintiff's future entitlement. In a letter dated October 14, 1981, Sonoco informed plaintiff that the Retirement Committee had rejected plaintiff's interpretation of the Pension Plan and that plaintiff would not be entitled to receive disability benefits after April 3, 1982. In the Committee's view, although plaintiff had satisfied the 15-year service requirement, plaintiff would not qualify for disability benefits since he had not attained the age of 50 before becoming disabled.
Defendant argues that plaintiff's suit is barred by the applicable statute of limitations. This defense requires that the court determine when plaintiff's cause of action for unpaid, but allegedly currently-owed, pension benefits accrued. The parties have suggested different dates.
Defendant contends that at the very latest, plaintiff's claim for disability benefits accrued in October 1981 when Sonoco informed plaintiff that the Retirement Committee had repudiated plaintiff's gloss of the Pension Plan and decided that plaintiff was not entitled to receive disability benefits after April 3, 1982. On the other hand, plaintiff apparently believes that a new cause of action accrues as each monthly pension payment becomes due. Since plaintiff alleges that he should have been paid disability benefits under the Plan beginning April 3, 1982, plaintiff contends that this suit, filed April 4, 1988, is timely since a six-year statute of limitations applies and since April 3, 1988 fell on a Sunday.[1]
Both sides are mistaken. As defendant has pointed out, an action under 29 U.S.C. § 1132(a)(1)(B) for unpaid pension benefits arises when the fiduciary of the pension plan denies a plaintiff's application for benefits. Paris v. Profit Sharing Plan, Etc., 637 F.2d 357, 361 (5th Cir.1981); Miles v. New York State Teamsters Conference, 698 F.2d 593 (2d Cir.1983). Thus, plaintiff's contention that a claim under § 1132(a) arises as each pension payment becomes due clearly is off the mark.
Yet, although defendant has accurately stated the accrual principle in actions to recover pension benefits under 29 U.S.C. § 1132(a)(1)(B), defendant misconstrues the nature of plaintiff's inquiries to the Retirement Committee in 1979 and 1981. The Retirement Committee did not deny plaintiff's application for benefits in either 1979 or 1981 for the simple reason that plaintiff had not yet applied to the committee for benefits.
Since plaintiff was not yet entitled to disability benefits under any possible interpretation of the Plan, plaintiff's letters in 1979 and 1981 should be regarded as nothing more than requests that the company offer its interpretation of the Plan. The idea that plaintiff could apply for benefits in either 1979, 1981 or indeed anytime before April 3, 1982 is nonsensical since even if plaintiff were correct that the Plan entitled him to benefits at age 50, it would not have been clear whether he would ever *522 ultimately qualify for those benefits until he actually turned 50.
According to defendant, plaintiff's inquiries by letter in November 1979 and September 1981 constituted applications for benefits, and when the company communicated the Retirement Committee's response, plaintiff's cause of action for pension benefits accrued. But even though ERISA allows a plan participant to sue to "clarify his rights to future benefits under the terms of the plan ..." 29 U.S.C. § 1132(a)(1)(B), a suit to clarify future benefits is different than and distinct from a suit to recover currently-owed pension benefits. See Janowski v. International Brotherhood of Teamsters, 673 F.2d 931, 935 (7th Cir.1982). Indeed, one court has decided that the exhaustion doctrine, which applies in actions for current benefits, has no place in an action to clarify rights to future benefits. See id.
In this case, plaintiff has suggested at least since 1979 that the Plan entitles him to disability benefits from his 50th birthday. Plaintiff likely could have brought a declaratory action prior to his 50th birthday to clarify his entitlement to future benefits. See id.; Chambless v. Masters, Mates & Pilots Pension Plan, 571 F.Supp. 1430, 1437-39 (S.D.N.Y.1983) (noting ERISA's liberalized ripeness requirements). Such a suit, arguably, would not have been subject to the exhaustion doctrine. See Janowski. But rather than filing a suit for a declaratory judgment, plaintiff waited until after he had turned 50 to file a suit asserting his right to receive current benefits. Since he sues for current benefits, plaintiff clearly must satisfy the exhaustion doctrine, i.e., not only must plaintiff actually apply for pension benefits and be denied, but he must then exhaust all internal appellate procedures under the Plan before he may file suit in federal court to recover those benefits. Wolf v. National Shopmen, 728 F.2d 182, 185 (3d Cir.1984). Since the complaint nowhere mentions that plaintiff has actually applied for current benefits, nor suggests that plaintiff has pursued internal appellate procedures under the Plan, the complaint will be dismissed because under these circumstances, it is entirely premature.
NOTES
[1] Both parties believe that since 29 U.S.C. § 1132(a) fails to specify a limitations period, the court should borrow the most appropriate state law limitations period. See, e.g., Ferguson v. Greyhound Retirement and Disability Trust, 613 F.Supp. 323 (W.D.Pa.1985) (applying Pennsylvania's statute of limitations pertaining to contracts to a civil action to recover benefits). The parties disagree, however, whether a six-year or a four-year state law limitation period applies. However, even assuming that the parties are correct and that this court should try to determine which state law statute of limitations is most analogous, but see, e.g., In re Data Access Systems Securities Litigation, 843 F.2d 1537 (3d Cir.1988), I need not decide which limitations period is applicable since I have concluded that the plaintiff's action for current benefits is entirely premature. See infra.
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