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26 B.R. 131 (1983)
In re GRANADA WINES, INC., Debtor.
Bankruptcy No. 82-577-HL.
United States Bankruptcy Court, D. Massachusetts.
January 7, 1983.
*132 Vincent J. DiMento, DiMento & Sullivan, Boston, Mass., for Granada Wines, Inc., debtor.
Robert M. Gargill, Choate, Hall & Stewart, Boston, Mass., for Billmar, Inc.
Ilene Robinson, Grady, Dumont & Dwyer, Boston, Mass., for the New England Teamsters and Trucking Industry Pension Fund.
MEMORANDUM ON OBJECTION OF NEW ENGLAND TEAMSTERS AND TRUCKING INDUSTRY PENSION FUND TO CONFIRMATION OF AMENDED PLAN OF REORGANIZATION
HAROLD LAVIEN, Bankruptcy Judge.
The New England Teamsters and Trucking Industry Pension Fund (Pension Fund) has objected to the confirmation of the Amended Plan of Reorganization of Granada Wines, Inc. (Granada). The Pension Fund objects to the treatment of its claim under the plan.[1] The Pension Fund filed a proof of claim for $248,614 as a general unsecured claim. This claim represents the withdrawal liability incurred by Granada when it withdrew from the Pension Fund and ceased making contributions. The liability arises pursuant to the Multi-Employer Pension Plan Amendments Act (P.L. 93-364) (MPPAA) amending the Employee Retirement Income Security Act (ERISA), which provides that if a withdrawal occurs, the plan must determine the amount of the employer's liability. 29 U.S.C. §§ 1381, 1382. There is no dispute that the debtor has incurred a withdrawal liability. The dispute is whether under ERISA the Pension Plan's claim should be allowed to a maximum of 50% as the debtor argues, or in full as the Pension Fund argues.
The reorganization plan provided that general unsecured creditors would receive a 30% distribution on their allowed claims whereas the Pension Fund would only receive 15% of its claim. The debtor relies on 29 U.S.C. § 1405(b) in claiming that it is only liable for 50% of the Pension Fund's claim. Section 1405(b) sets out various limitations on withdrawal liability. Because this is an issue of statutory interpretation and Congressional intent, it is necessary to examine the following provisions of Section 1405:
29 U.S.C.
§ 1405. Limitation on withdrawal liability
(a)(1) In the case of bona fide sale of all or substantially all of the employer's assets in an arm's-length transaction to an unrelated party (within the meaning of section 1384(d) of this title), the unfunded vested benefits allocable to an employer (after the application of all sections of this part having a lower number designation than this section), other than an employer undergoing reorganization under Title 11, or similar provisions of State law, shall not exceed the greater of
(A) a portion (determined under paragraph (2)) of the liquidation or dissolution value of the employer (determined after the sale or exchange of such assets), or
(B) the unfunded vested benefits attributable to employees of the employer.
(2) * * *
*133 (b) In the case of an insolvent employer undergoing liquidation or dissolution, the unfunded vested benefits allocable to that employer shall not exceed an amount equal to the sum of
(1) 50 percent of the unfunded vested benefits allocable to the employer (determined without regard to this section), and
(2) that portion of 50 percent of the unfunded vested benefits allocable to the employer (as determined under paragraph (1)) which does not exceed the liquidation or dissolution value of the employer determined
(A) as of the commencement of liquidation or dissolution, and
(B) after reducing the liquidation or dissolution value of the employer by the amount determined under paragraph (1).
(c) * * *
(d) For purposes of this section
(1) an employer is insolvent if the liabilities of the employer, including withdrawal liability under the plan (determined without regard to subsection (b) of this section), exceed the assets of the employer (determined as of the commencement of the liquidation or dissolution), and
(2) the liquidation or dissolution value of the employer shall be determined without regard to such withdrawal liability. (emphasis added)
Section 1405(a) which provides a limitation on liability when there is a bona fide sale of all or substantially all of the assets is explicitly made inapplicable to Chapter 11 reorganizations.
Granada claims that it was insolvent when it withdrew from the Pension Plan and therefore under 29 U.S.C. § 1405(b) its termination liability is limited to 50%. Although Granada may have been insolvent when it withdrew from the plan, it is not undergoing liquidation or dissolution as provided in Section 1405(b). In fact, Granada has been reorganized under Chapter 11, its plan having been funded by a solvent entity. The debtor will continue as a wine distributor although it will not continue some of its past operations. In interpreting the words of a statute, the Court should adopt the literal or usual meaning of words unless that meaning would lead to absurd results. See Trans Alaska Pipeline Cases, 436 U.S. 631, 643, 98 S.Ct. 2053, 2061, 56 L.Ed.2d 591 (1978); Commissioner v. Brown, 380 U.S. 563, 571, 85 S.Ct. 1162, 1166, 14 L.Ed.2d 75 (1965). The plain meaning of liquidation or dissolution is that a corporation is going to cease to do business, its assets are to be sold off, and its existence will have become but a memory. This debtor hopes to survive and continue to do business.
The legislative history quoted by the debtor actually supports the Pension Fund. "To qualify for this rule [the § 1405(b) limitation], an insolvent employer need not undergo a formal liquidation or dissolution. It must, however, be insolvent and wind up its business affairs." Joint Explanation of S. 1076: MultiEmployer Pension Plan Amendments Act of 1980, 126 Cong.Rec. S. 10117, 96th Cong. (2nd Sess.) (Daily Ed., July 29, 1980). The debtor argues that since its post-confirmation operations will be substantially changed in that it will no longer employ its own sales or transportation forces, it has wound up its business affairs. Surely contraction for greater efficiency is a sign of management working for survival not surrender. In fact, during the Chapter 11, the case came very close to being converted to a Chapter 7 liquidation because it was not operating and the losses were increasing due to rent and spoilage of inventory. However, the case remained in Chapter 11 because Granada had considerable value as an operating distributor of wines and other alcoholic beverages as was shown by the eventual confirmation of a plan with a deposit of over $1,000,000. Granada will continue to operate as a wholesale distributor of wines and other alcoholic beverages. I find that 29 U.S.C. § 1405(b) is not applicable to the facts of this case and therefore the Pension Fund's claim will be allowed in full.
*134 The allowance of the claim in full is in keeping with the Congressional intent to create and maintain a viable pension system by placing the costs of pension withdrawals on the employers who cause the termination liability to be placed on the fund. The 50% limitation like the Pension Benefit Guaranty Corporation's 30% of net worth limitation, 29 U.S.C. § 1362, and the nonrecognition of penalties in Chapter 7 liquidations, see 11 U.S.C. § 726(a)(4) and § 724(a), are attempts to balance the competing interests of creditors. In Chapter 7, any increase in liability is borne by the creditors instead of the debtor who is responsible for the termination. However, the same rationale does not apply in Chapter 11 where the continuance of the debtor tends to place the cost where it belongs. After all, the continuing debtor can avoid the termination liability by reactivating the pension plan.
The debtor's argument that the cramdown provision in 11 U.S.C. § 1129(b)(2)(B)(ii) should permit it to only distribute 15% on the Pension Fund's claim is wrong. The Pension Fund has a general unsecured claim and the debtor is not permitted to unfairly discriminate against a member of the unsecured class. 11 U.S.C. § 1123(a)(4). Once the Court has determined the allowed amount of the Pension Fund's claim, the Fund must be treated the same as the other general unsecured creditors.
The debtor's argument that the Pension Fund should be estopped from asserting its claim because it did not raise the objection prior to the confirmation hearing has no basis. The Order approving the disclosure statement and plan provided that objection to confirmation had to be filed by December 6, 1982, at 5:00 P.M. The Pension Fund filed its objection to confirmation on December 2nd, well within the time limit. It would be absurd and unfair for this Court to penalize a creditor because that creditor participated in the process of approving the disclosure statement. The Code does not provide that the creditor must reveal any objection it may have prior to the hearing on confirmation.
Based upon the above rulings of law, the Pension Fund's unsecured claim for withdrawal liability will be allowed as submitted. Additionally, the Fund is entitled to receive the same distribution on its claim as the other general unsecured creditors.
NOTES
[1] Granada has agreed that it will pay the Pension Fund claim as finally allowed by this Court. In light of that agreement, a confirmation order was entered on December 23, 1982.
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306 F.2d 801
Robert H. DAVIS, Appellant,v.BOARD OF PAROLE OF the DEPARTMENT OF JUSTICE OF the UNITED STATES, Appellee.
No. 16933.
United States Court of Appeals District of Columbia Circuit.
Submitted June 14, 1962.
Decided June 28, 1962.
Mr. Charles Bragman, Washington, D. C., submitted on the brief for appellant.
Asst. Atty. Gen. Burke Marshall, Messrs. David C. Acheson, U. S. Atty., and Harold H. Greene, Attorney, Department of Justice, submitted on the brief for appellee.
Before FAHY, DANAHER and BASTIAN, Circuit Judges.
PER CURIAM.
1
This is an appeal from an order of the District Court dismissing on motion of the Board of Parole of the Department of Justice of the United States, defendant in the District Court, a complaint for a declaratory judgment and mandatory injunction. The order recited that it appeared to the court that it should not exercise its discretion to entertain the complaint. The plaintiff, our appellant, is a prisoner in the Federal Penitentiary at Atlanta, Georgia. By his suit he seeks a determination, with consequent relief, that he has served one-third of the sentence imposed upon him by the United States District Court for the Southern District of Florida, and that he is therefore eligible to apply to the Board and be considered for parole, a position which the Board has declined to entertain. His claim that he has served one-third of his sentence is based upon his position that the Judgment and Commitment of the sentencing court, which in terms refers to his sentences as "consecutive," should be construed as "concurrent" in view of oral statements of the sentencing court made at the time of sentencing.
2
That a "judicial discretion" resides in the court not to entertain a suit for a declaratory judgment is well settled. The subject was recently discussed in the opinion of the Supreme Court in the case of Public Affairs Associates, Inc. v. Rickover, 369 U.S. 111, 82 S.Ct. 580, 7 L.Ed.2d 604.
3
Since the interpretation or correction of the Judgment and Commitment, or of the sentences, of the court which tried and sentenced appellant, is obviously more appropriate for that court than for the District Court of this jurisdiction, cf., e. g., Rule 36 Fed.R. Crim.P., 18 U.S.C.A., our District Court properly exercised its discretion not to entertain the complaint.
4
Affirmed.
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933 F.2d 1021
U.S.v.Beasley*
NO. 90-7147
United States Court of Appeals,Eleventh Circuit.
APR 30, 1991
1
Appeal From: M.D.Ala.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
Nos. 97-2106/2107
___________
Mark A. Stolzenburg, *
*
Appellant/Cross-Appellee, *
*
v. * Appeals from the United States
* District Court for the Eastern
Ford Motor Company, * District of Missouri.
*
Appellee/Cross-Appellant. *
___________
Submitted: March 9, 1998
Filed: April 30, 1998
___________
Before BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
MONTGOMERY,1 District Judge.
___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.
This suit arises from a number of decisions that the Ford Motor Company made
not to promote Mark Stolzenburg, then an employee of almost twenty years, to a more
senior managerial position. Mr. Stolzenburg alleges, first, that, shortly after his fortieth
birthday, Ford removed him from "Private Salary Role" (PSR) status and designated
him as "Appropriately Placed" (AP), which meant at best that he was presumptively
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota, sitting by designation.
ineligible for further advancement within the company, and, second, that a number of
younger and less qualified individuals were preferred to him. Mr. Stolzenburg claims
that all of these decisions, including his AP designation, were made in violation of the
Age Discrimination in Employment Act (ADEA), see 29 U.S.C. §§ 621-634, and the
Missouri Human Rights Act, see Mo. Ann. Stat. §§ 213.010-213.137.
Although a jury found that four of the seven acts of which Mr. Stolzenburg
complained were motivated by age, and the trial court entered judgment in his favor,
Mr. Stolzenburg appeals, seeking the reversal of a partial summary judgment entered
against him and a new trial on the issues of willfulness and punitive damages.
Mr. Stolzenburg also seeks modification of the relief that the trial court ordered. Ford
cross-appeals, claiming that the jury's answer to one interrogatory, the answers to the
other interrogatories notwithstanding, precluded judgment against it.
I.
All management employees at Ford (those at grade 9 and higher) receive an
annual assessment of their performance and their potential for promotion. This review
serves as an opportunity to give employees feedback on their performance and to
identify and promote employees from within the lower tiers of management. Good
performance evaluations are critical to an employee's advancement at Ford.
Mr. Stolzenburg has been continuously employed in the Parts and Services
Division of Ford since May 9, 1972. Throughout his first fourteen years with Ford, he
advanced steadily and performed successfully in progressively more responsible
positions. In 1978, he was promoted to district field services manager (FSM) for
Buffalo, New York, a lower-management, grade 9 position. Later, he was transferred
to Ford's Dearborn, Michigan, headquarters. There he was told by a number of his
supervisors that his career held the promise of advancement. In July, 1984,
Mr. Stolzenburg, then thirty-eight years old, was transferred to the Parts and Services
Division's St. Louis office to take over as the FSM there, a position that both
-2-
Mr. Stolzenburg and his supervisors understood was one from which he could expect
future advancement.
In February, 1986, however, Mr. Stolzenburg was moved to a supporting grade 9
management position in St. Louis to allow a younger employee to take over the position
of FSM, and Mr. Stolzenburg's career saw no more advancement. This appears to have
come as a surprise to him, since, at least until 1986, he had consistently received
above-average evaluations. Just four months after he changed positions and shortly
after his fortieth birthday, his PSR job status (indicating that he had the potential for
promotion to at least four more salary grades) was changed to AP job status. Although
several of Mr. Stolzenburg's peers and supervisors advocated his advancement, he
never received another promotion. He was passed over for promotion on six separate
occasions between October 1, 1990, and February 1, 1991, in favor of employees who
were younger and who had fewer years of experience both with Ford and in a grade 9
position.
The trial court submitted special interrogatories to the jury, asking whether age
was a motivating factor in each of seven relevant employment decisions by Ford. The
first interrogatory asked whether age was a motivating factor in Ford’s decision to keep
Mr. Stolzenburg in AP status. The succeeding interrogatories asked whether, in each
of six specific instances, age was a motivating factor in Ford’s choice to promote
younger grade 9 employees instead of Mr. Stolzenburg.
While the jury answered the first interrogatory in the negative, it found that, in
four of the other six employment decisions, age was indeed a motivating factor. The
jury also found that Ford did not act willfully or recklessly in any of the instances in
which Ford's decision was motivated by age. Finally, the jury found that different
decisions would have been made if Ford had not been motivated by age. Upon
receiving and reviewing these answers, the trial court entered judgment for
Mr. Stolzenburg, awarding him $40,500 (the lost wages to which the parties stipulated)
-3-
and directing Ford to promote Mr. Stolzenburg to the next available grade 10 position.
The trial court also awarded approximately $211,300 in attorney's fees to
Mr. Stolzenburg.
II.
Mr. Stolzenburg alleged in his complaint that instead of promoting him, Ford
promoted more than twenty younger, less qualified grade 9 employees to available
grade 10 positions. The trial court granted pretrial partial summary judgment to Ford,
holding that relief to Mr. Stolzenburg for any employment decisions made before
October 1, 1990, was barred by the 300-day statute of limitations in the ADEA. See
29 U.S.C. § 626(d)(2); see also 29 U.S.C. § 633(b). Mr. Stolzenburg argues that he
was the victim of a continuing violation by Ford and therefore that the trial court erred
in excluding evidence with respect to several instances when he was not promoted. We
disagree.
In order to establish a continuing violation (which would allow Mr. Stolzenburg
to put all of the denied promotions before the jury), a plaintiff must show that the acts
of which he or she complains were not actionable as discrete violations of the
applicable law. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977). The only
continuing condition under which Mr. Stolzenburg labored when he filed his EEOC
complaint was his AP status. Because the denials of promotion that the trial court
excluded from the case were discrete employment actions that occurred before the 300
days preceding Mr. Stolzenburg's filing of his EEOC complaint, see 29 U.S.C.
§ 626(d)(2), the trial court was correct in treating each as merely "an unfortunate event
in history which has no present legal consequence[]." United Air Lines, Inc. v. Evans,
431 U.S. at 558.
III.
Mr. Stolzenburg also asserts that the trial court erred by excluding two exhibits
pertinent to Ford's employee evaluation system, and the related deposition testimony
-4-
of Jane Glotzhober, an employee of Ford's personnel office. Without this evidence,
Mr. Stolzenburg argues, he was unable to show that Ford acted willfully to violate the
ADEA and was therefore unable to make a case for liquidated damages.
To be entitled to liquidated damages under the ADEA, a plaintiff must prove that
the defendant willfully violated the act. See 29 U.S.C. § 626(b). This requires more
than a mere demonstration that the defendant was aware that the statute was potentially
applicable; since employers are required to post ADEA notices, virtually every
employer would be aware that the act was potentially applicable. Trans World
Airlines, Inc. v. Thurston, 469 U.S. 111, 127-28 (1985). Rather, an employee must
show that "the employer either knew or showed reckless disregard for the matter of
whether its conduct was prohibited by the statute." Hazen Paper Co. v. Biggins, 507
U.S. 604, 617 (1993). Mr. Stolzenburg contends that the two excluded exhibits (one
entitled "Employee Evaluation: Do's and Don'ts," the other entitled "Sales and
Marketing Assessment of Potential Guidelines") tended to show that Ford was covering
up past age-based decisions and thus that Ford willfully violated the act in the
employment decisions that affected him.
"Do's and Don'ts" is intended to provide guidance to Ford managers who engage
in the annual evaluations of employees. It instructs managers on how to deal with
employees who are certain to be disappointed by a performance evaluation and on how
to reassure them that there are always ways of improving their chances for later
promotion. Of evident importance to Mr. Stolzenburg is the fact that the document tells
managers not to discuss age in any manner with the employees.
The second exhibit is a memorandum from the personnel office of the department
in which Mr. Stolzenburg was employed. This document discusses a proposed
modification in the evaluation and promotion process. For example, under the practice
in place during the relevant period, a management employee's "potential"
-5-
was presumed to be that of PSR grades 13 and 14 but could be gradually lowered if an
employee proved himself or herself capable of only a more limited management role.
The memorandum proposes that employees start from a more restricted presumptive
ability and that as they prove themselves more capable, their potential rank would be
raised. The document makes only a brief reference to age; it highlights the concern of
the personnel office that some employees of Ford believed that promotions were based
on age rather than merit. By adopting new performance review standards, the
document suggests, Ford would avoid the litigation risks associated with employee
assessments.
We find that any error in excluding these exhibits was harmless. If a trial court
wrongly excludes evidence, we must be left with "no reasonable assurance that the jury
would have reached the same conclusion had the evidence been admitted" before we
will set aside the judgment. Adams v. Fuqua Industries, Inc., 820 F.2d 271, 273 (8th
Cir. 1987). The inference of willfulness on Ford's part, if any, that a reasonable person
could draw from these documents is extremely weak at best. We therefore do not
believe that these two documents, both of them dated after the period relevant in this
case and neither of them related to Mr. Stolzenburg, would have altered the jury's
verdict on willfulness. Since Ms. Glotzhober’s deposition testimony dealt largely with
the circumstances of how the documents came into being, we conclude as well that any
error in excluding it was harmless.
IV.
Mr. Stolzenburg further maintains that the trial court improperly instructed the
jury on the issue of willfulness. He argues that since Ford denied that it used age as a
factor in making its employment decisions, it was not entitled to an instruction that its
“good faith” would exempt it from punitive damages. See Hazen Paper Co. v. Biggins,
507 U.S. at 616.
-6-
The trial court, after giving the standard instruction on willfulness, added that if
"by the greater weight of the evidence [you find] that Defendant in good faith and
non-recklessly believed that Federal law permitted it to act as it did with respect to
Plaintiff, then you may not find that the Defendant's conduct was 'willful.' " While this
instruction contains language that does not find complete support in our cases, it does
not do substantial violence to them, and, on this record, we believe that any error in the
instruction was harmless at most.
V.
Mr. Stolzenburg complains that the trial court refused to submit the issue of
punitive damages to the jury, which he believes he was entitled to under the Missouri
Human Rights Act. Under Missouri law, “[p]unitive damages may be awarded for
conduct that is outrageous, because of the defendant’s evil motive or reckless
indifference to the rights of others.” Nelson v. Boatmen’s Bancshares, Inc., 26 F.3d
796, 803 (8th Cir. 1994) (internal quotation marks omitted). To merit an instruction to
the jury on punitive damages under the Missouri statute, a plaintiff must produce
evidence of conduct that shocks the conscience. Id. at 804.
While Ford did not promote Mr. Stolzenburg, there was no showing that Ford
acted in an outrageous fashion: Ford offered Mr. Stolzenburg lateral transfers that
could have helped restart his career, he was always eligible for merit raises within a
grade 9 position, and he was never discharged from the company. After reviewing the
record in the light most favorable to Mr. Stolzenburg, we conclude that there was
insufficient evidence of outrageous conduct by Ford to warrant the submission of the
matter of punitive damages to the jury.
VI.
Finally, we find no error in the trial court's order for relief. The trial court has
the authority "to grant such legal or equitable relief as may be appropriate to effectuate
the purposes" of the ADEA. See 29 U.S.C. § 626(b). The purposes of the ADEA are
-7-
"to make persons whole for injuries suffered as a result of unlawful employment
discrimination" and "to restore [those] persons to the position where they would have
been if the illegal discrimination had not occurred." Gibson v. Mohawk Rubber Co.,
695 F.2d 1093, 1097 (8th Cir. 1982).
Given the applicable law, we see no merit in Mr. Stolzenburg's novel suggestion
that his employment records should be changed to reflect that he is now a grade 10
employee and has been since October 1, 1990. For one thing, and perhaps this is the
main thing, such a statement would be manifestly untrue. For another,
Mr. Stolzenburg was awarded back pay commensurate with those lost years of
grade 10 employment; we therefore cannot say that forcing Ford to change its records
to reflect that Mr. Stolzenburg has been a grade 10 employee since 1990 would serve
any useful purpose.
Mr. Stolzenburg's request that he be promoted to a grade 10 position within the
St. Louis area is likewise without merit. Ford offered evidence that promotion within
its ranks often requires that the employee relocate to a different city; forcing Ford to
promote Mr. Stolzenburg within St. Louis might well make him better off than he
would have been if Ford had not discriminated against him in the first place.
VII.
Ford cross-appeals, arguing that it was entitled to judgment because the jury's
answer to the first interrogatory precluded a judgment for Mr. Stolzenburg. Ford
contends that since the jury found that Ford’s decision to keep Mr. Stolzenburg in AP
status was not motivated by age, the jury was then precluded from finding that any of
the six discrete employment decisions at issue was so motivated, because the evidence
was all to the effect that Ford never promotes individuals who are classified as AP.
Ford did indeed present evidence that Mr. Stolzenburg, once placed in AP status,
was not considered for any of these six promotions. At least one Ford employee,
-8-
however, testified that Mr. Stolzenburg was considered for a grade 10 promotion
locally and regionally, even if he was not given final consideration at the national level.
Furthermore, a number of Ford employees testified that individuals who had been
designated as AP were sometimes promoted nevertheless. On this record, therefore,
the jury could have found that employees in AP status had a harder time obtaining a
promotion and that those responsible for promotion decisions needed to be convinced
that such employees’ abilities had truly improved, but that employees in AP status were
not completely excluded from consideration for advancement.
VIII.
For the foregoing reasons we affirm the judgment of the trial court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-9-
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17-2924
U.S. v. Knight
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 TO 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 18th day of January, two thousand nineteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
DENNY CHIN,
Circuit Judge,
JEFFREY A. MEYER,
District Judge.*
UNITED STATES OF AMERICA,
Appellee,
v. No. 17-2924
ANTOINE KNIGHT,
Defendant-Appellant.
For Defendant-Appellant: Matthew B. Larsen, Assistant Federal Public
Defender, Federal Defenders of New York,
Inc., New York, NY.
*
Judge Jeffrey A. Meyer, of the United States District Court for the District of Connecticut, sitting
by designation.
1
For Appellee: Susan Corkery, John A. McConnell, Assistant
United States Attorneys, for Richard P.
Donoghue, United States Attorney for the
Eastern District of New York, Brooklyn, NY.
Appeal from a judgment of the United States District Court for the Eastern District of
New York (Mauskopf, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Antoine Knight appeals from a judgment entered September 20, 2017 convicting him,
following a plea of guilty, of one count of possession of a firearm following a felony conviction
in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court sentenced Knight
principally to a term of 80 months’ imprisonment. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
Knight argues that we should vacate his sentence because the district court improperly
applied a 10-level enhancement under § 2K2.1(a) of the November 2016 edition of the U.S.
Sentencing Guidelines (“Guidelines”). According to Knight, the 10-level enhancement was
improper because neither third-degree New York robbery nor second-degree New York robbery
that “causes physical injury” is a “crime of violence” under § 4B1.2(a) of the Guidelines. But
Knight’s argument is foreclosed by this Court’s recent decision in United States v. Pereira-
Gomez, which stated that all degrees of New York robbery and attempted robbery qualify as
crimes of violence under an identically-worded provision of the November 1, 2014 edition of the
Guidelines, see 903 F.3d 155, 166 (2d Cir. 2018); compare Application Note 1(B)(iii) of § 2L1.2
of the November 2014 U.S. Sentencing Guidelines (defining a crime of violence to include any
state law offense that “has as an element the use, attempted use, or threatened use of physical
2
force against the person of another”), with § 4B1.2(a) of the November 2016 U.S. Sentencing
Guidelines (defining a crime of violence as a felony that “has as an element the use, attempted
use, or threatened use of physical force against the person of another”).
We have considered Knight’s remaining contentions on appeal and have found in them
no basis for vacatur. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
3
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525 F.Supp. 21 (1980)
J. C. B. EHRINGHAUS, Jr.
v.
FEDERAL TRADE COMMISSION.
Civ. A. No. 80-1861.
United States District Court, District of Columbia.
December 23, 1980.
*22 MEMORANDUM OPINION
JUNE L. GREEN, District Judge.
This action arises under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Plaintiff seeks access to records of the Federal Trade Commission (FTC) concerning a study of the effectiveness of health warning information contained in cigarette advertising done for the FTC by Burke Marketing Research (Burke Study).
Defendant withholds the 29 documents relating to the study, claiming each is exempt from disclosure pursuant to exemptions 5 and 7(A) of FOIA. This Court finds the documents are properly withheld on the basis of exemption 7(A), and does not reach the merits of the claimed exemption 5.
I.
Plaintiff, J.C.B. Ehringhaus, is Senior Vice President and Counsel to the Tobacco Institute, a research corporation. On April 29, 1980, he filed the aforementioned FOIA request. The Secretary of the Commission denied access to the materials requested on May 21, 1980. On appeal, the Commission's Acting General Counsel determined all documents were exempt from mandatory disclosure pursuant to exemptions 5 and 7(A).
On July 24, 1980, plaintiff filed his complaint with this Court. Defendant filed a Vaughn Index on September 16, 1980. The case is before the Court presently on cross-motions for summary judgment.
Since 1965 the FTC has been charged with the specific responsibility to investigate and report annually to Congress on the effectiveness of cigarette labeling and current cigarette advertising practices. 15 U.S.C. § 1331 et seq. Pursuant to this authority, the FTC began an industry-wide investigation of cigarette manufacturers and others regarding their practices. The FTC's subpoenas were enforced in 1979. The District Court found they were reasonably relevant to the FTC's valid pre-complaint investigation of cigarette advertising. FTC v. Carter, 464 F.Supp. 633 (D.D.C. 1979).
The Burke Study is another part of the FTC's major investigation into cigarette advertising. It is not certain what the ultimate result of the study and investigation will be. However, an enforcement action for unfair trade practice pursuant to FTC Act § 5, 15 U.S.C. § 45, is anticipated as a likely result.
The withheld documents deal with the nature of the Burke Study, a proposed study design, various modifications in the study's scope and content, its construction and the actual survey instruments. The specific issue the withholding presents with respect to exemption 7 is: whether, prior to filing a contemplated complaint alleging unfair advertising practices, the FTC must release materials pertaining to the study upon which the enforcement proceeding would be based.
II.
The basic policy of FOIA is to promote disclosure. However, in 5 U.S.C. § 552(b), Congress carefully delineated nine exemptions from the otherwise mandatory disclosure requirements. EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973); Dep't. of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976).
Under exemption 7(A) of the FOIA an agency may withhold
investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings * * * [5 U.S.C. § 552(b)(7).]
*23 The Court finds the 29 documents fall within the scope of exemption 7(A).[*]
At the threshold, the Court determines that the 29 documents are "investigatory records" within the meaning of the FOIA as they were produced as part of the FTC investigation into the advertising practices of cigarette manufacturers.
The documents were also "compiled for law enforcement purposes". Courts have held that 7(A) applies when a law enforcement proceeding is "pending or contemplated", Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 870 (D.C. Cir. 1980); or "in prospect", New England Medical Center Hospital v. NLRB, 548 F.2d 377, 383 (1976); or where the investigation will "hopefully lead to a prospective law enforcement proceeding", National Public Radio v. Bell, 431 F.Supp. 509, 514 (D.D.C. 1977).
Interpreting the legislative history, courts have held that the purpose of the 1974 amendment to 7(A) was to allow disclosure of closed investigative files, while preventing it for active and prospective files, NLRB v. Robbins Tire & Rubber Co. (hereinafter Robbins); 437 U.S. 214, 224-232, 98 S.Ct. 2311, 2318-2322, 57 L.Ed.2d 159 (1978); see also, Title Guarantee Co. v. NLRB, 534 F.2d 484, 492 (2nd Cir. 1976) (quoting the Attorney General's Memorandum on the 1974 Amendments).
Senator Hart, the sponsor of the 1974 amendment stated that 7(A) prevented disclosure in those instances where it would harm "a concrete prospective law enforcement proceeding." 120 Cong.Rec. S9329 (Remarks of Senator Hart) (daily ed. May 30, 1974) (emphasis added).
A concrete and foreseeable possibility exists that enforcement litigation will ensue in the present case. The FTC staff investigation is active and the Commission has devoted substantial resources to it. Despite other possible outcomes of the investigation, such as a rulemaking proceeding, an enforcement proceeding is in prospect.
The final inquiry to be made is whether disclosure of the 29 documents would "interfere" with the government's case. All 29 documents at issue here relate directly to a survey to gather potential evidence for use in a future law enforcement adjudication. Disclosure would reveal preliminary evidence supporting the contemplated action, the focus of the investigation, important aspects of the planned strategy of Commission attorneys, the strengths and weaknesses of the government's case and the amount of resources devoted to the investigation. The documents in essence aggregate the impressions of many potential witnesses and the thrust of the contemplated case. In addition, document Nos. 22 and 23 are letters from consultants selected to review the survey to a Commission staff attorney, and thus identify individuals who Commission attorneys may seek as witnesses in future proceedings. Disclosure could also prematurely reveal the relative effectiveness of current health warnings.
Potential respondents would obtain an unfair litigation advantage by this premature disclosure. They could alter their litigation strategy as well as their pre-complaint activities to frustrate the imposition of effective remedies. Further, it could affect their responses to subsequent requests for information. Release of the documents *24 would allow potential litigants insights into the FTC's strategy and evidence which it would not be able to obtain through established discovery procedures.
One of the principal congressional purposes in enacting exemption 7(A) is "to prevent harm [to] the Government's case in court ...". Robbins, supra, 437 U.S. at 224-25, 98 S.Ct. at 2318, 2319. The FOIA is not intended to function as a private discovery tool, id. at 242, 98 S.Ct. at 2327; Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 22, 94 S.Ct. 1028, 1039, 39 L.Ed.2d 123 (1974), nor is it intended to reveal the identity and testimony of potential witnesses. Robbins, supra, 437 U.S. at 239-42, 98 S.Ct. at 2325-2327.
Moreover, in order to invoke exemption 7(A), the government is not required to make a specific factual showing with respect to each withheld document that disclosure would actually interfere with a particular enforcement proceeding. Federal courts may make generic determinations that disclosure of particular types of investigatory records while a case is pending would generally interfere with enforcements proceedings. Id. at 236, 98 S.Ct. at 2323.
The Court finds release of the 29 documents would cause impermissible harm to the government's case. The Court further finds that the 29 documents are properly withheld in total, there being no reasonably segregable parts.
Accordingly, the Court holds that the plaintiff's motion should be denied and that the defendant is entitled to summary judgment. A separate order is attached hereto.
NOTES
[*] Plaintiff argues that the Vaughn index is inadequate. The Court finds the description given by the FTC is necessarily brief. Greater substantive detail could harm the investigation in the several ways described infra. Plaintiff relies heavily on Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir. 1980). In that case, however, the DOE failed to show that there was any current investigation. The instant case concerns an active investigation (see infra). Agencies need not particularize the grounds justifying nondisclosure in a case involving an active law enforcement investigation. National Labor Relations Board v. Robbins Tire Rubber Co., 437 U.S. 214, 223-226, 98 S.Ct. 2311, 2318-2319, 57 L.Ed.2d 159 (1978); see also, Dairyman, Inc. v. Federal Trade Commission, Civil Action No. 79-2977 (D.D.C. July 9, 1980) Mem.Op. at 34 (where a similar Vaughn index to the one here was approved), and Exxon v. Federal Trade Commission, 476 F.Supp. 713, aff'd 663 F.2d 120 (D.C. Cir. 1980). Accordingly, this Court finds that the Vaughn index was sufficient.
| {
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
04-1326
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
William Stonerook, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: December 6, 2004
Filed: June 6, 2005
___________
Before BYE, MELLOY, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
William Stonerook was charged with manufacturing or attempting to
manufacture 50 grams or more of methamphetamine mixture, possessing ephedrine
and pseudoephedrine with intent to manufacture methamphetamine, unlawful
possession of a firearm by a previously convicted felon, and criminal forfeiture. He
moved to suppress evidence that had been seized from his home, arguing that the
underlying search warrant was obtained in violation of Nebraska law regarding
telephonic search warrants, and that no reasonable police officer could have relied in
good faith on the validity of the search warrant. The district court1 denied the motion
to suppress.
Stonerook then entered into a plea agreement with the government, agreeing
to plead guilty to manufacturing methamphetamine and to the forfeiture charge. The
agreement reserved Stonerook’s right to appeal the denial of his suppression motion
and required the government to seek dismissal of the remaining charges. The
agreement also stipulated that Stonerook had accepted responsibility, but not in a
timely fashion, and that Stonerook was responsible for at least 50 grams of
methamphetamine mixture.
The presentence report (“PSR”) prepared by the United States Probation Office
recommended a base offense level of 34 based on a quantity of 305.9 grams of actual
methamphetamine, a two-level increase because Stonerook possessed a firearm, and
a two-level reduction for acceptance of responsibility. With a total offense level of
34 and a Category IV criminal history, Stonerook’s resulting guideline range was
210-262 months. At sentencing, the government presented evidence that Stonerook’s
methamphetamine lab had contained 343 grams of pseudoephedrine, and was
therefore capable of yielding 240 grams of methamphetamine if the yield was 80
percent. The government also presented testimony that the yield in Stonerook’s lab
could have been as high as 90 to 95 percent. The district court found that the actual
drug quantity was over 240 grams, and, overruling Stonerook’s objection to the
PSR’s recommended two-level firearm enhancement, found that the total offense
level was 34. The district court sentenced Stonerook to 210 months’ imprisonment.
On appeal, Stonerook renews his objection to the drug quantity finding and the
firearm enhancement. Additionally, he argues that the warrant used to search his
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska, adopting the report and recommendations of the Honorable F.
A. Gossett, III, United States Magistrate Judge for the District of Nebraska.
-2-
home was obtained in violation of Nebraska law because it was sworn in a telephone
conversation between the affiant and the judge, and that no reasonable officer could
have relied in good faith on the warrant because the supporting affidavit misstated an
aspect of the house’s location. In a supplemental brief which he has tendered and
moved to file, Stonerook argues that his sentence violated his Sixth Amendment
rights based on the reasoning of Blakely v. Washington, 124 S. Ct. 2531 (2004).
We find no error in the district court’s denial of Stonerook’s motion to
suppress. For federal constitutional purposes, Nebraska law is not determinative, see
United States v. Bell, 54 F.3d 502, 504 (8th Cir. 1995), and under federal law,
affidavits sworn before a judge telephonically are not per se impermissible. See
United States v. Turner, 558 F.2d 46, 50 (2d Cir. 1977). Reviewing the district
court’s factual findings for clear error and its legal conclusions de novo, United States
v. Morgan, 270 F.3d 625, 630 (8th Cir. 2001), we agree with the district court that the
totality of the circumstances demonstrated a fair probability that evidence of a crime
would be found at Stonerook’s home. The affidavit upon which the warrant was
based asserted that a male and female had been videotaped buying three boxes of
Sudafed tablets at the local Target store, and that the couple left the store in a blue
truck registered to Stonerook, who lived at 10825 740 Road in Loomis, Nebraska.
The affidavit also asserted that the affiant and another deputy viewed the videotaped
transaction and positively identified the male subject as Stonerook, and that
Stonerook returned to the Target store on two separate occasions in the early
afternoon of October 4, one time buying 150 Sudafed tablets, as well as cotton swabs
and razor blades, and the other time buying three boxes of Sudafed tablets. In
addition, a confidential informant had informed Sheriff Nutt that Stonerook was
making methamphetamine on the property, and a deputy had seen Stonerook take
bags to a burn barrel and carry jugs from the house to the garage. This information
is more than sufficient to establish a fair probability that evidence of a crime would
be found at Stonerook’s address.
-3-
Stonerook protests that the warrant affidavit erroneously located his home of
the south side of the street, rather than the north side of the street, but this
misstatement does not render the warrant invalid. The warrant affidavit accurately
described Stonerook’s house, and there was no similar property on the south side of
the street. In addition, the street address was correct in both the warrant and the
affidavit. Where it is clear which property was intended in the affidavit, a word
processing error does not render a warrant invalid. See United States v. Jones, 208
F.3d 603, 608 (7th Cir. 2000); cf. United States v. Arenal, 768 F.2d 263, 267 (8th Cir.
1985).
Stonerook’s objections to the district court’s calculation of the appropriate
guideline range are also without merit. The drug quantity determination was
supported by testimony about the number of pseudoephedrine pills and blister packs
found in Stonerook’s home, and by expert testimony about the potential
methamphetamine yield from that amount of pseudoephedrine in a lab of Stonerook’s
size and method. See USSG § 2D1.1, comment. (n.12); United States v. Eide, 297
F.3d 701, 705 (8th Cir. 2002) (finding that the estimated amount of methamphetamine
lab is capable of producing may be determined from quantity of precursors seized,
together with expert testimony about their conversion to methamphetamine). See
also United States v. Anderson, 236 F.3d 427, 429-30 n.5 (8th Cir. 2001) (per curiam)
(noting that the estimate of clandestine lab’s capability to produce methamphetamine
based on quantity of precursors seized at lab need not be limited to yield available
from least abundant precursor). The enhancement for a firearm under USSG
2D1.1(b)(1) was also not clearly erroneous, because the court heard evidence that the
firearms found in Stonerook’s bedroom were in the same room as methamphetamine,
a digital scale, and apparent drug records. See United States v. Cave, 293 F.3d 1077,
1079 (8th Cir. 2002) (noting that evidence that weapon was found in same location
as drugs usually suffices to establish connection between drug offense and weapon
for purposes of applying § 2D1.1(b)(1) enhancement).
-4-
In light of United States v. Booker, 125 S. Ct. 738, 756 (2005), we agree with
Stonerook that the district court’s application of mandatory sentencing guidelines,
combined with its factual findings concerning drug quantity and use of a firearm, was
contrary to the Sixth Amendment as applied in Booker. However, Stonerook did not
object to the district court’s application of mandatory sentencing guidelines or a
sentence based on facts neither admitted by the defendant nor proved to a jury beyond
a reasonable doubt. Reviewing his sentence for plain error, see United States v.
Pirani, 406 F.3d 543, 549-50 (8th Cir. 2005) (en banc), we do not believe there is a
“reasonable probability” that Stonerook would have received a more favorable
sentence if the district court had sentenced him under the advisory guidelines scheme
announced in Booker. His sentence at the low end of the guidelines range is
insufficient to establish such a probability, Pirani, 406 F.3d at 553, and we find
nothing in the record to indicate that the court would have imposed a more lenient
sentence under the advisory guidelines. The court declined to depart downward,
noting that the defendant’s criminal history was not overstated, and observed that the
two-level adjustment Stonerook received for acceptance of responsibility was “a
generous adjustment” in this case, because jury costs of $2,016.78 already had been
incurred when the defendant decided to plead guilty. “‘[W]here the effect of the error
on the result in the district court is uncertain or indeterminate – where we would have
to speculate – the appellant has not met his burden of showing a reasonable
probability that the result would have been different but for the error.’” Id. (quoting
United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005)).
We grant Stonerook’s motion to file a supplemental brief, and we affirm.
______________________________
-5-
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-60742
JAWAID ANWAR,
Petitioner,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Appeal from the Board of Immigration Appeals
June 16, 1997
Before JOLLY, JONES, and PARKER, Circuit Judges.
PARKER, Circuit Judge:
The panel withdraws the opinion issued in this case dated
March 13, 1997, 107 F.3d 339, and substitutes the following
opinion.
Jawaid Anwar (“Anwar”), a citizen of Pakistan, petitions this
court for review of his due process contention that the Board of
Immigration Appeals (“BIA”) denied him due process in not granting
him an extension of time to file a brief before it affirmed the
decision of the Immigration Judge (“IJ”) denying Anwar asylum and
withholding of deportation. For the reasons given below, we grant
1
the petition and affirm the BIA.
FACTS AND PROCEEDINGS BELOW
Anwar, a 45-year-old citizen of Pakistan, entered the United
States on January 6, 1983 as a nonimmigrant visitor with
authorization to remain for six months. In an Order to Show Cause
dated April 19, 1993, the Immigration and Naturalization Service
(“INS”) charged Anwar with deportability under section 241(a)(1)(B)
of the Immigration and Naturalization Act (“INA” or “the Act”), 8
U.S.C. § 1251(a)(1)(B), for remaining in the United States for a
time longer than permitted, and also under section 241(a)(2)(A)(ii)
of the Act, 8 U.S.C. § 1251(a)(2)(A)(ii), for convictions after
entry of two crimes involving moral turpitude not arising out of a
single scheme of criminal conduct.
After a deportation hearing, the IJ found Anwar deportable as
charged. The INS had submitted records from the State of Virginia
showing the following convictions: (1) sexual battery (1985) (one-
year sentence with six months suspended); and (2) credit card theft
and fraudulent use of a credit card (1992) (five-year suspended
sentence).
Anwar applied for asylum and withholding of deportation under
section 243(h) of the Act, 8 U.S.C. § 1253(h), and section 208(a)
of the Act, 8 U.S.C. § 1158(a). On July 17, 1995, the IJ denied
Anwar’s application for asylum and also found that he was
ineligible for the mandatory exercise of § 243(h)’s withholding of
deportation. The IJ found that Anwar’s sexual battery conviction
was for a “particularly serious crime” and that Anwar was “a danger
2
to the community,” making him ineligible under the Act for §
243(h)’s withholding of deportation.
Regarding Anwar’s asylum application, the IJ found that Anwar
did not establish himself as a “refugee” under 8 U.S.C. §
1101(a)(42)(A) as required to warrant consideration for a
discretionary grant of asylum under § 208 of the Act, 8 U.S.C. §
1158(a). Anwar testified that while in Pakistan, people from
different ethnic groups had abused him verbally and physically
because of his Christian religion and political views. Anwar also
testified that he did not convert to Christianity until after his
entry into the United States. Anwar attested to his suspicions
concerning the deaths of family members who were members of the
Mohajir Quami Movement (“MQM”), a Pakistani political party. He
himself is not a member of MQM. He also testified that he had
never been detained, interrogated, convicted or sentenced to jail
while in Pakistan. In his decision, the IJ referenced the State
Department’s “country report” on Pakistan which stated that MQM is
a legal political party in Pakistan that has won 27 out of a total
of 99 seats in the providential assembly.
Anwar appealed the IJ’s decision pro se to the BIA. He was
given until August 23, 1995 to submit a brief in support of his
appeal to the BIA. On August 8, 1995, the INS sent Anwar a copy of
the hearing transcript. On August 24, 1995, Anwar filed a “Motion
to Request Extension of Time to File Appeal Brief,” pursuant to 8
C.F.R §§ 3.3(c) and 242.8, seeking an extension of time until
September 25, 1995 on the basis that he had retained counsel and
3
his attorney now required preparation time. On August 24, 1995,
an IJ denied Anwar an extension of time to file a brief with the
BIA, noting that, “The motion for an extension of time was received
after [the brief] was due.”
On September 13, 1995, the BIA affirmed the IJ’s decision for
the reasons set forth by the IJ. Anwar now appeals to this court
on due process grounds the BIA’s denial of an extension of time to
file his brief, having filed a timely notice of appeal in December
of 1995.
DISCUSSION
A. Jurisdiction
The issue presented initially is whether we have jurisdiction
of this appeal. During the pendency of Anwar’s appeal to this
court, the Anti-Terrorism and Effective Death Penalty Act of 1996,
Pub. L. 104-132, 110 Stat. 1214 (April 24, 1996), was enacted. It
amended our jurisdiction over final orders of the BIA so as to
preclude our review of certain matters. See Mendez-Rosas v. INS,
87 F.3d 672 (5th Cir. 1996), cert. denied, -- U.S. --, 117 S. Ct.
694, -- L. Ed. 2d -- (1997). After the AEDPA’s enactment, Congress
enacted the Illegal Immigration Reform and Immigrant Responsibility
Act, Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996)
(“IIRIRA”), amended by Pub. L. No. 104-302, 110 Stat. 3656 (Oct.
11, 1996), which further amended the source of our jurisdiction.
IIRIRA § 309(c) contains special “transition for aliens in
proceedings” provisions that, absent certain listed exceptions that
do not apply in this case, see IIRIRA § 309(c)(2)-(4), provide a
4
“general rule that [the] new rules do not apply,” see IIRIRA §
309(c)(1), to aliens in deportation proceedings prior to April 1,
1997. Subject to the listed exceptions, “in the case of an alien
who is in exclusion or deportation proceedings before the title
III-A effective date [180 days after the IIRIRA’s enactment, or
April 1, 1997],” “the amendments made by this subtitle shall not
apply, and [] the proceedings (including judicial review thereof)
shall continue to be conducted without regard to such amendments.”
IIRIRA § 309(c)(1) (as amended by Pub. L. No. 104-302, 110 Stat.
3656, § 2(2) (Oct. 11, 1996)); see also, e.g., Ibrik v. INS, 108
F.3d 596 (5th Cir. 1997) (applying IIRIRA § 309 transitional
provision regarding period of time in which appeal must be filed).
Among the amendments in “this subtitle” is IIRIRA § 306(d)
which amended AEDPA § 440(a) to make the language of the AEDPA’s
judicial review provision mirror the AEDPA’s provision restricting
eligibility for waiver of inadmissability under INA § 212(c).
Because the transition provision, IIRIRA § 309(c)(1), provides that
the subtitle’s amendments are generally not effective for aliens
who were in exclusion or deportation proceedings prior to April 1,
1997, there is a group of aliens to which IIRIRA § 306(d)’s
amendment to AEDPA § 440(a)’s judicial review provision does not
apply. Anwar was in deportation proceedings far in advance of
April 1, 1997 and is thus one such alien.1
1
Anwar’s final order of deportation was not entered more than 30
days after the IIRIRA’s enactment and so IIRIRA § 309(c)(4) does not apply
to his case. See IIRIRA § 309(c)(4). None of the other listed exceptions
to the general transition rule are applicable either. See IIRIRA §
309(c)(2)-(3).
5
AEDPA § 440(a) as unamended by IIRIRA § 306(d) does not
eliminate our jurisdiction over this case.2 Unamended AEDPA §
440(a) is, in pertinent part, as follows.
Any final order of deportation against an alien who
is deportable by reason of having committed a
criminal offense...covered by section
241(a)(2)(A)(ii) for which both predicate offenses
are covered by section 241(a)(2)(A)(i), shall not be
subject to review by any court.
AEDPA § 440(a) (emphasis added). Section 241(a)(2)(A)(ii) of the
INA is the section under which Anwar was found deportable.
According to the plain language of the AEDPA, judicial review is
precluded over such deportation orders only when both of the moral
turpitude offenses that serve as the basis for deportation are
covered by section 241(a)(2)(A)(i) of the INA, a section addressing
2
We recognize the apparent inconsistency of this revised opinion
with our opinion in Pichardo v. INS, 104 F.3d 756 (5th Cir. 1997). The
parties in Pichardo did not assert that IIRIRA § 309 was applicable to the
controversy and therefore the transitional provisions of that section of
the IIRIRA were not considered by the court. The only resulting difference
in Pichardo and Anwar is the phrase “without regard to the date of their
commission” that was added by IIRIRA § 306(d) to AEDPA § 440(a).
It is unnecessary to revisit Pichardo, but as the same panel that
heard Pichardo, we note that Pichardo would have met the same fate
regardless of our jurisdiction discussion in that case. While without the
phrase added by IIRIRA § 306(d), we could have considered the merits of
Pichardo’s appeal because Pichardo lacked two offenses in the qualifying
time frame laid out in AEDPA § 440(a)’s amendment of our jurisdiction (in
other words, as unamended by IIRIRA § 306(d)), as the same panel, we note
that Pichardo’s claims were meritless. He claimed reversible error in the
BIA’s lack of an explicit finding regarding rehabilitation, one of the
relevant § 212(c) factors, yet the BIA was only required to demonstrate
that it had considered all relevant § 212(c) factors, see Ghassan v. INS,
972 F.2d 631, 636 (5th Cir. 1992); Vergara-Molina v. INS, 956 F.2d 682, 685
(7th Cir. 1992), and the BIA referenced the very absence of Pichardo’s
rehabilitation in its opinion. Pichardo also contended that the BIA
improperly denied Pichardo a § 212(h) waiver of inadmissability by
mentioning Pichardo’s convictions in the context of its “extreme hardship”
analysis. The BIA made its “extreme hardship” determination on the basis
that Pichardo failed to demonstrate that his deportation would cause
“extreme hardship” to his family, and thus was properly within its
discretion to find Pichardo ineligible for a favorable exercise of its §
212(h) discretion.
6
the convictions’ time frames and lengths of sentences. AEDPA §
440(a), 8 U.S.C. § 1105(a)(10) (1996). The AEDPA also amended that
section of the INA, but expressly provided that the amendment
applies only to aliens against whom deportation proceedings are
initiated after the date of the AEDPA’s enactment. AEDPA §
435(b). Because the AEDPA was enacted in April 1996 and Anwar’s
Order to Show Cause was issued in 1993, the unamended version of
section 241(a)(2)(A)(i) is to be followed. Because both of Anwar’s
convictions supporting his deportation do not satisfy section
241(a)(2)(A)(i) of the INA, as unamended,3 our review of Anwar’s
appeal is not precluded by the AEDPA’s amendments to our
jurisdiction over BIA deportation orders. Having determined that
our jurisdiction over this order has not been withdrawn, we proceed
3
Section 241(a)(2)(A)(i), as unamended, reads as follows.
an alien who--
(I) is convicted of a crime involving moral turpitude
committed within five years (or 10 years in the case
of an alien provided lawful permanent resident status
under section 1255(i)of this title) after the date of
entry, and
(II) either is sentenced to confinement or is
confined therefor in a prison or correctional
institution for one year or longer,
is deportable.
8 U.S.C. § 1251(a)(2)(A)(i) (unamended) (emphasis added). Because Anwar
was not a lawful permanent resident, the five-year period of time applies.
Anwar’s crimes of moral turpitude supporting his deportation must have been
committed within the period of time 1983-1988 in order to satisfy the first
condition of § 1251(a)(2)(A)(i)(I). See Medeiros v. INS, 98 F.3d 1333,
1996 WL 614798 at *1 n.2 (1st Cir. 1996). In addition, the sentences or
confinements must have been for one year or longer to satisfy the second
condition in § 1251(a)(2)(A)(i)(II). Only the sexual battery conviction
falls into the qualifying five-year time frame. Since at least two
convictions involving moral turpitude must fall into the five-year time
frame to meet the conditions of 8 U.S.C. § 1251(a)(2)(A)(i), we need
inquire no further.
7
to the merits of this appeal. See 8 U.S.C. § 1105a(a); Opie v.
INS, 66 F.3d 737, 739 (5th Cir. 1995).
B. Due Process Claim
Anwar does not challenge the finding of deportability, nor
does he challenge the IJ’s denial of asylum and withholding of
deportation. His contention is that he was denied due process
because, pursuant to regulations regarding deadlines for filing of
briefs, the BIA did not give him an extension of time to file a
brief appealing the decision of the IJ.
We review due process challenges on a de novo basis.
Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir. 1993). It is clearly
established that the Fifth Amendment of the United States
Constitution entitles aliens to due process of law in deportation
proceedings. Animashaun v. INS, 990 F.2d 234, 238 (5th Cir. 1993)
(citing Reno v. Flores, 507 U.S. 292, 113 S. Ct. 1439, 1449, 123 L.
Ed. 2d 1 (1993)). Due process challenges to deportation
proceedings require an initial showing of substantial prejudice.4
Howard v. INS, 930 F.2d 432, 436 (5th Cir. 1991); Calderon-
Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir. 1986).
In order for Anwar to show that the BIA’s not extending the
4
We note that because Anwar does not assert procedural error
correctable by the BIA, but rather, in essence, a challenge to the
regulations regarding the submission of briefs, his claim is not subject
to an exhaustion requirement. See 8 U.S.C. § 1105a(c); Koroma v. INS, 83
F.3d 427, 1996 WL 207142, at *2 (9th Cir. 1996) (due process claims
generally exempt from exhaustion doctrine because not within purview of
BIA, except for procedural errors which are within BIA’s jurisdiction);
Rashtabadi v. INS, 23 F.3d 1562 (9th Cir. 1994) (same); see also Ogbemudia
v. INS, 988 F.2d 595 (5th Cir. 1993) (not subjecting alien’s due process
claim to exhaustion requirement).
8
deadline for the filing of his brief caused him substantial
prejudice, Anwar must make a prima facie showing that he was
eligible for asylum and that he could have made a strong showing in
support of his application. See Miranda-Lores v. INS, 17 F.3d 84,
85 (5th Cir. 1994); Figeroa v. United States INS, 886 F.2d 76, 79
(4th Cir. 1989). Anwar’s contention must be denied because he has
not shown the requisite prejudice.
The IJ reasoned that Anwar’s sexual battery conviction
constituted a “particularly serious crime” which serves as a bar to
mandatory withholding of deportation. See 8 U.S.C. § 1253(h).
Anwar has not offered any support that he suffered actual prejudice
in relation to his application. He made no attempt to demonstrate
that an extension of time to file his brief with the BIA would have
allowed him to demonstrate that his sexual battery conviction was
not a “particularly serious crime” barring relief under § 243(h).
He also failed to present a prima facie case for withholding of
deportation under § 243(h), as required to demonstrate prejudice.
See Miranda-Lores, 17 F.3d at 85; Figeroa, 886 F.2d at 79.
In order to be considered for a discretionary grant of asylum
under § 208(a) of the Act, an alien must qualify as a “refugee”
under 8 U.S.C. § 1101(a)(42)(A). See 8 U.S.C. § 1158(a). A
refugee is defined as an alien who is unwilling or unable to return
to his country of nationality 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. See 8 U.S.C. § 1101(a)(42)(A). As Anwar clearly failed
9
to present a prima facie case that he is a refugee, see Guevara
Flores v. INS, 786 F.2d 1242 (5th Cir. 1986) (reviewing
requirements for asylum), he suffered no prejudice by the BIA
declining to extend his deadline for the filing of his brief. See
Miranda-Lores, 17 F.3d at 85; Figeroa, 886 F.2d at 79.
CONCLUSION
For the foregoing reasons, the petition is GRANTED and the BIA
order is AFFIRMED.
10
| {
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In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4096
MICHAEL E. DAVIS,
Plaintiff-Appellant,
v.
CHARLES NOVY, individually and in his capacity
as a Bolingbrook, Illinois, police officer for the Village
of Bolingbrook, and LUIS ESCOBAR, individually and
in his capacity as a Bolingbrook police officer for
the Village of Bolingbrook,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 572—Arlander Keys, Magistrate Judge.
____________
ARGUED SEPTEMBER 22, 2005—DECIDED JANUARY 6, 2006
____________
Before EASTERBROOK, EVANS, and SYKES, Circuit Judges.
EVANS, Circuit Judge. In this case, brought under
42 U.S.C. § 1983, Michael Davis alleges that two police
officers from the Village of Bolingbrook, Illinois, violated his
rights under the Fourth Amendment by stopping his truck
without probable cause and searching it and his home
under the authority of a written “consent to search” he was
coerced into signing. The officers insist that
Davis voluntarily consented to the searches and that
an obscured registration sticker on his license plate sup-
2 No. 04-4096
plied probable cause for the stop. After 3 days of trial before
a jury, Magistrate Judge Arlander Keys (presiding with the
parties’ consent, see 28 U.S.C. §636(c)(1)) granted the
defendants’ motion for judgment as a matter of law, finding
that the evidence left no doubt about the validity of Davis’s
consent and that probable cause for the stop was unques-
tionably present.
The officers, Charles Novy and Luis Escobar, were
investigating an anonymous 9-1-1 telephone call about a
man in a black truck taking pictures of a little girl who was
walking on a sidewalk with her father. The caller also told
the police dispatcher of another incident in the same area
involving an individual taking pictures of girls after school.
While Escobar was trying to find other information about
the call, Novy spotted Davis’s truck. It wasn’t a perfect
match—Davis’s truck was dark green— but it was close, so
Novy decided to follow while waiting for further word from
Escobar. Novy testified that as he was following the truck,
he saw that the registration sticker—displaying the month
of issuance on the Illinois license plate—was obscured, in
violation of state law. See 625 ILCS 5/3-413(b). He decided
to pull Davis over to look into the matter.
When Novy walked up to the truck’s window, Davis asked
about the reason for the stop: “I asked him . . . did I commit
some sort of traffic violation or traffic infraction.” According
to Davis, Novy replied “no” and told him about the 9-1-1
call. Naturally, Davis was troubled by the suggestion
implicit in the call—that he might be some sort of a
pedophile. (There is absolutely nothing in the record to
suggest that Davis is in any respect a bad guy.) Davis was
concerned, however, because he was in fact taking pictures
that day, though not of children. Rather, he was trying to
document a problem with Bolingbrook’s snowplowing which,
on this February day, left piles of snow blocking the side-
walks. Why was he concerned? He uses a wheelchair, and
No. 04-4096 3
the snow piles made it difficult for him to get around.1
Davis had his camera with him in the truck, and the
camera bag was plainly visible in the truck’s cab. When
Novy saw the camera bag, he become more convinced
that he had found the truck he was looking for. He asked
Davis for his driver’s license and proof of insurance,
which Davis didn’t have. And Davis’s driver’s license was
from Indiana. Davis explained that he had moved to Illinois
some 6 months before and had not yet obtained an Illinois
driver’s license. Illinois law requires that an Illinois driver’s
license be obtained within 90 days of a driver’s move into
the state. See 625 ILCS 5/6-102(7).
Other items Novy saw in the cab—rope, duct tape, and
towels covering the upholstery—heightened his suspi-
cions. Concerned that he might have a kidnapper (or a
possible crime involving children) on his hands, he asked
Davis for permission to search the vehicle. Davis says
that when he asked Novy what would happen if he refused,
Novy told him that because he had no valid driver’s license
or proof of insurance, his truck would be impounded and he
would be taken to jail. See 625 ILCS 5/6-101(d). Worried
that he would be unable to get by without his truck, Davis
consented. He got out of the truck and waited with Officer
Escobar (who had by then arrived on the scene) while Novy
looked around the cab. The search turned up additional,
perhaps suspicious, items: a ticket stub from a children’s
zoo, court documents from South Dakota, and an unusual
article of clothing— women’s thong underwear—behind the
driver’s seat.
1
Although fairly described as a “wheelchair-bound person,” Davis
is, it appears, able to do some walking. At one point during the
encounter, he exited the truck and walked to its rear without
assistance.
4 No. 04-4096
At this point, Novy felt that further investigation was
warranted. He conferred with Escobar and decided to
ask Davis for permission to search his house. He pre-
sented Davis with a fairly standard police “consent to
search” form, which Davis signed. The three of them
then went to Davis’s house, where Novy conducted the
search. Finding nothing of concern, Novy ended the encoun-
ter by writing Davis up for three vehicle-code
violations: having no valid driver’s licence, operating an
uninsured vehicle, and displaying an obscured registra-
tion sticker. The whole encounter between Davis and the
officers lasted 2 hours.
Davis eventually sued Officers Novy and Escobar. He
claimed that the initial traffic stop was illegal because the
officers lacked probable cause to believe that he had
committed, or was committing, an offense. On this point,
the district court decided, and neither party disagrees, that
the anonymous tip was an insufficient basis for the
stop—not only was it uncorroborated, see Florida v. J.L.,
529 U.S. 266, 270 (2000); United States v. Johnson,
427 F.3d 1053, 1057 (7th Cir. 2005), but it didn’t describe
anything illegal. (Taking drive-by photos of children may be
suspicious, but by itself it isn’t against the law.) And the
officers did not learn that Davis had an invalid driver’s
license and no proof of insurance until after the stop.
That leaves the registration sticker on Davis’s license
plate. If, as Novy asserts, he saw the obscured sticker while
following Davis, he had probable cause to pull him over for
a violation of the vehicle code, even if the real reason for the
stop was to investigate the anonymous 9-1-1 call. See Whren
v. United States,2 517 U.S. 806, 813 (1996) (officer’s subjec-
tive motive irrelevant to reasonableness of traffic stop);
2
Whren is the seminal case on traffic stops. Strangely, it is
not cited by Davis.
No. 04-4096 5
United States v. Rogers, 387 F.3d 925, 934 n.9 (7th Cir.
2004). But Davis claims that Novy didn’t see the obscured
sticker until later (though he admits that the sticker was in
fact obscured). He relies on three pieces of circumstantial
evidence: (1) when Davis asked about the reason for the
stop, Novy didn’t mention the obscured sticker but instead
told him about the child-picture-taking complaint; (2) Novy
didn’t stop him as soon as he allegedly saw the obscured
sticker; (3) the transcript of the radio communications
among Novy, Escobar, and the dispatcher contains no
mention of an obscured sticker.
Like Magistrate Judge Keys, we do not believe that
this evidence seriously calls into question whether Novy
saw the obscured sticker before stopping Davis’s truck. It is
undisputed that Novy followed Davis’s truck for about
a half a mile before signaling him to pull over. We cannot
imagine that Novy did not look at the truck’s rear license
plate during that time. After all, that’s what police offi-
cers do when following a vehicle. Also, the fact that Novy
didn’t stop Davis immediately upon seeing the sticker
means little—police are not required to make their move at
the first sign of an offense, and in this case it was reason-
able for Novy to wait and see if any further information was
forthcoming from Officer Escobar. Nor is it unexpected that
an officer will hold back from telling a motorist all of his
reasons for initiating a stop. Simply put, Davis does not
dispute that the sticker was obscured, and he has not
presented sufficient evidence to persuade a rational
factfinder that Novy did not see it before the stop as he
testified.
Davis also claims that he was coerced into consenting
to the search of his truck and his home. The voluntariness
of a consent to search is judged by the totality of the
circumstances. See Schneckloth v. Bustamonte, 412 U.S.
218, 229 (1973); Ruvalcaba v. Chandler, 416 F.3d 555, 560
(7th Cir. 2005). Davis’s argument rests primarily on two
6 No. 04-4096
circumstances. First, the nature of the allegation: under
suspicion of possible pedophile-like behavior, his choice was
to cooperate or risk an unbearable stigma. But if
grave accusations were inherently coercive, as this ar-
gument suggests, then a valid consent would be impos-
sible to obtain in connection with any serious offense.
Davis identifies a second circumstance which is more
specific: Novy’s declaration that if Davis did not consent
to the searches, his truck would be impounded and he
would be taken into custody. But this wasn’t a baseless
threat: the Illinois Vehicle Code directs that a driver who is
lacking both license and insurance “shall have his or her
motor vehicle immediately impounded by the arresting law
enforcement officer.” 625 ILCS 5/6-101(d). We asked the
parties at oral argument whether this provision imposes a
binding obligation on the arresting officer to impound the
vehicle. They have not called our attention to any authorita-
tive interpretation on the point by Illinois courts. But the
best, and we suggest the most common-sense understanding
of the statute, is that an officer can exercise discretion on
whether a vehicle should be impounded. After all, if im-
pounding of vehicles under all circumstances was required,
a small village like Bolingbrook (population 40,843) could
very well be overrun with impounded cars.
Whether mandatory or discretionary, the statute au-
thorized Novy to impound Davis’s truck. And given what
Novy was faced with—a report of suspicious photo-taking;
a driver with an out-of-state license carrying rope, duct
tape, towels, and ladies’ underwear in his truck—it was
reasonable for him to use the tools available to him to
investigate further. One way would have been to impound
the vehicle and perform the search when the truck was
in custody. Another way was to obtain Davis’s consent.
He gave Davis a reasonable choice, and we can’t con-
clude that Novy’s offer was coercive. And, it is important to
note, Davis got exactly what he hoped to get by consenting:
No. 04-4096 7
He was not arrested and his truck was not impounded. The
fact that Novy apparently elected not to enforce the Illinois
law to its fullest doesn’t mean Davis’s consent was illegally
obtained. It would be different, of course, if the threat of
arrest and/or impoundment of the truck was unauthorized
by state law. In that case, Novy would have obtained a
consent with an empty threat, and the result would be
different.
Finally, although the stop here was permissible with
probable cause under Whren, it could be argued that
the information available to Novy might well have justi-
fied a brief investigatory stop based on reasonable suspicion
under Terry v. Ohio, 392 U.S. 1 (1968). Given that we live in
a time of increasing crimes against children— what with
“Amber Alerts” and all—the limited intrusion of a brief
traffic stop under circumstances like those present in this
case cannot be easily labeled as unlawful.
We agree with the district court that no reasonable jury
could find that Novy lacked probable cause to stop Davis or
that Davis’s consent to the search of his truck and his home
was legally coerced. We therefore AFFIRM the court’s
judgment.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-6-06
| {
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[Cite as State v. Pippert, 2016-Ohio-1352.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 14CA010698
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DORIS J. PIPPERT OBERLIN MUNICIPAL COURT
COUNTY OF LORAIN, OHIO
Appellant CASE No. 14CRB00156
DECISION AND JOURNAL ENTRY
Dated: March 31, 2016
WHITMORE, Presiding Judge.
{¶1} This appeal arises from Appellant Doris J. Pippert’s challenge to (1) her sentence
for vehicular manslaughter and failure to maintain reasonable control of a vehicle, and (2) the
trial court’s denial of her motion to withdraw a no contest plea. We affirm.
I
{¶2} Ms. Pippert (age 77) killed John McBride (age 80) when she backed her car into
him in a grocery store parking lot a few days before Christmas in 2013. Ms. Pippert was
illegally parked in a handicap space near the store entrance. When Ms. Pippert finished her
shopping, Mr. McBride apparently had just finished his own holiday shopping and was returning
his shopping cart to the store when he offered to help Ms. Pippert by also returning her shopping
cart. After Mr. McBride returned the carts, he was walking several feet behind the row of cars
where Ms. Pippert was parked when Ms. Pippert backed out of her parking space and hit him
with her passenger rear side bumper and trunk. The force of the contact threw Mr. McBride to
2
the ground several feet away. Mr. McBride was transported by paramedics and then heliported
to a trauma center, but later died of “blunt impacts to [the] head” sustained in the collision.
{¶3} Ms. Pippert told a police officer who responded to the scene of the collision that
wet shoes caused her foot to slip off the brake and onto the gas pedal as she was leaving her
parking space. Video surveillance footage of the parking lot shows Ms. Pippert backing
smoothly out of the parking space until she hit Mr. McBride.
{¶4} Ms. Pippert told the police officer that she did not see Mr. McBride. She did not
know that she struck anyone until she pulled forward to return to the parking space and exited
her vehicle. The video surveillance footage appears to show that Mr. McBride observed Ms.
Pippert’s vehicle backing out, realized that he was in danger of being hit, and tried to move out
of the vehicle’s path.
{¶5} As a result of the collision, Ms. Pippert was charged in the Oberlin Municipal
Court with (1) failure to maintain reasonable control of a motor vehicle in violation of R.C.
4511.202, a minor misdemeanor, and (2) vehicular manslaughter in violation of R.C.
2903.06(A)(4), a misdemeanor of the second degree. Ms. Pippert entered a no contest plea to
both charges. She had no previous convictions for moving traffic violations and no criminal
record.
{¶6} Following Ms. Pippert’s no contest plea, the court sentenced her on the vehicular
manslaughter charge to a suspended jail sentence of thirty days, the maximum fine of $750, and
an operator’s license suspension with no driving privileges for the maximum period of two years.
The entry required Ms. Pippert to “re-test” at the end of the license suspension “in order to
reinstate her right to drive.” The trial court also fined Ms. Pippert $150 on the charge of failure
to maintain reasonable control.
3
{¶7} Subsequent to sentencing, Ms. Pippert filed a motion to (1) vacate the sentence
and (2) withdraw her plea of no contest. Following a hearing on July 25, 2014, the trial court
granted the motion to vacate the sentence in part and to the extent that the court lacked statutory
authority to require Ms. Pippert to re-test to have her operator’s license reinstated following her
license suspension. The court then re-imposed the original sentence in its entirety, excepting
only the re-test requirement. The court denied Ms. Pippert’s motion to withdraw her no contest
plea. The court further denied Ms. Pippert’s motion to stay her sentence pending an appeal.
{¶8} Ms. Pippert now appeals from her sentence and the trial court’s denial of her
motion to withdraw her no contest plea. She raises two assignments of error for our review.
II
Assignment of Error Number One
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
REVERSIBLE ERROR WHEN IT DENIED WITHOUT A HEARING
APPELLANT’S MOTION TO WITHDRAW HER NO CONTEST PLEA PRIOR
TO RESENTENCING HER.
{¶9} In her first assignment of error, Ms. Pippert argues that the trial court abused its
discretion when it did not hold a hearing before denying her motion to withdraw her no contest
plea. We disagree.
{¶10} A trial court must hold a hearing on a “presentence” motion to withdraw a plea.
State v. Xie, 62 Ohio St.3d 521, 527 (1992); State v. Wilborn, 9th Dist. Summit No. 25352, 2011-
Ohio-1038, ¶ 8. Ms. Pippert argues that her motion to withdraw her no contest plea should be
considered a presentence motion under Crim.R. 32.1. Crim.R. 32.1 states:
A motion to withdraw a plea of guilty or no contest may be made only before
sentence is imposed; but to correct manifest injustice the court after sentence may
set aside the judgment of conviction and permit the defendant to withdraw his or
her plea.
4
Under the rule, a presentence motion to withdraw a plea is entitled to special consideration and
“should be freely and liberally granted.” Xie at 527.
{¶11} Ms. Pippert contends that her motion to withdraw was a presentence motion
under Rule 32.1 because the original sentence contained a re-testing requirement not permitted
by statute, and thus was void in its entirety under State v. Boswell, 121 Ohio St.3d 575, 2009-
Ohio-157, syllabus. In Boswell, the defendant moved to vacate his plea based on a sentence that
failed to include mandatory post-release control. The Supreme Court of Ohio concluded that
“[b]ecause a sentence that does not conform to statutory mandates * * * is a nullity and void, it
must be vacated * * * plac[ing] the parties in the same position they would have been in had
there been no sentence.” Boswell at ¶ 8, quoting State v. Simpkins, 117 Ohio St.3d 420, 2008-
Ohio 1197, ¶ 22. The court based its holding on the principle expressed in State v. Bezak that
the effect of vacating a void sentence is to place the parties in the same position “as if there had
been no sentence.” (Emphasis sic.) State v. Bezak, 114 Ohio St.3d 94, 2007–Ohio–3250, ¶ 13,
citing Romito v. Maxwell¸ 10 Ohio St.2d 266, 267 (1967). On this basis, the Supreme Court
found in Boswell that “[a] motion to withdraw a plea of guilty or no contest made by a defendant
who has been given a void sentence must be considered as a presentence motion under Crim.R.
32.1.” Boswell at syllabus.
{¶12} The State agrees with Ms. Pippert that Boswell compels a conclusion that Ms.
Pippert’s motion to withdraw occurred presentence. The State argues that (1) it was nonetheless
within the court’s discretion to deny the presentence motion, and (2) the trial court did in fact
hold the required hearing on the motion to withdraw on July 25, 2014, during the same
proceeding in which the court granted the motion to vacate the sentence in part.
5
{¶13} We find that the parties’ reliance on Boswell is misplaced. In State v. Fischer,
128 Ohio St.3d 92, 2010-Ohio-6238, the Supreme Court qualified the principle underlying Bezak
(and Boswell) that the effect of vacating a void sentence is to place the parties in the same
position as if there had been no sentence. In Fischer, the Court considered a sentence that
improperly imposed post-release control and found that, when a defendant receives a sentence
that does not properly include a statutory penalty, only “that part of the sentence is void and
must be set aside. Neither the Constitution nor common sense commands anything more.”
(Emphasis sic.) Fischer at ¶ 26. Thus, contrary to the principle expressed in Boswell, “only the
offending portion of the sentence is subject to review and correction.” Id. at ¶ 27. The lawful
aspects of a sentence are not void insofar as they are not dependent upon a portion of the
sentence that fails to conform to a statutory mandate. See id. In light of this clarification in
Fischer, we believe that, with the issue properly before it, the Supreme Court would overrule its
holding in Boswell and determine that a Crim.R. 32.1 motion is reviewable as a postsentence
motion when a sentence has been improperly imposed in part and, therefore, is void only in part.
See State v. Hubbard, 9th Dist. Summit No. 25141, 2011-Ohio-2770, ¶ 4 (noting that Fischer
calls the holding in Boswell into question).
{¶14} Our conclusion that a motion to withdraw a plea is reviewable as a postsentence
motion when the original sentence was void only in part is consistent with decisions of other
appellate courts in this state. See State v. Thomas, 1st Dist. Hamilton Nos. C-100411, C-100412,
2011-Ohio-1331, ¶ 16 (expressing the belief that the Fischer court would have overruled the
holding in Boswell with regard to Rule 32.1 if the issue had been before it); State v. Hazel, 10th
Dist. Franklin Nos. 10AP-1013, 10AP-1014, 2011-Ohio-4427, ¶ 17 (rejecting defendant’s
invitation to characterize his motion to withdraw as a presentence motion on the premise that the
6
entire sentence was void); State v. Christie, 3d Dist. Defiance No. 4-10-04, 2011-Ohio-520, ¶ 25
(finding that review of a motion to withdraw a plea as a postsentence motion is consistent with
Fischer, which holds that a sentence improperly imposed in part is only void in part).
{¶15} Under Fischer, we find that Ms. Pippert’s original sentence was void only to the
extent that the trial court did not have statutory authority to impose a re-test requirement before
Ms. Pippert could reinstate her operator’s license. The remainder of Ms. Pippert’s sentence was
unaffected and remained valid. Accordingly, Ms. Pippert’s motion to withdraw her no contest
plea, which was made after the original sentence was imposed, was a postsentence motion for
purposes of Crim.R. 32.1.
{¶16} A trial court is not required to hold a hearing on a postsentence motion to
withdraw a plea if the facts alleged by the defendant would not require the plea to be withdrawn
even when those facts are accepted by the court as true. State v. Owens, 8th Dist. Cuyahoga No.
94152, 2010-Ohio-3881, ¶ 22; State v. Nathan, 99 Ohio App.3d 722, 725 (3d Dist.1995). A
postsentence motion to withdraw a plea may only be granted in “extraordinary cases” and in the
presence of “manifest injustice.” State v. Smith, 49 Ohio St.2d 261, 264 (1977); see Crim.R.
32.1. The burden of demonstrating a manifest injustice belongs to the defendant. Smith at 264.
Moreover, the decision whether to grant a motion to withdraw a guilty plea rests within the
sound discretion of the trial court. Id. Thus, an appellate court will not reverse a trial court’s
denial of a motion to withdraw a plea absent an abuse of discretion. Nathan at 725. Under this
standard, we determine whether the trial court’s decision was arbitrary, unreasonable, or
unconscionable, and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983).
7
{¶17} Ms. Pippert did not assert any factual basis for a finding of manifest injustice in
her motion to withdraw or during the June 25, 2014 hearing in the trial court. Nor does she
argue any facts to support a finding of manifest injustice on appeal. Instead, Ms. Pippert has
argued only that her motion to withdraw should be considered a presentence motion under
Crim.R. 32.1. We have rejected this argument for the reasons stated. Accordingly, Ms. Pippert
has not met her burden to assert facts that, if taken as true, would establish manifest injustice.
{¶18} Because Ms. Pippert has not met her burden to demonstrate manifest injustice, she
has not shown that she was entitled to a hearing on her postsentence motion to withdraw. On
this basis, Ms. Pippert’s first assignment of error is overruled.
Assignment of Error Number Two
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
REVERSIBLE ERROR WHEN IT SENTENCED APPELLANT TO PAY THE
MAXIMUM FINE PERMITTED BY LAW AND SUSPENDED HER
PRIVILEGE TO OPERATE A MOTOR VEHICLE FOR THE MAXIMUM
PERIOD ALLOWED BY LAW, REFUSING TO GRANT HER LIMITED
DRIVING PRIVILEGES.
{¶19} In her second assignment of error, Ms. Pippert argues that the trial court abused
its discretion in sentencing her when the court ordered her to pay the maximum fine and also
suspended her driver’s license for the statutory-maximum period of two years. We disagree.
{¶20} Sentencing generally is within the sound discretion of the trial court; a sentence
will not be disturbed if it is within the parameters of the applicable statute. City of Cuyahoga
Falls v. Bradley, 9th Dist. Summit No. 21979, 2004-Ohio-4583, ¶ 5. However, a trial court
abuses its discretion in imposing a misdemeanor sentence when it fails to consider the factors set
forth in R.C. 2929.22. Id.; See also State v. Jones, 9th Dist. Wayne No. 02CA0018, 2003-Ohio-
20, ¶ 6-7.
8
{¶21} R.C. 2929.22(B)(1) provides that a court shall consider “all of the following
factors” in determining the appropriate sentence for a misdemeanor: (a) “[t]he nature and
circumstances of the offense or offenses”; (b) “[w]hether the circumstances regarding the
offender and the offense or offenses indicate that the offender has a history of persistent criminal
activity and that the offender’s character and condition reveal a substantial risk that the offender
will commit another offense”; (c) whether the offender is a danger to others and whether “the
offender’s conduct has been characterized by a pattern of repetitive, compulsive, or aggressive
behavior with heedless indifference to the consequences”; (d) “[w]hether the victim’s youth, age,
disability, or other factor made the victim particularly vulnerable to the offense or made the
impact of the offense more serious”; (e) the likelihood that the offender will commit future
offenses in general; (f) whether a condition traceable to service in the armed forces was a
contributing factor in the offender’s commission of the offense or offenses; and (g) “[t]he
offender’s military service record.”R.C. 2929.22(B)(1)(a)-(g).
{¶22} The sentencing court also “may consider any other factors that are relevant to
achieving the purposes and principles of sentencing set forth in section 2929.21 of the Revised
Code.” R.C. 2929.22(B)(2). Under R.C. 2929.21, “[t]he overriding purposes of misdemeanor
sentencing are to protect the public from future crime by the offender and others and to punish
the offender.” R.C. 2929.21(A). “To achieve those purposes, the sentencing court shall consider
the impact of the offense upon the victim and the need for changing the offender’s behavior,
rehabilitating the offender, and making restitution to the victim of the offense, the public, [or
both].” Id.
{¶23} At the sentencing hearing, the trial court did not explicitly state that it relied on
the criteria set forth in R.C. 2929.21 and 2929.22 in imposing Ms. Pippert’s sentence. “While it
9
is preferable that the trial court state on the record that it has considered the statutory criteria, the
statute imposes no requirement that it do so.” Bradley, 2004-Ohio-4583 at ¶ 7, citing State v.
Polick, 101 Ohio App.3d 428, 431 (4th Dist.1995). “Instead, in the case of a silent record, the
presumption exists that the trial court has considered the statutory criteria absent an affirmative
showing by the [defendant] that it did not.” Bradley at ¶ 7.
{¶24} Contrary to Ms. Pippert’s claim, the record in this case demonstrates that the trial
court did comply with the misdemeanor sentencing statute when imposing the maximum fine
and license suspension upon her conviction of vehicular manslaughter, and the fine for failure to
maintain control. Ms. Pippert argues that the “trial court * * * did not consider * * * Pippert’s
past life, her current situations, and/or her well being.” However, the court expressly considered
a presentence investigation report, statements from Mr. McBride’s family, comments of the
prosecutor and Ms. Pippert’s counsel, and Ms. Pippert’s personal statement of remorse and
apology to Mr. McBride’s family. The presentence investigation report included detailed
information about Ms. Pippert, including: (1) her age; (2) her lack of criminal or traffic record;
(3) that Ms. Pippert was employed; (4) her long-term residence in Amherst, Ohio with a
handicapped husband; and (5) that she suffers from chronic obstructive pulmonary disease and
back pain. The court took particular notice of Ms. Pippert’s clean driving record. The court also
viewed the video footage of the accident. In sentencing Ms. Pippert, the court imposed the
license suspension and fines in consideration of the magnitude of the harm to Mr. McBride, but
did not impose a jail sanction. Under the circumstances, the record shows that the court properly
considered the enumerated factors in R.C. 2929.22, and the policies underlying misdemeanor
sentencing set forth in R.C. 2929.21.
10
{¶25} Ms. Pippert has not pointed to any portion of the record that rebuts the
presumption that the trial court properly considered the factors set forth in the misdemeanor
sentencing statute. Indeed, the evidence shows that the court carefully considered the relevant
factors and weighed considerations in favor of Ms. Pippert against the catastrophic nature of the
harm to Mr. McBride. Therefore, we find that the trial court did not abuse its discretion in
sentencing Ms. Pippert. On this basis, Ms. Pippert’s second assignment of error is overruled.
III
{¶26} Ms. Pippert’s assignments of error are overruled. We affirm the sentence
imposed by the Oberlin Municipal Court for vehicular manslaughter and failure to maintain
reasonable control of a vehicle. We also affirm the trial court’s denial of Ms. Pippert’s motion to
withdraw her no contest plea.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Oberiln Municipal
Court, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
11
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
MOORE, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
BARRY ECKSTEIN, Attorney at Law, for Appellant.
FRANK S. CARLSON, Prosecuting Attorney, for Appellee.
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877 P.2d 1302 (1994)
Russell HAIRE, Appellant,
v.
STATE of Alaska, Appellee.
No. A-4826.
Court of Appeals of Alaska.
July 29, 1994.
*1303 Thomas A. Ballantine, III, for appellant.
Robert J. Collins, Asst. Dist. Atty., Edward E. McNally, Dist. Atty., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee.
Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.
OPINION
BRYNER, Chief Judge.
Russell D. Haire pled no contest to an information charging him with two counts of sexual abuse of a minor in the first degree. AS 11.41.434(a)(1). In return for Haire's no contest pleas, the state dismissed a ten-count indictment accusing Haire of multiple acts of first- and second-degree sexual abuse of minors, as well as of unlawful exploitation of a minor and misconduct involving a controlled substance in the third degree; the state also agreed to a total sentencing cap of twenty-five years' imprisonment.
Haire's offenses are unclassified felonies, punishable by maximum terms of thirty years. AS 12.55.125(i). As a first felony offender, Haire was subject to presumptive terms of eight years. Haire proposed no mitigating factors and conceded the existence of four statutory aggravating factors proposed by the state: that the victims were particularly vulnerable due to extreme youth; that the offenses involved more than one victim; that his conduct was among the most serious included in the definition of the offense; and that the offenses were committed against family members who were living with him. AS 12.55.155(c)(5), (9), (10), and (18). Superior Court Judge Karen L. Hunt sentenced Haire to consecutive terms totalling twenty-five years with two suspended. Haire appeals, contending that his sentence is excessive. We remand for further consideration and additional findings.
Haire's convictions stem from his sexual abuse of two stepdaughters, who were then nine and seven years old, and numerous other young children who were friends of Haire's stepchildren. The abuse lasted over a period of approximately four months and consisted of numerous and varied acts of sexual contact and penetration. During this time, Haire displayed X-rated videos to his stepchildren and their companions and offered them cigarettes, liquor, and marijuana. He then engaged in sexual contact with them. Haire would at times entice his young *1304 victims into collective sexual activity, both with him and among themselves. Haire photographed these activities and had various children take photographs of each other, unclothed and in sexually explicit poses. To prevent disclosure of his activities, Haire threatened to reveal photographs of his victims if they reported his acts of abuse. After the abuse was reported and an investigation commenced, Haire threatened the parents of at least one of his victims with public disclosure of their child's photographs if they cooperated with the investigation. Abundant evidence at the sentencing hearing established that Haire's victims and their families suffered devastating psychological and emotional trauma as a result of Haire's crimes.
Although Haire was nominally a first offender, evidence at the sentencing hearing established that he had a long history of sexually and physically abusive conduct, which included sexual and physical abuse of his former wife, who was a fourteen-year-old runaway when Haire initially met and became involved with her, as well as repeated sexual abuse of his and his former wife's daughter, who was between two and four years old at the time of the abuse. A psychological evaluation prepared at Haire's request for sentencing purposes found Haire to be "in the highest risk category for continued molesting of children" and concluded:
The treatment prognosis is guarded at best for Russell. His personality organization leads to a great deal of grandiosity, suspicion, and a tenuous reality base. These aspects in concert will make it difficult for him to accept the kind of confrontational therapy that is the treatment of choice for the sexual perpetrator.
Haire's own statements at the sentencing hearing tended to confirm this description. In the course of a rambling allocution, although grudgingly and somewhat vaguely acknowledging responsibility for a limited number of the inappropriate acts underlying his charges, Haire discounted, disputed, and denied most of the accusations and depicted himself as the true victim in the case: a victim of society, of the legal system, of his own attorney, of his former wife, of the inmates with whom he was incarcerated, of the parents of his victims, and, remarkably, even of the children whom he had abused.
In imposing sentence, the superior court accepted as established the four aggravating factors proposed by the state. Finding Haire's case "exceptionally aggravated on the defendant's conduct alone," the court sentenced Haire to adjusted presumptive terms of twelve and one-half years with one year suspended on each count. These sentences were imposed consecutively, for a composite term of twenty-five years with two years suspended.
On appeal, Haire first argues that the sentencing court failed to expressly find that the state's proposed aggravating factors were supported by the evidence. Haire acknowledges that he conceded the applicability of the factors; he nevertheless contends that the court had an independent duty to determine that the proposed aggravating factors actually had a factual basis in the evidence. See Connolly v. State, 758 P.2d 633, 638 (Alaska App. 1988). Although the sentencing court did not expressly find sufficient evidence to support the proposed aggravating factors, our own review of the record convinces us that there was ample information to establish each proposed factor by clear and convincing evidence. The sentencing court's detailed remarks addressing the aggravated nature of Haire's crimes make it clear that the court was aware of, and gave appropriate weight to, this evidence. We find no plain error.
Haire next alleges that his total sentence of twenty-five years with two years suspended is disproportionately high. He relies on the ten- to fifteen-year benchmark this court established in State v. Andrews, 707 P.2d 900, 913 (Alaska App. 1985), as the generally appropriate sentencing range for aggravated first-degree sexual assault and sexual abuse cases involving first felony offenders. Haire complains that the sentencing court failed to consider the seriousness of his offenses in relation to the offenses of other first offenders who have received sentences falling within the Andrews benchmark range.
*1305 In Williams v. State, 809 P.2d 931, 935 (Alaska App. 1991), we noted that,
while an intrinsic tension may exist between the requirements of individualized sentencing and the need for reasonable sentencing uniformity, in the long run this tension can meaningfully be resolved only through awareness of existing sentencing practices and consideration of the case at hand in relation to other similar cases.
We found the consideration of each case in relation to other similar cases to be warranted by the principle of sentencing uniformity, expressed by the legislature with "unmistakable clarity" in AS 12.55.005(1), which requires the sentencing court to consider "the seriousness of the defendant's present offense in relation to other offenses." Williams, 809 P.2d at 934. We concluded:
At a minimum, ... the principle of reasonable sentencing uniformity requires a sentencing judge who decides that an offender deserves a sentence which is significantly different from sentences previously given to similarly situated offenders to expressly find some legitimate basis for the difference some basis related to "legally relevant sentencing criteria." That basis should be spelled out on the sentencing record, so that the defendant and a reviewing court can understand the reasons for the disparity.
Id. at 935 (citation omitted).
In the present case, while it did not specifically consider sentences received by other similar offenders, the sentencing court was generally aware of the Andrews benchmark when it fashioned Haire's sentence. In relevant part, the court stated:
I must follow the Andrews decision and its [progeny]. And that is a decision that makes it clear that even an aggravated sentence cannot exceed fifteen years maximum when it is the defendant's first conviction for the crime of sexual abuse of a minor. Under these decisions and the record before me, I find that the defendant's sexual abuse was perpet[rated] upon multiple victims on multiple occasions. In addition, he has committed multiple assaults upon the same single victim on multiple occasions. Given this inherently aggravated conduct of the defendant, as well as the applicability of the specific statutory aggravators, I conclude that the sentencing goal of protection of the minor public requires that the defendant be isolated for the maximum period allowed under the Andrews line of appellate decisions. And I find that each of the counts for which he stands before the court for sentencing should be considered as separate counts and he will be given the maximum sentence up to the [negotiated total twenty-five-year sentencing] cap on each count.
Although the sentencing court's awareness of, and its declared willingness to follow, the applicable sentencing benchmark would, under ordinary circumstances, satisfy the requirement of considering Haire's case in relation to other similar cases, the sentencing remarks quoted above indicate that the court in this case misunderstood the Andrews benchmark in two significant respects, one relating to the scope of the benchmark and the other to its flexibility.
With respect to the benchmark's scope, the court was mistaken in its apparent belief that consecutive terms of up to fifteen years per count (or twelve and one-half years in this case due to the negotiated twenty-five-year total sentencing cap) would fall within the Andrews benchmark range. The benchmark specified in Andrews was not meant to apply on a count-by-count basis. In Andrews, this court recognized a benchmark sentencing range of ten to fifteen years to serve for first offenders convicted of aggravated instances of child sexual abuse. We defined an "aggravated" case as one in which the defendant had abused multiple victims, had committed multiple assaults on a single victim, or had inflicted serious injury to one or more victims. Andrews, 707 P.2d at 913. The Andrews benchmark was thus meant to indicate the appropriate range for the total sentence that would ordinarily be justified for a first offender convicted in an aggravated case of first-degree sexual assault or abuse. Here, although the sentencing court evidently believed that the sentences it imposed fell within the Andrews benchmark range, Haire's composite term of twenty-five years with two *1306 years suspended significantly exceeds that range.
The sentencing court was also apparently mistaken with respect to the flexibility of the Andrews benchmark. The sentencing court's reference to the "maximum period allowed under the Andrews line of appellate decisions" seems to indicate that the court viewed Andrews as establishing the maximum permissible term for a first offender in Haire's shoes. This is an inaccurate view of the benchmark's function: "Sentencing benchmarks place no hard and fast restrictions on the scope of the sentencing court's authority in any given case." Ross v. State, 877 P.2d 777, 780 (Alaska App. 1994).
As we observed recently in Sharp v. State, 837 P.2d 718, 727 (Alaska App. 1992):
[T]he 10- to 15-year benchmark range established in Andrews is not an inflexible rule of law, but rather an historically based starting point for analyzing Sharp's sentence under the particular facts of his case. If there are articulable and valid reasons for imposing a sentence outside that benchmark range, the resulting sentence will not be clearly mistaken. Williams v. State, 809 P.2d 931, 933-35 (Alaska App. 1991).
With specific reference to the Andrews benchmark, this court has consistently recognized that a composite term exceeding fifteen years will be appropriate when a first felony offender is convicted in an exceptionally aggravated case of first-degree sexual assault or abuse. Sharp, 837 P.2d at 726; Howell v. State, 758 P.2d 103, 107 (Alaska App. 1988). In such exceptional first-offense cases, we have typically approved composite sentences involving up to twenty years of unsuspended incarceration; on rare occasions, when faced with particularly convincing reasons, we have approved even longer first-offense sentences sentences in the range of Haire's:
In several exceptionally aggravated cases we have approved sentences in excess of the ten- to fifteen-year benchmark for first offenders. These cases have involved multiple offenses and multiple victims. Even so, we have never approved a first offender sentence of more than twenty years of unsuspended incarceration except when the defendant used a significant amount of violence, had previously been incarcerated for a substantial period, or both.
Howell, 758 P.2d at 107.
In the present case, the sentencing court expressly found that Haire's case was exceptionally aggravated and gave a detailed and comprehensive explanation of its reasons for so finding. Our review of the sentencing record discloses nothing to indicate that the court erred in its characterization of the seriousness of Haire's conduct. The sentencing court's findings, coupled with the fact that Haire was convicted for conduct involving both multiple victims and multiple assaults committed over a significant period of time,[1] strongly suggest that his case is deserving of inclusion among other exceptionally aggravated cases. And, even though Haire has never previously been incarcerated and does not appear to have used significant violence the characteristics identified in Howell as distinguishing first-offense cases in which sentences of more than twenty years have been approved it is conceivable that other extraordinary factors may be identified to justify an unsuspended term in excess of twenty years.[2]
Nevertheless, the determination of an appropriate sentence is a matter for the sentencing court in the first instance, and Haire *1307 is entitled to a sentence that is based on a correct application of the sentencing principles governing his case. The sentencing court, having taken the mistaken view that the sentence it imposed fell within the Andrews benchmark, did not have occasion to consider Haire's conduct in relation to the conduct of other first felony offenders for whom total sentences exceeding fifteen years have been approved.[3] Because the sentence actually imposed was based on an incorrect interpretation of the Andrews sentencing benchmark and because the sentencing court did not evaluate Haire's case in relation to other cases in which sentences exceeding this benchmark have been imposed, we must vacate the sentence and remand this case for resentencing.
The sentence is VACATED. This case is REMANDED for resentencing in conformity with this opinion.
NOTES
[1] Andrews' definition of an "aggravated" case as one in which the defendant abuses multiple victims, or commits multiple assaults on a single victim, or inflicts serious injury to one or more victims, Andrews, 707 P.2d at 913, indicates that cases involving both multiple assaults and multiple victims may appropriately be treated as exceptionally aggravated.
[2] In State v. Hernandez, 877 P.2d 1309 (Alaska App. 1994), we emphasized that sentencing guidelines such as those exemplified in Andrews "are not static. They are descriptive rather than prescriptive, reflecting historical trends rather than establishing future imperatives. Courts ... must thus remain sensitive to change and receptive to the possibility that, in any given case, unique facts, unusual circumstances, or evolving social norms may justify a departure from historically established sentencing practices."
[3] We have surveyed and commented on the cases falling in this category on two occasions. Sharp, 837 P.2d at 726; Howell, 758 P.2d at 107. We note that, at the sentencing hearing, the state relied primarily on Curl v. State, 843 P.2d 1244 (Alaska App. 1992). In the context of the present case, Curl is largely inapposite, since it involved a second felony offender who was subject to a presumptive term of fifteen years almost twice the presumptive term that served as the starting point for sentencing in the current case.
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261 F.Supp. 367 (1966)
FOUKE FUR COMPANY, Plaintiff,
v.
Edwin O. BOOKWALTER, District Director of Internal Revenue, Defendant.
No. 65 C 218(1).
United States District Court E. D. Missouri, E. D.
December 2, 1966.
Henry C. Bryan, Jr., McDonald, Wright & Bryan, St. Louis, Mo., for plaintiff.
Richard D. FitzGibbon, Jr., U. S. Atty., and John A. Newton, Asst. U. S. Atty., St. Louis, Mo., Jerome Fink, Elliott Kajan, Attys., Dept. of Justice, Tax Div., Washington, D. C., for defendant.
MEMORANDUM OPINION
HARPER, Chief Judge.
This suit was instituted by the plaintiff for a refund of income taxes paid by the plaintiff as a result of a deficiency assessment made in 1963 for the year 1956. The suit was timely filed and jurisdiction of this Court exists under 28 U.S.C.A. § 1346(a) (1). The deficiency assessment results from the disallowance of a deduction claimed by the taxpayer for a payment of $25,000.00 which the taxpayer made to the widow of a deceased president and member of the company board of directors.
*368 The issue was submitted to the Court on oral testimony, including exhibits, portions of depositions, a stipulation of facts, and the court file in Mary L. Gibbins v. United States of America (62C 134(3)), a case previously disposed of in this court (Regan, J.).
At the trial a part of the depositions of Samuel J. Pingree and Charles L. Moll taken in this case were offered in evidence, and a part of three other depositions, being Samuel J. Pingree, Charles L. Moll and Thomas F. McDonald, taken May 24, 1963, in Gibbins v. United States (supra), were offered and conditionally received in evidence for the defendant, and now form a preliminary issue in this suit. The defendant during the trial asked the court to take judicial notice of the court's file in Gibbins v. United States (supra), a case disposed of in this district in 1963, of which this court can and does take judicial notice. Meredith v. Van Oosterhout, 8 Cir., 286 F.2d 216, 217.
The facts show that one G. Donald Gibbins died on December 28, 1955, while president of the plaintiff corporation, Fouke Fur Company. He had been vicepresident of the company from its organization in 1921 until June 27, 1951, when he was elected president. Mr. Gibbins owned one-third of the outstanding shares of Fouke Fur Company and was also a member of the board of directors from 1922 until his death in 1955.
Mr. Gibbins received the following compensation from the plaintiff from fiscal year 1951 through fiscal year 1955:
Year ended 11/30/51 $40,065.42
11/30/52 41,934.07
11/30/53 43,187.67
11/30/54 43,325.20
11/30/55 46,412.36
In the fiscal year 1956 prior to his death, Mr. Gibbins earned and received salary payments of $3,320.40, his salary for December of 1955.
On January 9, 1956, a special meeting of the board of directors of the plaintiff corporation was held, and the board, among other things, adopted the following resolution:
"BE IT RESOLVED, that in consideration of the long and faithful service to the Company by G. Donald Gibbins there be paid to his widow, Mary L. Gibbins, the sum of $25,000.00, payable in one sum."
Pursuant to the above resolution, $25,000.00 was paid in a lump sum to Mary L. Gibbins by the plaintiff in its fiscal year ending November 30, 1956. Besides the payment of $25,000.00, Mrs. Gibbins also received $6,000.00 in group life insurance under the Fouke Fur Company group plan, and benefits payable under the company pension plan amounting to $21,445.57. Gibbins died before reaching the age of sixty-five, and since he had not set up his pension plan for joint and last survival, said pension plan benefits consisted solely of a return of Mr. Gibbins' contributions ($18,876.74) to the pension fund, together with interest thereon to the date of his death. Had Gibbins lived another four or five months, until he reached sixty-five, he, or his wife, if he died thereafter, would have received an annuity under the company pension plan which could have amounted to a considerable sum of money. As it was, Gibbins' estate collected only the amount of money that he put into the annuity and not the amounts the company had paid into the pension fund.
The payment to Mrs. Gibbins of $25,000.00 was not entered in the Company's annual audit report as of November 30, 1956 (Defendant's Exhibit A), as either officers' salaries or as employees' pensions paid under the general heading "Administrative and General Salaries," but was entered as Payment to widow of deceased officer under the general heading "Other Expenses". Similarly, the payment was not entered under the heading "Compensation of Officers" or under the heading "Amounts contributed under, (a) pension, annuity, stock bonus, or profit sharing" in the plaintiff's tax return for the fiscal year 1956 (Defendant's Exhibit B), but instead was entered *369 under "Other Deductions," "Payment to widow of deceased officer."
The plaintiff at the request of the Internal Revenue Service on January 26, 1960, executed a consent extending until June 20, 1961, the time for assessment of any income tax deficiency for the fiscal year ending November 30, 1956, and subsequently executed further consents extending the time for assessment of said income tax for said tax year to December 31, 1963. On January 27, 1960, Mary L. Gibbins executed a form of consent extending through June 30, 1961, the period of limitations upon the assessment of federal income tax for the year 1956. On March 10, 1961, the Internal Revenue Service made an additional assessment against Mary L. Gibbins for 1956 income tax, a part of which involved $20,000.00 of the payment of $25,000.00 to Mary L. Gibbins by the plaintiff.
On July 25, 1961, Mary L. Gibbins filed with the District Director of Internal Revenue a claim for a refund of $13,599.37, with interest, of 1956 income tax, and included in the claim for refund was the tax paid on the $20,000.00 of the $25,000.00 payment by the plaintiff, which was disallowed. On April 3, 1962, suit was brought by Mary L. Gibbins (62C 134(3)) for refund of the above amount for 1956.
No assessment was made by the District Director of Internal Revenue on the plaintiff's tax return for the fiscal year December 31, 1955, to November 30, 1956, until August 21, 1963, at which time the Internal Revenue Service made a deficiency assessment against the plaintiff of $13,365.92, based upon the disallowance of the $25,000.00 payment to Mary L. Gibbins as a business expense. The plaintiff paid this amount, plus an interest charge of $5,384.77, and thereafter, after seeking a refund which was disallowed, commenced this action.
The plaintiff was not assessed for additional taxes for the fiscal year 1956 for the disallowance of the $25,000.00 payment to Mrs. Gibbins until after the final disposition was made of Mary L. Gibbins' suit against the United States in the District Court (62C 134(3)). Mrs. Gibbins was represented by the same law firm that represents the plaintiff, and she contended in her suit for refund that the payment was a gift from the corporation and, therefore, non-taxable to her. On July 23, 1963, after depositions, hereinafter referred to, had been taken, the suit was settled before going to trial by payment of $13,674.33 to Mrs. Gibbins.
With respect to the preliminary evidentiary issue in this case, in the suit by Mrs. Gibbins against the United States (supra), three depositions were taken of Fouke Fur directors before the case was settled. This Court conditionally admitted parts of the three depositions (Pingree, Moll and McDonald) at the trial of this case, subject to the defendant's demonstrating their admissibility. The defendant has not demonstrated their admissibility. Messrs. McDonald and Pingree were directors at the time the depositions were taken and have continued to be directors until the present time. Mr. Moll was not a director at the time the depositions were taken nor has he served in that capacity since that time. He was a director at the time the above quoted resolution was passed. Mr. McDonald, in addition, was counsel for plaintiff and a member of the law firm that brought this suit and the Gibbins suit.
The plaintiff contends that the depositions taken in the Mary L. Gibbins case should be excluded from the present action because they are hearsay evidence and do not fall within the admissions or reported testimony exceptions to the hearsay rule.
The defendant, on the other hand, contends that with the inception of the Federal Rules of Civil Procedure, in particular Rules 26(d) and 43(b), there is a modern approach which would allow the introduction of the depositions in the present case. The defendant also cites the cases of Rivera v. American Export Lines, Inc., 13 F.R.D. 27 (S.D.N.Y.), and Hertz v. Graham, 23 F.R.D. 17 *370 (S.D.N.Y.) in support of its contention that the depositions which were taken at a prior action are admissible if it is merely shown that the issues were substantially the same and that the cross-examiner in the previous action had the same interest and motive in cross-examining as the presently objecting party would have. The defendant also cites Pursche v. Atlas Scraper & Engr. Co., 300 F.2d 467 (C.A.9) in support of its contention that the deposition of an adverse party may be used for any purpose even if the party is present.
Each of the cases cited by the defendant were decided in connection with Rule 26(d) of the Federal Rules of Civil Procedure and consequently have no value to the defendant if the defendant cannot show that it has complied with the provisions of Rule 26. (See Rivera v. American Export Lines, Inc., supra, 13 F.R.D. l. c. 29) The first paragraph of Rule 26(d) provides in part:
"USE OF DEPOSITIONS. At the trial * * * any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, * * *."
A simple reading of Rule 26, therefore, unequivocally rules out the possibility of its application to the present case. Here the plaintiff was not a party to the suit brought by Mary L. Gibbins, received no notice of the taking of the depositions, and was not present or represented at the taking of the depositions. (See Copeland v. Petroleum Transit Co., 32 F.R.D. 445, 447 (D.C.S.C.), where the court noted that the attorneys did not even attempt to have the depositions admitted against a defendant who was not a party to the action when the depositions were taken.)
The defendant also contended that Rule 43(b) states that the officers and directors of a corporation are to be treated as parties along with the corporation. Even though this may be true, the defendant still must show that the depositions can be admitted under Rule 26 (d), which it has failed to do.
For the foregoing reasons the depositions of Messrs. Pingree, Moll and McDonald taken in the Mary L. Gibbins case are not admissible in the present case under the Federal Rules of Civil Procedure.
Without the benefit of the depositions of Messrs. Pingree, Moll and McDonald from the Mary L. Gibbins case, the Court now turns to the merits of the plaintiff's action. Was the $25,000.00 payment to Mary L. Gibbins a deductible business expense for the plaintiff? The Commissioner of Internal Revenue was of the opinion that it was not. His ruling has the support of a presumption of correctness, and the plaintiff has the burden of proving to this Court that he was wrong. Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 78 L.Ed. 212.
Whether or not the payment under consideration is deductible by the plaintiff depends upon whether the payment satisfies the conditions of Section 162 of the Internal Revenue Code of 1954, as required by Section 404(a). Interstate Drop Forge Co. v. C.I.R., 326 F.2d 743, 747. Section 162 provides in part:
"§ 162. Trade or Business expenses
"(a) In general.There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including
"(1) a reasonable allowance for salaries or other compensation for personal services actually rendered;
"(2) traveling expenses * *
"(3) rentals * * *."
Section 404(a) provides, in part:
"§ 404. Deduction for contributions of an employer to an employees' trust or annuity plan and compensation under a deferred-payment plan.
"(a) General Rule.If contributions are paid by an employer to or *371 under a stock bonus, pension, profit-sharing, or annuity plan, or if compensation is paid or accrued on account of any employee under a plan deferring the receipt of such compensation, such contributions or compensation shall not be deductible under section 162 (relating to trade or business expenses) or section 212 (relating to the expenses for the production of income) but if they satisfy the conditions of either of such sections, they shall be deductible under this section, subject, however, to the following limitations as to the amounts deductible in any one year:
"(1) Pension Trusts* * *
"(2) Employees' annuities* * *
"(3) Stock bonus or profit-sharing trusts* * *
"(4) * * *
"(5) Other plansIn the taxable year when paid if the plan is not one included in paragraph (1), (2), or (3), if the employees' rights to or derived from such employer's contribution or such compensation are nonforfeitable at the time the contribution or compensation is paid."
Even though the payment under consideration was not made pursuant to any stock bonus, pension, profit-sharing or annuity plan, it is still deductible under section 404(a) (5) if it is reasonable in amount and it meets the requirements of section 162 (See section 1.404(a)-12 of the 1958 regulations.)
The payment under consideration was obviously reasonable in amount and ordinary in character. Therefore, the sole question is whether the payment was a necessary expense under section 162. The plaintiff must prove that the payment was necessary without the benefit of any interpretative regulations such as that under the 1939 code permitting deduction for a payment to a widow. Interstate Drop Forge Co. v. C.I.R., supra. What does "necessary" mean and how does the plaintiff prove that the payment was necessary? Vesuvius Crucible Co., 65, 144 P-H Memo TC, l. c. 65-821, contains helpful language:
"With a simplicity that is sometimes deceptive, the term necessary, has been defined merely as appropriate and helpful, Welch v. Helvering, supra. Beyond this, we have said that while necessary does not mean indispensible, taxpayers seeking the benefit of a deduction under section 162 must show affirmatively not only that there are business ends to be served, but also that there is an intention to serve those business ends, by means of the questioned expenditure. This the taxpayer may do by demonstrating clearly that the payment was intended to result in the inurement of a business benefit." (Citing Interstate Drop Forge Co. v. C.I.R., supra.)
The plaintiff contends that the evidence indicates that the payment was made in recognition of Gibbons' past services to the company and was intended as additional compensation for such services.
Despite the wording of the resolution, the payment was not made to compensate G. Donald Gibbins for past services to the company.
The payment was not treated on the company books as officers' salaries, nor was it treated in the company's tax return for the fiscal year 1955-1956 as compensation to officers (Defendant's Exhibits A and B). In both cases the payment was simply treated as a "payment to widow of deceased officer."
The plaintiff has attempted to draw an analogy between this payment and the one of $27,863.99 made to the widow of P. B. Fouke, president, following his death. There is absolutely no similarity between the two payments. In the case of P. B. Fouke, the widow was paid the remainder of Fouke's salary for the year in which he died. Here the payment was not a continuation of Gibbins' salary. The amount paid to Mrs. Gibbins bore no relationship to the amount Gibbins would have received for the remainder of the year in which he died.
*372 Plaintiff also states that the discussion at the meeting when the payment was voted indicates that the payment was made to compensate G. Donald Gibbins for his past services in view of the fact that he died before becoming entitled to an annuity.
This Court cannot agree with the plaintiff's interpretation of that discussion. The directors obviously did consider the past services of Gibbins to the company and also the fact that he died before reaching sixty-five, thereby not becoming entitled to an annuity. However, because of these factors the company did not decide to further compensate G. Donald Gibbins for his services; because of these factors they decided to make a gift to his widow. It is perfectly clear that the directors did not consider that G. Donald Gibbins had been inadequately compensated and that, therefore, they should pay his wife $25,000.00.
In the final analysis, the evidence shows that the payment was not a continuation of Gibbins' salary nor was it made to further compensate him for his services to the company, nor was the payment designed to reap an economic benefit to the company. Gibbins received full and adequate salary payments until his death. The payment was not measured by the amount of salary Gibbins would have received if he had lived. Furthermore, the payment bore no relationship to any previous widow payment made by the plaintiff.
There was no moral or legal obligation of any kind to make the payment; that is, there was no contract or understanding between G. Donald Gibbins and the plaintiff, and Gibbins never expected his beneficiaries to receive such a payment. There is also no showing that such a payment will ever again be made.
Even though the payment was certainly not made to further compensate Gibbins for past services to the company it may still be deductible if another business purpose motivated the company. Loewy Drug Company of Baltimore City v. United States, 232 F.Supp. 143, 148. (Aff'd 356 F.2d 928). There is no evidence that the payment was made for any other business purpose and the true character of the payment can best be shown from Charles Moll's deposition taken on January 7, 1966, in part, to-wit:
"Q It was not salary?
"A Not salary.
"Q Is it an accurate description that this payment of $25,000.00 was just a gift you decided you would give Mrs. Gibbins, you and the board of directors?
"A Wait a minute."
* * * * * *
"A Well, it was a payment; that is what it was.
"Q I am asking yes or no on this particular question, Mr. Moll. Is it correct that this payment was just a gift that you decided you would give Mrs. Gibbins?
"A Yes."
Further, the testimony of Thomas F. McDonald, who testified as a rebuttal witness, was to the effect that he had characterized it as a gift in his deposition in the Gibbins case (supra), but in this trial sought to explain his previous answer away.
The payment to Mrs. Gibbins was simply a gift. The company neither expected nor received any economic benefit therefrom. The plaintiff has failed to prove that the $25,000.00 payment to Mary L. Gibbins was a necessary expense entitling the plaintiff to a deduction under section 162.
This memorandum opinion and the stipulation of facts filed with the Court are adopted as the Findings of Facts, the memorandum opinion is adopted as the Conclusions of Law, and the clerk is directed to enter judgment in favor of the defendant.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0813n.06
Nos. 12-1368, 12-1380
FILED
UNITED STATES COURT OF APPEALS Sep 06, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. )
) ON APPEAL FROM THE
MARCUS MILLER (12-1368) ) UNITED STATES DISTRICT
MARLON OLIVER (12-1380), ) COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
Defendants-Appellants. )
)
BEFORE: SILER, MOORE, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. Marlon Oliver was convicted by a jury of being part of a large
cocaine-distributing conspiracy in Lansing, Michigan, and Marcus Miller pled guilty to the same
crime. Oliver challenges his conviction, arguing that he was a small-time dealer who worked on his
own and was not involved in the conspiracy. He also argues that his sentence, at the bottom of the
guidelines range for a career offender, is substantively unreasonable. Miller challenges only his
sentence, arguing that the court improperly applied an enhancement for possession of a weapon.
Miller claims that although his co-conspirators were found with a weapon at the drug-packaging site,
he knew nothing about it. None of their challenges has merit.
Marlon Oliver and Marcus Miller were charged with conspiring to distribute, and to possess
with the intent to distribute, at least five hundred grams of a cocaine mixture and at least twenty-
Nos. 12-1368, 12-1380
United States v. Miller & Oliver
eight grams of a cocaine base mixture. Oliver went to trial, claiming that, although he frequently
bought and sold cocaine, he was not part of the conspiracy. Miller pled guilty.
During Oliver’s trial, the government introduced testimony from law enforcement officers,
informants, and alleged co-conspirators. A law enforcement witness testified that Oliver admitted
in an interview that he purchased cocaine from Otis Morris three to five times. Oliver also admitted
purchasing cocaine from Tyree Miller. Oliver admitted that Morris and Tyree Miller were part of
a cocaine-trafficking conspiracy. Tyree Miller testified that Ramiro Palacio was also part of the
conspiracy and helped arrange Oliver’s purchase.
Oliver also worked with several people who were not charged as part of the large conspiracy.
He had an agreement with Robbin Johnson, who sold some of Oliver’s cocaine for him and allowed
Oliver to sell drugs out of his house. Johnson also assisted Oliver in confronting Palacio when
Oliver accused Palacio of stealing. According to the government’s account, Palacio had stolen drugs
from Oliver. In response to the theft, Oliver threatened Palacio with a gun while Johnson assaulted
him. The government also put on witnesses, including informants who conducted controlled buys,
who testified that Oliver was involved in hundreds of cocaine transactions.
The jury determined that Oliver was part of a conspiracy and found him guilty. His
presentence report included a long list of previous arrests and convictions, including two previous
convictions for delivering controlled substances. Based on his criminal history points, he would
have been in criminal history category IV. However, because he had two prior controlled-substance-
-2-
Nos. 12-1368, 12-1380
United States v. Miller & Oliver
offense convictions, he was classified as a career offender under U.S. Sentencing Guidelines Manual
§ 4B1.1. That classification increased his criminal history category to VI.
Oliver did not argue that the career-offender rule did not apply to him. Instead, he argued
that if the rule was applied, his sentence recommendation would not accurately reflect his minor role
in the conspiracy. Accordingly, he asked the district court for a downward variance from the
sentence suggested by the guidelines. The court did not grant the variance, noting Oliver’s extensive
criminal record, his use of a firearm in connection with the offense, and his use of his drug proceeds
to buy luxury items instead of paying child support. The court noted that previous prison sentences
failed to send Oliver the proper message and that he needed to be specifically deterred from
committing future offenses. The court sentenced Oliver to 360 months’ imprisonment, at the bottom
of the guideline-recommended range. Oliver appeals, arguing that there was insufficient evidence
that he was part of the conspiracy. He also challenges his sentence, claiming that it is substantively
unreasonable.
Unlike Oliver, Miller pled guilty. At his sentencing, he challenged an enhancement for
possession of a firearm in furtherance of the conspiracy pursuant to U.S. Sentencing Guidelines
Manual § 2D1.1(b)(1). He argued that he did not possess or use a firearm at any point and that he
was not aware that any of his co-conspirators possessed a firearm. After hearing from a witness, the
court rejected this argument, finding that the weapon was present in a house that was used by the
conspiracy to package drugs and that, therefore, Miller should have reasonably foreseen that his co-
-3-
Nos. 12-1368, 12-1380
United States v. Miller & Oliver
conspirators possessed the firearm. Miller appeals, challenging the application of the firearms
enhancement.
Oliver did not make a Rule 29 motion for acquittal at trial. His sufficiency-of-the-evidence
challenge is therefore reviewed only for a manifest miscarriage of justice and can be reversed “only
if the record is devoid of evidence pointing to guilt.” United States v. Price, 134 F.3d 340, 350 (6th
Cir. 1998) (internal quotation marks omitted). Oliver cannot meet this high standard because there
is evidence that he was part of the cocaine-trafficking conspiracy.
Oliver admits having been a cocaine dealer. The only question is whether he was part of the
conspiracy, as the jury found, or whether he was a “lone wolf” as he claims. There is evidence of
the former. Oliver purchased cocaine for resale from conspiracy members Otis Morris and Tyree
Miller. He used other conspiracy members to facilitate purchases. There was also evidence that
Oliver was involved in hundreds of drug sales. Since he did not manufacture his own cocaine, he
must have made large and frequent purchases from distributors such as Morris and Tyree Miller.
This is further evidence that Oliver was part of the conspiracy. “Since the jury was presented with
significant evidence that defendant was heavily involved in drug trafficking, it could infer that the
source of his drugs remained fairly constant.” United States v. Anderson, 89 F.3d 1306, 1311-12
(6th Cir. 1996).
Oliver argues that evidence that he sold drugs is not enough to prove that he was part of a
conspiracy. However, such evidence may be enough to demonstrate that there was not a manifest
miscarriage of justice in this case. Furthermore, while one-off purchases do not demonstrate the
-4-
Nos. 12-1368, 12-1380
United States v. Miller & Oliver
existence of a conspiracy, repeated purchases do. Id. Oliver purchased drugs from several members
of the conspiracy on multiple occasions, and used other members to set up his purchases. This
evidence supports a conclusion that he knew that the conspiracy existed and that he was distributing
drugs in furtherance of the conspiracy.
Oliver’s sentence is reasonable considering the large amount of cocaine the conspiracy
distributed and his lengthy criminal history. Because his sentence is within the properly calculated
sentencing guideline range, it is presumed reasonable. See United States v. Rosenbaum, 585 F.3d
259, 267 (6th Cir. 2009). This reasonableness is confirmed by the factors the district court properly
used to decide on the sentence.
Oliver’s adult criminal history began at age seventeen with a breaking-and-entering
conviction. His history also includes trespassing, multiple instances of cocaine possession, and
fleeing and eluding police. More recently, Oliver began a career in cocaine distribution. This is
demonstrated by his two previous convictions for delivery of cocaine and his involvement in the
charged conspiracy. Oliver would sell an ounce or two of cocaine per month, making $600 to $2,000
per ounce. Oliver’s return to cocaine dealing after completing two prison sentences makes
reasonable the minimum recommended sentence under the career-offender status.
Oliver argues that his sentence is substantively unreasonable because it is significantly longer
than his previous sentences for cocaine-dealing crimes. The career offender guidelines exist
precisely for people like Oliver, who leave prison after short sentences and, rather than being
deterred from further criminal activity, return immediately to the drug trade. Having determined that
-5-
Nos. 12-1368, 12-1380
United States v. Miller & Oliver
shorter sentences failed to deter Oliver, it was reasonable, and in line with the career offender
guidelines, for the district court to determine that a longer term was appropriate.
Furthermore, the particular offense in this case is more egregious than his previous offenses.
The conspiracy Oliver was a part of, if only as a street-level dealer, planned to distribute at least 500
grams of cocaine and at least twenty-eight grams of cocaine base. Oliver personally participated in
hundreds of cocaine transactions. This conduct also supports the reasonableness of the 360-month
sentence.
Additionally, we deny Oliver’s motion to submit a pro se supplemental brief. This court
“generally will not consider a defendant’s pro se claims when he is represented by counsel.” United
States v. Modena, 430 F. App’x 444, 448 (6th Cir. 2011).
Miller challenges only the firearm enhancement to his sentence. The district court used the
fortress theory to determine that Miller possessed a firearm during the offense, but we do not rely
on that theory in affirming. “Appellate courts may affirm on alternative grounds supported by the
record.” Murphy v. National City Bank, 560 F.3d 530, 535 (6th Cir. 2009). Because Miller was
involved in a large-scale drug-trafficking conspiracy, he could have reasonably foreseen that his co-
conspirators possessed the weapon in connection with that conspiracy. This is an alternative ground
that supports application of the enhancement. See United States v. Woods, 604 F.3d 286, 290 (6th
Cir. 2010).
In determining whether a defendant convicted of taking part in a drug-related conspiracy
could have reasonably foreseen that his co-conspirators were armed, this court has generally looked
-6-
Nos. 12-1368, 12-1380
United States v. Miller & Oliver
at the quantity of drugs involved in the conspiracy as a whole. In the cases where this court found
that the possession was not reasonably foreseeable, the quantity of drugs possessed or distributed was
small and there was no other evidence of possession. For example, in United States v. Woods, the
firearm enhancement did not apply because the conspiracy involved only approximately fifty-four
grams of methamphetamine. Id. at 291. Similarly, in United States v. Cochran, 14 F.3d 1128, 1133
(6th Cir. 1994), this court held that firearm possession was not reasonably foreseeable where the
defendant believed that his cousin, who actually possessed the gun, was “small time” and there were
only twenty-six grams of methamphetamine involved. On the other hand, this court has affirmed
the application of the enhancement in cases involving major drug trafficking. For example, in
United States v. Benson, 591 F.3d 491, 505 (6th Cir. 2010), the co-conspirator was a “major drug
trafficker” and it was thus foreseeable that he would keep a weapon in the place where he “kept a
significant drug supply and thousands of dollars in currency.” Likewise, in United States v. Odom,
13 F.3d 949, 959 (6th Cir. 1994), this court noted that “[t]he nexus between drugs and firearms has
been acknowledged when large quantities of cocaine are involved in a conspiracy.”
Miller was held responsible for 271.98 grams of cocaine base. All told, the remaining
conspiracy members were cumulatively held responsible for over 2.69 kilograms of cocaine base and
-7-
Nos. 12-1368, 12-1380
United States v. Miller & Oliver
2.26 kilograms of marijuana.1 This was a major drug operation, and it was reasonably foreseeable
that there would be guns present to protect the operation.
Because there is evidence in the record indicating that Oliver was part of the major drug
conspiracy and because his sentence is substantively reasonable, his conviction and sentence are
affirmed. Because the firearm enhancement applies to Miller, his sentence is affirmed.
1
Oliver was held responsible for 1.13 kilograms of cocaine base, Tyree Miller for 878.85
grams of cocaine base, Ricardo Mathews for 45.2 grams of cocaine base, Ramiro Palacio for
56.76 grams of cocaine base, Darryle Burton for 485.02 grams of cocaine base, and Chris
Johnson for 101.25 grams of cocaine base and 2.268 kilograms of marijuana. Although some of
the cocaine is likely double-counted, the number of conspirators and quantities of drugs indicate
that this was a massive drug-trafficking scheme.
-8-
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12-1890
Wu v. Holder
BIA
Morace, IJ
A097 384 721
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 24th day of July, two thousand thirteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 ______________________________________
12
13 JIN RONG WU, AKA JING WONG WU,
14 Petitioner,
15
16 v. 12-1890
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Jin Rong Wu, pro se, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Leslie McKay,
27 Assistant Director; Kelly J. Walls,
28 Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Jin Rong Wu, a native and citizen of the
6 People’s Republic of China, seeks review of an April 12,
7 2012, order of the BIA affirming the October 26, 2009,
8 decision an Immigration Judge (“IJ”), which denied Wu’s
9 application for withholding of removal and relief under the
10 Convention Against Torture (“CAT”). In re Jin Rong Wu, No.
11 A097 384 721 (B.I.A. Apr. 12, 2012), aff’g No. A097 384 721
12 (Immig. Ct. New York City Oct. 26, 2009). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 We have reviewed the IJ’s decision as supplemented by
16 the BIA. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
17 2005). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
19 Holder, 562 F.3d 510, 513-14 (2d Cir. 2009).
20 Wu challenges the agency’s denial of asylum and
21 withholding of removal, arguing his eligibility for that
22 relief based on his wife’s involuntary sterilization, his
23 “other resistance” to China’s family planning policies, and
2
1 his fear of sterilization as punishment for his political
2 dissidence. Initially, because we previously concluded that
3 substantial evidence supported the IJ’s and the BIA’s
4 determinations that Wu’s testimony about his wife’s
5 sterilization and his personal resistance to China’s family
6 planning policies was not credible, Jin Rong Wu v. U.S.
7 Dep’t of Justice, 203 F. App’x 354, 354-55 (2d Cir. 2006)
8 (summary order), we decline to revisit those issues here.
9 Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008).
10 Moreover, the agency reasonably concluded that Wu’s
11 fear of sterilization as punishment for political dissidence
12 was not objectively reasonable because he pointed to no
13 record evidence demonstrating persecution of similarly
14 situated individuals, and his evidence – consisting of his
15 hearsay testimony and letters from interested witnesses –
16 was reasonably afforded limited evidentiary weight. See
17 Jian Hui Shao v. Mukasey, 546 F.3d 138, 160-61 (2d Cir.
18 2008); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
19 342 (2d Cir. 2006); Jian Xing Huang v. INS, 421 F.3d 125,
20 128-29 (2d Cir. 2005).
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
3
1 removal that the Court previously granted in this petition
2 is VACATED, and any pending motion for a stay of removal in
3 this petition is DISMISSED as moot. Any pending request for
4 oral argument in this petition is DENIED in accordance with
5 Federal Rule of Appellate Procedure 34(a)(2), and Second
6 Circuit Local Rule 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
4
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513 So.2d 1036 (1987)
Glenndy Belle SMITH, alias
v.
STATE.
5 Div. 219.
Court of Criminal Appeals of Alabama.
August 18, 1987.
*1037 Robert S. Thompson, Tuskegee, for appellant.
Don Siegelman, Atty. Gen., and Dorothy F. Norwood, Asst. Atty. Gen., for appellee.
TYSON, Judge.
Glenndy Belle Smith was indicted for murder in violation of § 13A-6-2, Code of Alabama 1975 (C.R. 5). The jury found the appellant "guilty of murder". (R. 288, C.R. 3). She was sentenced to serve a term of 50 years' imprisonment in the state penitentiary. (R. 301, C.R. 3).
Because the appellant does not raise the sufficiency of the evidence as an issue on appeal, the facts of the case will be only briefly stated.
The evidence presented by the State showed that on July 24, 1985 at approximately 1:00 a.m., the appellant stabbed the victim, Billy Earl Knight, in the chest with a large, survival-type knife. Knight was pronounced dead at a local hospital shortly after the incident. The stabbing took place inside of a bar known as "The Elk's Club" located in Macon County, Alabama.
The stabbing occurred during an altercation involving the victim, the appellant and the victim's girlfriend, Joann Cannon. Ms. Cannon, who was also injured during the incident, testified that on the night in question she was walking to the dance floor of the bar with the victim and, when she passed the appellant, the appellant called her a "bitch". Ms. Cannon testified that she continued walking toward the dance floor. She then heard the appellant call out to the victim who was walking behind her.
The statement made to the victim concerned accusations Ms. Cannon had made approximately two months earlier that the appellant's mother had stolen her [Ms. Cannon's] purse.
After the appellant had called out to the victim twice, he turned toward her and "told her [the appellant] that he didn't know nothing about her and he didn't care nothing about her." (R. 29). The appellant *1038 then removed the knife from her purse and stabbed the victim.
Randolph Crawford testified that he was a friend of the appellant and had seen the appellant and Ms. Cannon arguing at the club on the night in question. (R. 168, 169). Prior to the stabbing, on the night in question, he heard the appellant say "she was going to kill her a m_____ f_____." (R. 173, 174).
The chest wound which caused the victim's death was an extremely large puncture wound (over four centimeters in length) to the heart and left lung. (C.R. 50). The knife used by the appellant had a six-inch blade which had a bottle opener and a jagged, sawtooth edge on one side. The handle of the knife was colored in a camouflage pattern and had a compass in the top. (R. 78, 79, 137-139).
The appellant claimed that she acted in self defense. She testified that Ms. Cannon initiated the name calling and then the victim grabbed her by the wrist. (R. 183). The appellant claimed that the victim slapped her while he was holding her wrist (R 184), and then said that he was going to hold her down while Ms. Cannon beat her up. The appellant testified that Ms. Cannon had a broken bottle in her hand and was about to hit her with it just before she took the knife out of her purse and stabbed the victim in the chest. (R. 184).
The appellant testified that the victim did not have anything in his hand when she stabbed him, (R. 202) and that Mrs. Cannon did not try to help the victim after he was stabbed. The appellant testified that, after she stabbed the victim, Ms. Cannon hit her with the bottle and the two started "tussling". (R. 209).
Pictures taken of the scene shortly after the incident revealed no evidence of broken glass or bottles in the area. (R. 36, 37).
The second defense witness, Derick Henderson, testified that the victim had grabbed the appellant and hit her just prior to the stabbing. (R. 216-217). He testified that Ms. Cannon did not have a bottle or a knife in her hand prior to the stabbing. (R. 225, 228). He stated that Ms. Cannon did go over and try to help the victim after he was stabbed and had fallen to the floor. (R. 226). The victim did not have a knife, a gun or any kind of weapon on the night of the murder. (R. 228, 229).
The third defense witness, Ossie Cardwell, testified that the victim hit the appellant and then "came at her with a knife". (R. 232).
I
The appellant contends that "the general attitude and conduct of the trial judge ... tended to show contempt of [her] counsel to such a ... degree ... that [she] was denied a fair and impartial trial." .... (Brief of appellant p. 5).
She cites two specific incidents from the record in support of her contentions. The first allegedly prejudicial incident occurred during the direct examination of the appellant. Toward the beginning of defense counsel's direct examination, the following occurred:
"Q. [Mr. Thompson]: Okay, Now, you've seen this knife that they have been parading around in front of the jury. What
"THE COURT: Hold up just a second.
"MR. CLARK: Object to that, Your Honor.
"THE COURT: Okay. Ladies and gentlemen, go out to the jury room for just a minute.
"(Jury not present.)
"THE COURT: Mr. Thompson, why did you do that?
"MR. THOMPSON: Why did I do what? I thought it was a proper question.
"THE COURT: That is no
"MR. THOMPSON: She was just getting ready to identify the knife, Your Honor.
"THE COURT: I tell you what, you sit down right there.
"MR. THOMPSON: You know, she was going to identify
"THE COURT: You sit down right there and hush until I get through talking. Don't you ever do anything like that in my courtroom again. Now, you know better than to do that. You commented. *1039 Now, you will have an opportunity to argue the case. But that was not a question at all. And you're not to do that anymore in my courtroom. Do you understand?
"MR. THOMPSON: Yes, sir, Your Honor.
"THE COURT: And do you understand that I will hold you in contempt of court if you pull a stunt like that again?
"MR. THOMPSON: I understand that also, Your Honor, yes, sir.
"THE COURT: Never. That's not zealousness, that is unprofessional conduct. And it's not to happen in my courtroom again.
"MR. THOMPSON: I understand, sir.
"THE COURT: Okay. Now, what I'm referring to specifically is your comment about the knife that they've been parading around in front of the jury all of this time. Now, to my knowledge, there's been no objection made about anything that has gone on in the
"MR. THOMPSON: I've been objecting in the whole trial about that knife.
"THE COURT: Not to the kind of thing that you're talking about, and I'm not going to put up with you doing that sort of thing. Now, the knife is admitted into evidence and has been admitted into evidence for some time in this trial. And it was properly admitted into evidence. And, for you to make a slurring remark about opposing counsel just is not a professional statement. Okay. Bring the jury out.
"(Jury present.)
"THE COURT: Ladies and gentlemen, in the course of his interrogation, defense counsel made a remark which is not appropriate, and I'm going to ask you to disregard it. The function of counsel is to ask questions, and I will ask you to completely disregard his comment concerning evidence. And I will ask you to remember all of the evidence as you heard it and as you see it and base your verdict solely on the evidence in this case." (R. 185-188) (emphasis added).
Defense counsel continued his direct examination of the appellant concerning the circumstances surrounding her possession of the knife. The following occurred:
"Q. [Mr. Thompson] Did you intend to kill Earl Knight?
"MR. HUNTLEY: Your Honor, I object.
"A. No.
"Q. Were you fearful that they were going to harm you?
"MR. HUNTLEY: I object.
"A. Yes.
"THE COURT: I sustain the objection.
"MR. HUNTLEY: Your Honor, would you ask the jury to disregard thenever mind.
"Q. What were you thinking when Joann Cannon and Earl Knight approached you?
"MR. HUNTLEY: I object, Your Honor.
"THE COURT: I sustain the objection.
"Q. What happened when they approached you? What were you thinking?
"MR. HUNTLEY: I object, Your Honor.
"MR. CLARK: Objection, Your Honor.
"THE COURT: Sustained.
"MR. CLARK: Objection, because it assumes a fact not in evidence as well asas to the
"Q. What were you thinking when she had the bottle in her hand?
"MR. HUNTLEY: I object.
"Q. What were you thinking when he hit you?
"MR. HUNTLEY: I object.
"THE COURT: Are you going to give your witness a chance to answer any of those questions that you're asking?
"MR. THOMPSON: If the State permits.
"THE COURT: Okay. I sustain the objection to each and every one of the questions. And let the Record show that the attorney rattled off those questions in such a fashion that he could not have been expecting an answer from the witness.
"A. I can't answer when they saying
"MR. THOMPSON: Hold on.
"(Bench conference held outside the hearing of the jury.)
*1040 "MR. THOMPSON: I would like to note on the Record that I object to the Court's last comment about question of counsel. It is for the State to object, what it did. And I did ask a question in hopes that my client would be able to answer the question. And I object, and I'll state that it prejudiced the jury. And I move for a mistrial.
"THE COURT: Okay. Take a seat back over there now.
"(Bench conference concluded; jury present.)
"THE COURT: Okay. Ladies and gentlemen, it was the Court's impression that counsel asked questions in such a manner as simply to impress you with the question and that he asked those questions in suchso rapidly that he could not have expected the client to answer those questions. If I am in error, you be guided by your judgment in that regard. But I will ask you to completely disregard questions that are assumed to beor that are stated in such a way as to try to present facts to you as opposed to eliciting testimony from the stand. If it is your impression that the attorney has done something in such a manner as to try to tell you something rather than have the witness tell you something, then you be guided simply by the testimony as it comes from the stand. You may proceed.
"...
"Q. What were you thinking when this happened?
"MR. HUNTLEY: I object.
"THE COURT: I sustaincome around.
"(Bench conference held outside the hearing of the jury.)
"...
"THE COURT: Okay. I'm going to overrule the objection.
"MR. HUNTLEY: It is not a subjective determination. It's an objective determination based on our (inaudible) for that situation.
"THE COURT: I think that you're probably right, but I do have some recollection that a person can testify as to their mental state under circumstances such as this. And I will admit that I'm going by the seat of the pants, but I'm going to give the defendant the doubt
"MR. HUNTLEY: Because it's difficult for us to cross examine her on what she thought.
"THE COURT: I understand. I'm not going to let you go very far.
"(Bench conference concluded; jury present.)
"Q. Okay. Refresh me as to where we were, Ms. Smith. You had indicated thatyour testimony was that Earl Knight had slapped you. And I asked you what did you think when this happened, and you may answer that question now.
"...
"A. He was holding my wrist when he slapped me. And, by him holding my wrist and telling her that he was going to hold me and let her beat me while he was holding me, I was scared.
"Q. And what were you afraid of.
"A. My life." (R. 190-197) (emphasis added).
The appellant further contends that "[t]he record in the instant case is replete with innuendo and insinuations by the trial judge impugning the ability and integrity of appellant's trial counsel." (Brief of appellant p. 6).
It is clear, as the appellant points out in brief, that "[a] trial judge who uses language which tends to bring an attorney into contempt before the jury, or makes any intimation which tends to prejudice the attorney, commits reversible error." Gwin v. State, 425 So.2d 500, 507 (Ala.Crim.App. 1982), cert. denied, 425 So.2d 510 (Ala. 1983).
"A trial judge has a duty to be thorough, courteous, patient, punctual, just and impartial. Yet he is not required to be a `Great Stone Face' which shows no reaction to anything that happens in his courtroom. Allen v. State, 290 Ala. 339, 276 So.2d 583 (1973)." Gwin, supra at 506-507.
In upholding the appellant's conviction in Gwin, we stated:
*1041 "The record of the defendant's trial, upon which our review must be based, is composed only of the words which were spoken by the participants in the proceedings. It does not contain a description of the manner or attitude in which those words were spoken and does not directly reflect the demeanor of the parties. The trial judge was in the best position to observe the conduct of the parties and we must indulge the presumed correctness of his judgments in this regard. Jolly v. State, 405 So.2d 76 (Ala.Cr.App.1981)."
Gwin, supra at 507.
We also recognized in Gwin.
"`The trial judge, as a natural consequence of his position and the many duties devolving upon him, is necessarily vested with much discretion in the conduct of the trial of causes, and, unless it clearly appears that there has been an abuse of this discretion, appellate courts will not interfere to control such discretion, but will presume that one occupying so important a position as that of circuit judge will accord to all litigants in his court the fair and impartial trial provided for in the Constitution of this state.'"
Gwin, supra at 507 (quoting Dennison v. State, 17 Ala.App. 674, 676, 88 So. 211 (1921)).
Faced with a similar contention in Cox v. State, 489 So.2d 612 (Ala.Crim.App.1985), we stated, "`[r]emarks by the trial judge may be open to criticism, but they are not error unless they have affected the result of the trial.'" Cox, supra at 623 (quoting McCovery v. State, 365 So.2d 358, 362 (Ala. Crim.App.1978)). See also Jones v. State, 398 So.2d 360, 367 (Ala.Crim.App.), cert. denied, 398 So.2d 369 (Ala.1981), wherein we stated:
"A judge is not to be severely criticized for his pointedly bringing the bad habit to the attention of an attorney." Sprinkle v. State, 368 So.2d 554 (Ala.Crim.App.1978), cert. quashed, 368 So.2d 565 (Ala.1979), and cases cited therein; Smith v. State, 447 So.2d 1327 (Ala.Crim.App.1983), aff'd, 447 So.2d 1334 (Ala.1984). Cf. Daniel v. State, 41 Ala.App. 405, 134 So.2d 752, cert. denied, 273 Ala. 706, 134 So.2d 757 (1961); Neal v. State, 36 Ala.App. 156, 54 So.2d 613, cert. denied, 256 Ala. 373, 54 So.2d 616 (1951); Williams v. State, 34 Ala.App. 253, 39 So.2d 29, rev'd on other grounds, 251 Ala. 397, 39 So.2d 37 (1948), cert. denied, 251 Ala. 696, 39 So.2d 39 (1949).
We have carefully examined the entire record as well as the specific incidents pointed out in brief with respect to the appellant's contentions. We conclude that, under the circumstances, the various comments made by the trial judge did not deny the appellant a fair and impartial trial.
A review of the record reveals that the emotional involvement of the witnesses and spectators during trial made an already difficult task for the trial judge even more so.
However, in light of the entire record of this case, we find that the substantial rights of this appellant have not been adversely affected. Lowe v. State, [1987], Alabama Supreme Court, 514 So.2d 1049.
II
The appellant contends that the trial judge erred in questioning State's witness Henry Peavy "after the conclusion of direct examination, but before cross examination." (Brief of appellant p. 7).
Mr. Peavy was a detective with the Tuskegee, Alabama Police Department on the night in question. He received the knife used in the stabbing from Sgt. Pollard shortly after the incident occurred.
Sgt. Pollard was one of the officers responsible for apprehending the appellant. Pollard had testified earlier that he took the knife from the appellant's hand after the stabbing and later gave it to Mr. Peavy.
During Mr. Peavy's testimony concerning the knife, the following occurred:
"Q. [Mr. Huntley] Detective Peavy, I'm going to hand you what's been marked as State's Exhibit Number 5 and ask you if you can identify that?
"A. Yes, I can.
"Q. What is that, sir?
*1042 "A. That is the knife that Sergeant Pollard turned over to me the night of the incident.
"Q. And how are you able to recognize that as the knife?
"A. Because of the blood stains that was on it at the time and the shape of the knife and the compass, the compass that's in the end of it.
"Q. What, if anything, did you do with that knife once it was turned over to you?
"A. I kept it in my possession until July 24th, 1985. Carl Murdock from the Department of Forensic Science came to pick up the body of Mr. Knight. At that time, I turned over to him the evidence given to me by Sergeant Pollard.
"Q. What evidence did that include?
"A. The body of Mr. Knight, the survivor knife, two tubes of blood and a sweatshirt.
"Q. Now. Detective Peavy, is that knife in substantially the same condition now as it was when you received it from Sergeant Pollard?
"A. Yes, sir, it is.
"Q. And where has that knife been since that occasion?
"A. I gave it to Mr. Murdock. And, approximately two months ago, I received it back from the Department of Forensic Science through the mail. It's been in my possession since that time.
"Q. And who is Carl Murdock?
"A. He works for the Department of Forensic Science.
"Q. Do you know what he does?
"A. He transports bodies.
"Q. And is that knife in substantially the same condition now as when you received it back
"A. Yes, sir, it is.
"Q. from the Department of Forensic Science?
"A. Yes, sir, it is.
"THE COURT: Can you recognize the knife as such, you know, as being the same knife that you saw that night?
"THE WITNESS: Yes, sir. When it came back to me, it was in the same package that I sent it to the lab in.
"THE COURT: Is the knifewould you describe it as being a common knife, or is it unusual?
"THE WITNESS: It's an unusual knife, Judge.
"THE COURT: Tell us how it is unusual.
"THE WITNESS: Because of the ridges on there and the circumference in the end. Most knives do not have thatplus it's camouflage. Most knives do not have that.
"THE COURT: You're referring to the handle. Would you describe it as a large green handle with black on it similar to what camouflage material looks like?
"THE WITNESS: Yes, sir, I would.
"THE COURT: Is there a bottle opener also in the blade of the knife?
"THE WITNESS: Is there a bottle opener in the blade of the knife? Yes, sir, there is.
"MR. HUNTLEY: May we approach the bench, Your Honor?
"(Bench conference held outside the hearing of the jury.)" (R. 136-139).
The knife was subsequently admitted into evidence over the appellant's objection based on the ground that the State had failed to establish the chain of custody. (R. 139-142).
The trial judge did not abuse his discretion in questioning this witness concerning the knife. Hinkle v. State, 50 Ala.App. 215, 278 So.2d 218 (1973); Brandes v. State, 17 Ala.App. 390, 85 So. 824 (1920); Sprinkle, supra. The following quote from Brandes, supra is applicable here:
"`... The unquestioned province of the courtin fact, the solemn and sacred duty of a trial judgeis the development and establishment of the truth, and in this connection it is always permissible for the court and if it appears necessary for him to do so it is his duty, to propound to witnesses such questions as it is deemed necessary to elicit any relevant and material evidence, without regard to its effect, whether beneficial to the one party or the other. Beal v. State, 138 Ala. 94, 35 So. 58. In fact, it *1043 is a sacred duty of a judge, both in civil and criminal cases, to give strict attention to the evidence, and to all facts and incidents attendant upon the trial, to propound questions to witnesses if in his judgment he deems it necessary, and to supervise and control the proceedings before him, with a view that justice may not miscarry.'" Hinkle, supra at 220, 278 So.2d 222. (emphasis added).
The information elicited by the trial judge was certainly relevant and material. The questions were asked for the purpose of establishing the unique characteristics of the murder weapon so that the chain of custody could be proved.
The appellant cites Richardson v. State, 403 So.2d 293 (Ala.Crim.App.), aff'd, 403 So.2d 297 (Ala.1981), in support of her contentions. There, however, the questions asked of the appellant by the trial judge prejudiced the appellant's claim of self-defense and were not of the same nature as those in the case at bar. The improper questioning which occurred in Richardson, supra and the other cases cited by the appellant, is not similar to the questions propounded by the trial judge in this case, which were asked, here, solely for the purpose of establishing the chain of custody of the murder weapon.
We note that in Cook v. State, 36 Ala. App. 449, 57 So.2d 832 (1952), cited by appellant, the court specifically states:
"In the case at bar we do not conclude that reversible error should be predicated on the sole fact that the judge did propound many questions to witnesses. Our view, however, forces the conclusion that this frequent practice magnified and enlarged the significance and possible injurious effect of the judge's statements to counsel. The statement was: `Mr. Selman, is it your contention that you don't want all the evidence brought out .'" Cook, supra at 451, 57 So.2d 832 (emphasis added).
We find no error here.
III
The appellant contends that the trial judge erred in "taking judicial notice that the alleged murder weapon was unique for purposes of establishing chain of custody." (Brief of appellant p. 8). She argues that there "was no evidence from the witness stand supporting the court's theory." We disagree.
We note at the outset that the appellant has offered no legal authority in support of this contention. We are not obligated to consider her argument on appeal. Vinzant v. State, 462 So.2d 1037 (Ala.Crim.App. 1984); Johnson v. State, 500 So.2d 494 (Ala.Crim.App.1986). Nevertheless, we have considered her contention and find it to be without merit.
It is well-settled that the chain of custody need not be proved to an absolute certainty; a reasonable probability is sufficient. Gwin, supra at 508. The purpose of establishing a chain of custody is to show that the evidence has not been tampered with. Gwin, supra.
We believe that sufficient evidence was presented through the testimony of Sgt. Pollard (R. 76-81) and Ms. Peavy (R. 136-139) to prove the chain of custody, especially in light of the evidence presented as to the unique characteristics of the weapon involved. (R. 78-79, 137-139). See Hoyett v. State, 441 So.2d 1063 (Ala.Crim. App.1983). We find no error here.
IV
The appellant contends that the trial court erred in admitting Randolph Crawford's testimony concerning the statement that she made on the night of the stabbing (i.e., that she was going to kill someone). (R. 173-174). She argues that the statement was inadmissible hearsay and does not fall within an exception to the hearsay rule.
The appellant has, once again, failed to provide this court with legal authority in support of her contentions. Vinzant, Johnson, supra. Once again, we have considered her contentions in spite of her omission, and find them to be without merit.
*1044 It is well-settled that: "[a] statement by the accused, before the time of the alleged criminal act, asserting a design or emotion in him which points to his guilt is admissible against him as an admission." C. Gamble, McElroy's Alabama Evidence § 264.01(1) (3rd ed. 1977) (emphasis added). See Smoot v. State, 381 So.2d 668 (Ala. Crim.App.1980) ("the acts, declarations and demeanor of an accused before or after the offense whether a part of the res gestae or not are admissible against him, but unless a part of the res gestae are not admissible for him").
Furthermore, this court has held that "[h]earsay does not include statements of witnesses in the present trial subject to cross-examination by the party against whom the statements are offered." Reeves v. State, 456 So.2d 1156 (Ala.Crim.App. 1984). We hold, therefore, that the trial judge committed no error in admitting Crawford's testimony concerning the appellant's statement.
V
The appellant contends that the trial court erred in allowing the State on cross-examination to require that defense witness Ossie Cardwell stand up and identify his sister as being seated next to the appellant's mother during the trial. (R. 236-239). She argues that the procedure was an improper method of showing the witness' bias and constituted prejudicial error. She also contends that "a proper predicate for introducing evidence of bias was not laid." (Brief of appellant p. 9).
The appellant's contentions are without merit. It is clear that a witness may be impeached on cross-examination by asking him about particular relationships that would reveal that he is biased. Gamble, supra § 149.01(5), and (9). It is also clear that "asking the witness about the state of his feelings is not a condition precedent to the right to ask him about any particular bias revealing circumstances." Gamble, supra § 149.01(5) (emphasis added).
Because this evidence had a tendency to show the amicable relationship between the witness' family and the appellant's family, we hold that it was properly admitted as showing the witness' bias against the State. See Nichols v. State, 276 Ala. 209, 160 So.2d 619 (1964). Although the manner by which the State chose to prove the witness' bias was somewhat unusual, we find no abuse of the court's discretion in permitting the use of this procedure. See Nichols, supra.
For the above-stated reasons this cause is due to be and is, hereby, affirmed.
AFFIRMED.
All the Judges concur.
| {
"pile_set_name": "FreeLaw"
} |
Filed 5/20/14 De v. Catholic Healthcare West CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
MONYA DE, B247458
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC476429)
v.
CATHOLIC HEALTHCARE WEST,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County, Ruth
Ann Kwan, Judge. Affirmed.
Lyon Law, Geoffrey C. Lyon and Tyler M. Press for Plaintiff and Appellant.
Ballard Rosenberg Golper & Savitt, Linda Miller Savitt, Eric C. Schwettmann and
Rami A. Yomtov for Defendant and Respondent.
____________________
INTRODUCTION
Plaintiff Dr. Monya De appeals from the judgment entered after the trial court
granted a motion for summary judgment filed by defendant Catholic Healthcare West,
now known as Dignity Health, doing business as St. Mary’s Medical Center. After Dr.
De’s one-year employment as a third-year internal medicine resident in the residency
training program at St. Mary’s ended without Dr. De receiving full credit, she filed this
action seeking damages for disability discrimination under the Fair Employment and
Housing Act (FEHA; Gov. Code,1 § 12940 et seq.), failure to engage in the interactive
process and to accommodate, retaliation, and wrongful termination in violation of public
policy. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Residency Training Program at St. Mary’s
St. Mary’s employed Dr. De in its residency training program as a third-year
resident seeking to fulfill the final year of her internal medicine residency. According to
the Resident Agreement executed by the parties, the term of Dr. De’s residency and
employment was from July 1, 2010 to June 30, 2011, unless terminated sooner in
accordance with other provisions of the agreement. Dr. De’s residency training and
employment in fact terminated on June 30, 2011, the end of the term of the employment
agreement.
The residency program was accredited by the Accreditation Council for Graduate
Medical Education (ACGME) and was affiliated with the David Geffen UCLA School of
Medicine. The goal of a resident in the program was to complete the residency
successfully in order to advance to the next level of training and to become eligible for
1 Statutory references are to the Government Code, unless otherwise identified.
2
the certifying examinations given by the American Board of Internal Medicine (ABIM).
The program evaluated residents based on six competencies identified by the ACGME
and ABIM: patient care, medical knowledge, professionalism, communication and
interpersonal skills, practice-based learning improvement, and systems-based practice.
Residents also had to comply with other requirements of the ACGME and ABIM, such as
attendance at a minimum number of classroom lectures given by faculty members on
topics related to internal medicine. The residency program included month-long rotations
through selected major subspecialties of internal medicine, including hematology,
nephrology, geriatrics, intensive care, and out-patient clinic service. Academic staff
physicians, referred to as faculty, and voluntary teaching physicians, referred to as
teaching attending physicians, taught and supervised the rotations.
In accordance with ACGME guidelines, the residency program at St. Mary’s had a
Clinical Competency Committee. The Clinical Competency Committee, which was
made up of faculty members and teaching attending physicians, evaluated and counseled
residents on their progress in the program, their prospects for advancement, and their
eligibility for the ABIM certifying examinations. The Clinical Competency Committee
also considered and imposed discipline such as probation, remediation and termination.
In addition, the faculty members met weekly and discussed each resident’s performance
and progress. During the 2010-2011 academic year, when Dr. De was a third-year
resident in the program, the faculty included the residency program director Dr. Chester
Choi, as well as Dr. Joyce Yeh, Dr. Neill Ramos, and Dr. Sarah Strube. Dr. Ramos was
Dr. De’s faculty advisor.
3
B. Dr. De’s Performance in the Residency Program Prior to Disclosing
Any Disability Based on ADHD2
In January 2011 Dr. Ramos met with Dr. De to discuss her performance in the
residency program. Dr. Ramos expressed his concerns about Dr. De’s performance in the
six core competencies, particularly in the areas of patient care and professionalism. He
told Dr. De that her patient notes did not conform to the standard SOAP format (an
acronym for a method of documentation that stands for “subjective, objective,
assessment, and plan”) and that she lacked professionalism because of timeliness and
attendance issues. Dr. Ramos believed that Dr. De’s performance continued to decline
after the January 2011 meeting and raised serious concerns about patient safety.
On February 2, 2011 Dr. Choi met with Dr. De to discuss the faculty’s concerns
about her performance. Dr. Choi advised Dr. De that faculty members had observed that
she had been late or absent when they were presenting and discussing her patients, that
she had lapses in knowledge regarding her patients’ status and data, and that her
performance continued to be unsatisfactory despite feedback and counseling from her
faculty advisor and her faculty clinic attending physician. Dr. Choi acknowledged that
Dr. De had experienced some health issues and that she had attempted to give notice of
her absences, but Dr. Choi stated that the absences, tardiness, and inadequate preparation
for attending rounds were continuing problems.
Dr. Choi and Dr. De signed a “Required Improvement” plan to address
deficiencies in her professionalism and patient care. The plan stated that the resident
program would tolerate “[n]o further tardiness or unexcused absences from required
conferences, clinics, or rounds.” The plan also called for “[s]ignificant improvement in
patient care to at least satisfactory level (as evaluated by teaching attendings) to include
comprehensive pre-rounding with interns and students, satisfactory knowledge of patient
care data and status, and formulation of patient management plan to meet or exceed
2 ADHD is “attention deficit hyperactivity disorder.” (People v. Pollock (2004) 32
Cal.4th 1153, 1167; In re Angela M. (2003) 111 Cal.App.4th 1392, 1395.)
4
ABIM and residency standards in patient care competency as evaluated by teaching
attendings.” The plan further stated that the faculty would monitor Dr. De for four weeks
and that if she did not show adequate improvement then the program would place her on
probation, subject to review and action by the Clinical Competency Committee. The plan
also gave Dr. De notice that residents could appeal any adverse action by following a
procedure that included a meeting with the Clinical Competency Committee and the
program director, where the resident could present his or her appeal with the assistance of
a teaching attending physician of the resident’s choosing.
Following his February 2, 2011 meeting with Dr. De, Dr. Choi observed that Dr.
De’s performance continued to falter and caused serious concerns among the faculty. On
February 4 or 5, 2011, Dr. Strube, who was supervising Dr. De on a medical ward
rotation, relieved Dr. De of her medical duties after Dr. Strube determined that Dr. De
had given a patient contraindicated medication that adversely affected the patient’s heart
rate and Dr. De could not explain why she had prescribed the medication. Dr. Strube had
also learned of an incident during the same week where Dr. De had ordered unnecessarily
strong medication for a dialysis patient, and Dr. Strube had to cancel the order before the
patient received the medication. Dr. Strube did not trust Dr. De’s ability and found that
her overall work performance was below the level of a third-year resident.
Dr. De had been scheduled to start her required rotation in the intensive care unit
(ICU) in February 2011. The faculty concluded, however, that her presence in the ICU
would pose a serious risk to patient safety. The ICU rotation was generally considered a
high-stress rotation due to high patient acuity and less opportunity and ability of the
faculty to supervise the residents.3
The residency program placed Dr. De on probation and assigned her to a special
medical ward rotation known as “Team E” in order to address her competency
3 Patient acuity in this context refers to “the severity of [the] patient’s condition.”
(Taylor v. Lone Star HMA, L.P. (N.D.Tex. Jan. 23, 2009, No. 3:07-CV-1931-M) 2009
WL 174133, p. 1.)
5
shortcomings. Dr. Choi, Dr. Ramos, and other faculty members decided assigning Dr.
De to Team E would allow her to continue her resident training and would permit the
faculty to monitor and supervise her closely in order to ensure patient safety. During this
assignment, St. Mary’s gave Dr. De a reduced patient load and assigned her to work one-
on-one with the attending physicians, as opposed to assigning her to a regular medical
ward rotation where the residents worked with a resident-intern as well as a supervising
attending physician. During this probationary period with Team E, however, Dr. De’s
lateness, professionalism, and patient care problems continued. Faculty members
observed that Dr. De was deficient in her medical knowledge and her communication and
interpersonal skills.
The next meeting was March 11, 2011. Dr. Choi and Dr. Ramos informed Dr. De
that she was suspended from the residency program, pending a meeting of the Clinical
Competency Committee. Dr. Choi, who was aware that Dr. De suffered from depression
but was unaware that Dr. De had ADHD, asked Dr. De if she had been experiencing any
symptoms of depression and suggested that she see her physician. When Dr. Choi asked
Dr. De if she had depression, Dr. De said, “No.”
On March 23, 2011 the Clinical Competency Committee met and discussed
Dr. De’s performance and whether she should be permitted to continue in the residency
program. Dr. De was present with Dr. Jerome Devente, a faculty member chosen by
Dr. De to advocate on her behalf. Dr. De and Dr. Devente were able to ask and answer
questions and to present documents in response to the complaints and allegations against
her.
The committee members who had served at various times as Dr. De’s attending
physician (including Dr. Choi, Dr. Ramos, Dr. Strube, and Dr. Yeh) spoke about her
problems in the areas of professionalism, patient care, medical knowledge,
communication, and interpersonal skills. The committee members “observed and
discussed” the “following deficiencies”: “Failure to attend or late arrival at required
events such as morning report and noon conference”; “Difficulty in arriving at proper
diagnoses for patients and identification of key clinical information”; “Incomplete and/or
6
inaccurate patient assessments”; “Incomplete or overly extensive patient care plans”;
“Failure to perform ‘pre-rounding’ on her assigned patients”; “Unsatisfactory knowledge
of patient care data”; “Lack of efficiency (i.e. in terms of timely completing patient notes
and medical records, length of sessions with patients and ability to handle multiple
patients simultaneously)”; “Poor communication/lack of follow through in that her
paperwork was not completed and critical patient data was not communicated to others
on her Medical Team or ‘relief’”; “Lack of ability to prioritize, including failure to
identify urgent medical issues and distinguish from other, less urgent issues”; “Lack of
insight into her patient care problems”; and “Lack of supervisory skills stemming from
her difficulty in supervising interns and medical students.” After considering these
issues, and the fact that there were only three-and-a-half months remaining in the
academic year for Dr. De to demonstrate improvement, the Clinical Competency
Committee recommended termination from the program.
On March 29, 2011 Dr. Choi informed Dr. De of the decision by the Clinical
Competency Committee to terminate her from the residency program. He also advised
her of her right to appeal the committee’s decision. Dr. De appealed.
Prior to or during the March 23, 2011 meeting, Dr. De never disclosed that she had
a disability that required accommodation and never mentioned that she had been
diagnosed with ADHD. The Clinical Competency Committee was not aware of any
ADHD diagnosis. Dr. De never disclosed to anyone in the residency program that she
had been diagnosed with ADHD or requested an accommodation for any disability prior
to the decision by St. Mary’s to terminate her from the residency program. Dr. De did
not discuss her ADHD diagnosis or condition with faculty or teaching attending
physicians in the residency program prior to March 31, 2011.
C. Dr. De’s Performance in the Residency Program After Disclosing
a Disability Based on ADHD
Dr. Choi learned for the first time that Dr. De had been diagnosed with ADHD
when he received a copy of a letter dated April 11, 2011 from Dr. De’s psychiatrist,
7
Joseph C. Lee, to Dr. De regarding how her ADHD could affect her performance in the
residency program. On April 19, 2011 the Clinical Competency Committee met to
discuss Dr. De’s appeal, at which time Dr. Choi read Dr. Lee’s letter to the committee.
The committee discussed how to provide Dr. De with the accommodations she requested
that would allow her to continue her residency training, while at the same time ensuring
patient safety.
The Clinical Competency Committee decided to allow Dr. De to return to work
under a restricted, highly supervised period of probation and to provide her with the
accommodations that she requested, which included returning to work in the clinic and
continued opportunity to receive direct feedback. Several considerations, discussed at
length at the meeting, guided the committee’s decision. These considerations included
(1) because Dr. De would not be on a medical team while she was in the clinic, faculty
members would be able to provide extensive monitoring, supervision, and feedback on
her progress; (2) because patient needs and acuities were generally lower in the clinic,
there would be reduced external stress on Dr. De; (3) because Dr. De would not have to
conduct any pre-rounding on patients, she could arrive at work later and would work a
reduced number of hours overall; and (4) Dr. De would have a reduced patient load in the
clinic.
On April 27, 2011 Dr. Ramos met with Dr. De to discuss her return to work and
the terms of her probation. Dr. Ramos explained that the Clinical Competency
Committee had developed the terms and conditions of her probation and had noted
competency issues relating to patient care, professionalism, medical knowledge,
communication, and interpersonal skills. Dr. De and Dr. Choi signed a written probation
agreement that summarized the evaluations and observations that led to Dr. De’s
probation, explained that, and how, Dr. De needed to improve, and outlined the possible
outcomes or consequences for her continued participation in the residency program
depending on her ability to make progress.
Dr. De returned to work. Dr. Ramos and Dr. Yeh had daily interaction with her.
A number of different faculty members and teaching attending physicians also supervised
8
her in order to ensure the program obtained a broad assessment of her progress. As they
had while Dr. De was on Team E, the faculty members and teaching attending physicians
continued to provide her with direct feedback regarding her progress and performance.
The faculty members also continued to discuss Dr. De’s performance and progress at
their weekly faculty meetings. They continued to observe that her performance was
below that expected of a third-year resident.
On June 6, 2011 the Clinical Competency Committee met to assess Dr. De’s status
and performance. The committee heard from the faculty members and teaching attending
physicians who had worked with Dr. De during her probationary period in the clinic. The
committee found that, despite the accommodations provided to Dr. De, she was not
performing at the level expected of a third-year resident and still had problems in the
areas of patient care and professionalism. The committee found that Dr. De was not
ready to work in the ICU,4 still required close monitoring and supervision, had problems
with her efficiency (in terms of assessing patients, handling multiple patients, and
completing patient notes and other medical documentation ), and wrote patient care plans
that were not at the level of a third-year resident. The Clinical Competency Committee
concluded that Dr. De was not capable of practicing internal medicine without
monitoring and supervision, a reduced patient load, and the other safeguards in her
probationary clinical rotation. The committee also noted that the workload reduction and
extra monitoring and supervision provided for Dr. De conflicted with the residency
program’s educational goals of developing the resident’s ability to manage multiple
patient care situations independently and simultaneously.5 The committee determined
4 Dr. Yeh testified in his deposition: “[Y]ou can’t place someone [in the ICU] who
is not safe to take care of patients. Our primary concern—our first priority is that
patient[s’] lives are not compromised. So the time frame is neither here nor there. First,
is patient safety. Second, is residents’ performance.”
5 Dr. Yeh testified: “By May of the academic year, they are basically two months
away from hanging their own shingle, and the other third-year residents needed very little
supervision with how they would take care of patients. They would come to me with a
9
that Dr. De’s performance and skill levels were unsatisfactory and that she had a
particular deficit in patient care. On June 9, 2011 Dr. Choi advised Dr. De of the
committee’s conclusions.
Dr. De’s Resident Agreement expired on June 30, 2011. Dr. De asked St. Mary’s
to give her credit for completion of specific rotations during her residency and to extend
her contract in order to allow her to complete her residency training. Dr. De also
appealed the June 6, 2011 conclusions of the Clinical Competency Committee, and she
presented a proposal for those rotations for which she believed she was entitled to credit
towards completion of the residency.
On July 25, 2011 the Clinical Competency Committee met to hear Dr. De’s
second appeal. Dr. De spoke and presented evidence regarding her performance and
accommodations. The committee considered Dr. De’s presentation and discussed
whether she was able to practice internal medicine without additional monitoring and
supervision and whether she was ready for a rotation in the ICU. The committee
members continued to express their concerns regarding Dr. De’s ability to provide good
patient care and concluded that they could not recommend her to the ABIM as able to
practice internal medicine. The committee then affirmed the conclusions reached at the
June 6, 2011 meeting.
On August 15, 2011 Dr. Choi sent a letter to Dr. De informing her that she would
receive credit for approximately six months of training. The residency program would
give Dr. De credit for seven rotations, including general medicine consultations,
geriatrics, ward medicine, gastroenterology, ambulatory medicine, hematology/oncology,
and nephrology. Dr. Choi advised Dr. De that the Clinical Competency Committee “was
not supportive of further training” and that it might require more than six additional
months for her to demonstrate the ability to function as an independent practitioner of
internal medicine.
plan. They already educated the patients of what needed to happen. And they could see
a full load of patients, as was expected of a third-year resident. [Dr. De] was not to that
point.”
10
D. The Lawsuit
Dr. De filed this action on January 9, 2012. She alleged seven causes of action:
(1) disability discrimination (§ 12940, subd. (a)), (2) failure to engage in the interactive
process (§ 12940, subd. (n)), (3) failure to make reasonable accommodations (§ 12940,
subd. (m)), (4) retaliation (§ 12940, subd. (h)), (5) medical leave retaliation and
discrimination (§ 12945.2), (6) failure to prevent discrimination (§ 12940, subds. (j), (k)),
and (7) wrongful termination in violation of public policy. Dr. De alleged that St. Mary’s
discriminated and retaliated against her by terminating her “on or about June 30, 2011”
and “thereafter refusing to reinstate” her through July 25, 2011.
St. Mary’s filed a motion for summary judgment or in the alternative for summary
adjudication. St. Mary’s argued that Dr. De’s first cause of action for disability
discrimination failed because (a) Dr. De could not establish a prima facie case of
disability discrimination, (b) St. Mary’s had legitimate, non-discriminatory reasons for its
actions with respect to Dr. De’s residency employment, and (c) Dr. De did not and could
not offer any substantial evidence that the reasons were pretextual. St. Mary’s argued
that Dr. De’s second and third causes of action failed because St. Mary’s in fact engaged
in a timely and good faith interactive process and gave Dr. De each accommodation she
requested. St. Mary’s argued that the fourth and fifth causes of action failed because St.
Mary’s had legitimate, non-discriminatory reasons for its action and Dr. De could not
establish any motive or intent to retaliate. St. Mary’s argued that Dr. De’s sixth cause of
action failed because Dr. De could not establish any FEHA violation and that her seventh
cause of action for wrongful termination failed because Dr. De’s one-year employment
contract expired and she was not terminated. St. Mary’s also argued that Dr. De was not
entitled to punitive damages. Dr. De filed opposition papers, including declarations by
Dr. De and excerpts of deposition testimony by the many percipient witnesses in the case.
11
The trial court ruled on the evidentiary objections filed by St. Mary’s and granted
the motion for summary judgment.6 The trial court entered judgment in favor of St.
Mary’s, and Dr. De appealed.
DISCUSSION
A. Standard of Review
We review a trial court’s order granting a motion for summary judgment “de novo,
liberally construing the evidence in support of the party opposing summary judgment and
resolving doubts concerning the evidence in favor of that party. [Citation.]” (State of
California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017-1018; Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c,
subdivision (c), provides that a “motion for summary judgment shall be granted if all the
papers submitted show that there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” (See Schachter v. Citigroup,
Inc. (2009) 47 Cal.4th 610, 618 [court may grant a summary judgment motion only “if no
triable issues of material fact appear”]; Aguilar, supra, at p. 843.) We consider “‘all the
evidence set forth in the moving and opposition papers except that to which objections
have been made and sustained’” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534),
viewing the evidence in the light most favorable to the plaintiff (Aguilar, supra, at p.
843).
A moving defendant “‘“‘bears the burden of showing the court that the plaintiff
“has not established, and cannot reasonably expect to establish,”’ the elements of his or
her cause of action. [Citation.]” [Citation.]’” (Ennabe v. Manosa (2014) 58 Cal.4th 697,
6 Comparing the declaration Dr. De submitted in opposition to the motion with the
evidentiary objections filed by St. Mary’s, it appears that the declaration in the record is
not the same as the declaration she filed in opposition to the summary judgment motion
and to which St. Mary’s made objections. In any event, Dr. De does not challenge any of
the trial court’s evidentiary rulings on appeal.
12
705; see Code Civ. Proc., § 437c, subds. (o) & (p)(1).) If the defendant meets this initial
burden, then the burden shifts to the plaintiff to show that a triable issue of material fact
exists. (See Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co.,
supra, 25 Cal.4th at p. 849.) “There is a triable issue of material fact if, and only if, the
evidence would allow a reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion in accordance with the applicable standard of proof.”
(Aguilar, supra, at p. 850, fn. omitted.)
B. FEHA Standards
FEHA prohibits discrimination in employment on the basis of specified criteria,
including mental disability. (§ 12940 et seq.) Section 12940, subdivision (a), provides:
“It is an unlawful employment practice, unless based upon a bona fide occupational
qualification, . . . [¶] (a) For an employer, because of . . . mental disability . . . of any
person, to refuse to hire or employ the person . . . , or to bar or to discharge the person
from employment . . . , or to discriminate against the person in compensation or in terms,
conditions, or privileges of employment.” FEHA, however, “does not prohibit an
employer from . . . discharging an employee with a . . . mental disability, . . . where the
employee, because of his or her . . . mental disability, is unable to perform his or her
essential duties even with reasonable accommodations, or cannot perform those duties in
a manner that would not endanger his or her health or safety or the health or safety of
others even with reasonable accommodations.” (§ 12940, subd. (a)(1); see § 12926,
subds. (f), (j); § 12926.1, subds. (b), (c); Raine v. City of Burbank (2006) 135
Cal.App.4th 1215, 1222.)
FEHA also requires an employer “to make reasonable accommodation for the
known . . . mental disability of an . . . employee,” except an accommodation “that is
demonstrated by the employer . . . to produce undue hardship . . . .” (§ 12940, subd. (m).)
In addition, if an employer receives “a request for reasonable accommodation by an
employee . . . with a known . . . mental disability . . . ,” the employer is required “to
engage in a timely, good faith, interactive process with the employee . . . to determine
13
effective reasonable accommodations, if any . . . .” (§ 12940, subd. (n).) In addition, an
employer may not retaliate “or otherwise discriminate against any person because the
person has opposed any practices forbidden under [FEHA] or because the person has
filed a complaint, testified, or assisted in any proceeding under [FEHA].” (§ 12940,
subd. (h).)
C. Dr. De Failed To Establish a Prima Facie Case of Disability
Discrimination or That St. Mary’s Reasons Were Pretextual
The elements of a cause of action for disability discrimination under FEHA
(§ 12940, subd. (a)) are incorporated in a “three-stage burden-shifting test established by
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [36 L. Ed. 2d 668, 93 S. Ct.
1817],” which the California Supreme Court has adopted. (Harris v. City of Santa
Monica (2013) 56 Cal.4th 203, 214.) “Litigation of disability discrimination in the
employment context proceeds in three stages. First, the plaintiff must establish a prima
facie case of discrimination. If the plaintiff meets this burden, the employer must offer a
legitimate, nondiscriminatory reason for the adverse employment decision. Third and
finally, the plaintiff bears the burden to prove the employer’s proffered reason is
pretextual. [Citation.]” (Rope v. Auto-Chlor System of Washington, Inc. (2013) 220
Cal.App.4th 635, 656; see Harris, supra, at pp. 214-215.)
“In the first stage, the plaintiff bears the burden to establish a prima facie case of
discrimination. [Citation.] The burden in this stage is ‘“not onerous”’ [citation], and the
evidence necessary to satisfy it is minimal [citation]. On a disability discrimination
claim, the prima facie case requires the plaintiff to show ‘he or she (1) suffered from a
disability, or was regarded as suffering from a disability; (2) could perform the essential
duties of the job with or without reasonable accommodations, and (3) was subjected to an
adverse employment action because of the disability or perceived disability.’ [Citation.]”
(Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159-160; see Sandell v. Taylor-
Listug, Inc. (2010) 188 Cal.App.4th 297, 310.)
14
“FEHA requires employees to prove that they are qualified individuals under the
statute . . . .” (Green v. State of California (2007) 42 Cal.4th 254, 258; see Furtado v.
State Personnel Bd. (2013) 212 Cal.App.4th 729, 744 [“employee must establish that he
or she is a ‘qualified individual,’ i.e., an employee who can perform the essential
functions of the job with or without reasonable accommodation”]; Lui v. City and County
of San Francisco (2012) 211 Cal.App.4th 962, 970-971 [“‘[i]n order to prevail on a
discriminatory discharge claim under section 12940[, subd. ](a), an employee bears the
burden of showing . . . that he or she could perform the essential functions of the job with
or without accommodation (in the parlance of the [ADA7], that he or she is a qualified
individual with a disability)’”].) “By its terms, section 12940 makes it clear that drawing
distinctions on the basis of physical or mental disability is not forbidden discrimination in
itself. Rather, drawing these distinctions is prohibited only if the adverse employment
action occurs because of a disability and the disability would not prevent the employee
from performing the essential duties of the job, at least not with reasonable
accommodation. Therefore, in order to establish that a defendant employer has
discriminated on the basis of disability in violation of the FEHA, the plaintiff employee
bears the burden of proving he or she was able to do the job, with or without reasonable
accommodation.” (Green, supra, at p. 262, italics omitted.)
St. Mary’s demonstrated that Dr. De could not perform the essential duties of a
third-year resident with or without reasonable accommodation and could not “perform
those duties in a manner that would not endanger . . . the health or safety of others even
with reasonable accommodations.” (§ 12940, subd. (a)(1).) St. Mary’s submitted
evidence that the medical faculty and attending physicians determined that Dr. De was
not qualified to perform the essential functions of a third-year internal medicine resident
and that patient safety was a constant concern during Dr. De’s residency. The Clinical
Competency Committee determined in June 2011 that, even after St. Mary’s had given
7 ADA stands for the Americans with Disabilities Act of 1990. (42 U.S.C. § 12101
et seq.)
15
Dr. De the accommodations she requested for her disability, her overall performance was
unsatisfactory and she was not capable of practicing internal medicine even with the
accommodations in the clinic rotation (e.g., close monitoring, constant supervision, and a
reduced patient load). Moreover, the accommodations she requested and received
conflicted with the educational goals of the residency program, which were to train the
residents to be doctors who were independent and did not require constant monitoring
and supervision. Allowing Dr. De to work in the ICU, a requirement to complete a third-
year internal medicine residency, created an unacceptable risk to patient safety. When
the Clinical Competency Committee considered Dr. De’s second appeal in July 2011, the
committee members remained concerned about her competency and the safety of
patients.
Dr. De did not offer sufficient evidence that she was able to perform the essential
duties of her job, with or without accommodation. She did not cite to any evidence in her
separate statement that she was able to perform the duties of a third-year resident. The
evidence she did cite to did not support her position. For example, Dr. De stated in her
separate statement that once she adjusted to her medication, there was a “drastic
reduction in purported errors” she made. In the deposition testimony she cited in support
of this statement, however, her attorney asked Dr. Yeh, “Would you say that from May
2011 to June 2011, [Dr.] De’s work performance was about the same, better, or worse
than other third-year students?” Dr. Yeh answered, “Worse.” Dr. De also cited to an
excerpt of her deposition testimony, but she did not submit that portion of her deposition
in opposition to the motion for summary judgment. Dr. De did state in her declaration in
opposition to the motion that “[u]pon my return to work, Employer failed to notice my
regular and consistent improvements,” and that “[o]ther residents have made significant
errors, but have not been as excessively or unfairly criticized, suspended, or terminated as
I was.” The trial court, however, sustained the evidentiary objections by St. Mary’s to
these statements, and Dr. De has not challenged those rulings on appeal. Dr. De asserts
in her brief on appeal that she “offered evidence, which was undisputed by [St. Mary’s],
that once Dr. De had been allowed time to adjust to her ADHD treatment and medication
16
she made no errors warranting termination. After Dr. De was treated her tardiness to
lectures stopped . . . and Dr. De received no complaints about her performance. Once
placed in the clinic rotation, Dr. De was able to meet the essential duties of the job.”
Dr. De, however, does not cite to any evidence in the record supporting these statements.
Dr. De also did not meet her burden of showing that St. Mary’s reasons for not
extending her employment were pretextual or that St. Mary’s acted with discriminatory
animus. “‘[T]o avoid summary judgment, an employee claiming discrimination must
offer substantial evidence that the employer’s stated nondiscriminatory reason for the
adverse action was untrue or pretextual, or evidence the employer acted with a
discriminatory animus, or a combination of the two, such that a reasonable trier of fact
could conclude the employer engaged in intentional discrimination.’ [Citation.]”
(Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009) 173
Cal.App.4th 740, 755.) “‘An employee in this situation can not “simply show the
employer’s decision was wrong, mistaken, or unwise. Rather, the employee ‘“must
demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them ‘unworthy of credence,’ [citation], and
hence infer ‘that the employer did not act for the [ . . . asserted] non-discriminatory
reasons.’ [Citations.]” [Citations.]’ [Citation.]”’ [Citation.]” (Batarse v. Service
Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 834; McRae v.
Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 389.) Dr. De
failed to make any such showing. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 361 [“an employer is entitled to summary judgment if, considering the employer’s
innocent explanation for its actions, the evidence as a whole is insufficient to permit a
rational inference that the employer’s actual motive was discriminatory”].) Dr. De argues
on appeal that she “offered evidence of pretext in four forms,” but she does not cite to
any evidence in the record in support of her argument.
17
D. Failure to Engage in the Interactive Process
“FEHA provides an independent cause of action . . . for an employer’s failure to
engage in a good faith interactive process to determine an effective accommodation, once
one is requested,” as required by section 12940, subdivision (n). (Gelfo v. Lockheed
Martin Corp. (2006) 140 Cal.App.4th 34, 54.) Thus, it is a separate violation of FEHA
“[f]or an employer . . . to fail to engage in a timely, good faith, interactive process with
the employee . . . to determine effective reasonable accommodations, if any, in response
to a request for reasonable accommodation by an employee . . . with a known . . . mental
disability . . . .” (§ 12940, subd. (n); see Wysinger v. Automobile Club of Southern
California (2007) 157 Cal.App.4th 413, 424.) “‘The “interactive process” required by
the FEHA is an informal process with the employee or the employee’s representative, to
attempt to identify a reasonable accommodation that will enable the employee to perform
the job effectively. [Citation.] Ritualized discussions are not necessarily required.’
[Citation.]” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013.)
The responsibility for initiating the process and determining a reasonable accommodation
rests with the employee. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th
426, 443.)
St. Mary’s submitted evidence that, beginning in April 2011 when Dr. De first
informed Dr. Choi and the Clinical Competency Committee of her ADHD diagnosis,
there were numerous efforts by St. Mary’s, including by members of the committee,
faculty members, and attending physicians, to make reasonable accommodations for Dr.
De. Dr. De gave Dr. Choi and the committee a copy of the April 11, 2011 letter from her
personal physician, Dr. Lee, stating the diagnosis and making several suggestions for
accommodations for Dr. De. Dr. Lee’s suggestions included that Dr. De work in an
outpatient clinic or other structured situation, that faculty members give Dr. De specific
performance expectations, and that Dr. De have additional opportunities to meet with the
attending physicians on her clinical rotations. On April 19, 2011, the committee
discussed these proposed accommodations and agreed to all of them. Later in April
2011, her faculty advisor, Dr. Ramos, presented Dr. De with a written probation
18
agreement setting forth the expectations of the faculty for her during the probationary
period. Dr. Choi also met with her to discuss the terms of her probation and to sign the
probation agreement. When Dr. De returned to work, the interactive process continued.
Dr. Ramos and Dr. Yeh had day-to-day interactions with Dr. De, as did the other faculty
members and teaching attending physicians who supervised her, exactly as she had
requested.
St. Mary’s met its burden to provide evidence that it engaged in the interactive
process. Dr. De did not provide evidence sufficient to raise a triable issue of material
fact. Nor does she cite to any on appeal. Dr. De argues, without citing to any evidence,
that she “requested the extension of her contract in order to allow her to finish her
residency at St. Mary’s,” but she does not cite to any authority for her implied argument
that St. Mary’s failed to engage in the interactive process by refusing to enter into a
contract extension, or to sign a new contract.
E. St. Mary’s Did Not Fail To Make Reasonable Accommodations for Dr. De
It is a violation of FEHA “[f]or an employer . . . to fail to make reasonable
accommodation for the known . . . mental disability of an . . . employee. . . . (§ 12940,
subd. (m); see Gelfo v. Lockheed Martin Corp., supra, 140 Cal.App.4th at p. 54
[“‘[u]nder the express provisions of the FEHA, the employer’s failure to reasonably
accommodate a disabled individual is a violation of the statute in and of itself’”].) “‘The
elements of a failure to accommodate claim are similar to the elements of a . . . section
12940, subdivision (a) discrimination claim . . . . The plaintiff must, in both cases,
establish that he or she suffers from a disability covered by FEHA and that he or she is a
qualified individual. . . . [T]he third element [under a subdivision (a) claim] . . .
establishing that an “adverse employment action” was caused by the employee’s
disability—is irrelevant to this type of claim. Under the express provisions of the FEHA,
the employer’s failure to reasonably accommodate a disabled individual is a violation of
the statute in and of itself. [Citation.]’ [Citation.]” (Furtado v. State Personnel Bd.,
supra, 212 Cal.App.4th at pp. 744-745.) “‘[R]easonable accommodation’ in the FEHA
19
means . . . a modification or adjustment to the workplace that enables the employee to
perform the essential functions of the job held or desired.” (Nadaf-Rahrov v. Neiman
Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 974; see 2 Cal. Code Regs. § 11065,
subd. (p)(1)(B) [“‘[r]easonable accommodation’” includes “modifications or adjustments
that are” “effective in enabling an employee to perform the essential functions of the job
the employee holds or desires”].) “The elements of a failure to accommodate claim are
(1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform
the essential functions of the position, and (3) the employer failed to reasonably
accommodate the plaintiff’s disability. [Citation.]” (Scotch v. Art Institute of California,
supra, 173 Cal.App.4th at pp. 1009-1010.)
As discussed, the evidence submitted by St. Mary’s was that Dr. De was not a
qualified individual because she could not perform the essential functions of her job with
or without reasonable accommodation, and Dr. De did not create a triable issue of
material fact on this issue. (See Lui v. City and County of San Francisco, supra, 211
Cal.App.4th at p. 985 [“trial court properly rejected plaintiff’s discrimination and failure
to accommodate claims on the basis that he was not a qualified individual able to perform
the essential functions of the positions . . . even with reasonable accommodations”].)
Moreover, also as discussed, the evidence submitted by St. Mary’s showed that St.
Mary’s gave Dr. De every accommodation she requested upon her return to work in April
2011. The committee accommodated Dr. De by placing her in the less-stressful
environment of a clinic rather than on a medical team so that she could receive more and
direct monitoring, supervision, and feedback regarding her progress. The committee also
relieved her of the obligation of pre-rounding so that she could come to work later, work
less, and manage a reduced patient load.
Dr. De asserts that St. Mary’s did not provide two other accommodations she
requested: time off to adjust to her medications and an extension of her residency
contract. Dr. De, however, never asked for the former, and the latter was not reasonable.
Dr. De points to no evidence that she ever asked for or needed time off to adjust to the
ADHD medication prescribed by Dr. Lee. To the contrary, St. Mary’s first learned of
20
Dr. De’s diagnosis from Dr. Lee’s April 11, 2011 letter, which suggested that Dr. De did
not need time off to adjust to her medication and stated that her medication change would
allow her “to return to work . . . at the present time.”
As for an extension of Dr. De’s residency employment contract, we can see how,
in some circumstances, additional time to complete certain employment tasks or course
requirements may be a reasonable accommodation. A reasonable accommodation under
FEHA may include job restructuring and part-time or modified work schedules.
(Furtado v. State Personnel Bd., supra, 212 Cal.App.4th at p. 745; Raine v. City of
Burbank, supra, 135 Cal.App.4th at pp. 1222-1223.) Additional time off can also be a
reasonable accommodation. (See Wilson v. County of Orange (2009) 169 Cal.App.4th
1185, 1193-1194; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226.) In the
academic setting,8 additional time is a common reasonable accommodation imposed on
an educational institution or examining body for medical and other graduate students with
disabilities. (See, e.g., Turner v. Association of American Medical Colleges (2008) 167
Cal.App.4th 1401, 1410 [“[t]he ADA requires reasonable accommodations on
standardized tests for those with qualifying disabilities”]; Constantine v. Rectors &
Visitors of George Mason University (4th Cir. 2005) 411 F.3d 474, 478, 498-499 [law
student with “‘intractable migraine syndrome’” was entitled to additional time on final
examination under the ADA]; Gonzales v. National Bd. of Medical Examiners (6th Cir.
2000) 225 F.3d 620, 626 [board of medical examiners has an “obligation to provide
reasonable accommodations, including extra time” on examinations, to students with
disabilities]; Maples v. University of Texas Medical Branch at Galveston (S.D.Tex. 2012)
8 A residency program involves both employment and education. “‘[A] resident is a
categorical hybrid, being both an employee [citation] and a student [citation].’
[Citation.]” (Marmion v. Mercy Hospital & Medical Center (1983) 145 Cal.App.3d 72,
85, quoting Ezekial v. Winkley (1977) 20 Cal.3d 267, 282; see University of Southern
California v. Superior Court (1996) 45 Cal.App.4th 1283, 1290, fn. 7 [“[a]lthough [the
resident] contends she seeks ‘reinstatement of her employment contract,’ her
‘employment’ was contingent upon her remaining a resident in good standing in the . . .
training program”].)
21
901 F.Supp.2d 874, 883 [medical school reasonably accommodated physician assistant
student’s “ADHD by providing her with additional time and a distraction-free
environment for tests” but did not have to allow her to retake the tests on which she
performed poorly].)9
Here, however, extending Dr. De’s contract would not have been a reasonable
accommodation because there is no indication in the evidence that she ever would have
been competent to treat patients in the ICU or would have been able to complete the
remaining required hospital rotations. As the trial court concluded, “[e]xtending [Dr.
De’s] contract would have been an unreasonable accommodation in light of the threat to
patient safety,” and Dr. De “failed to submit admissible evidence showing she could have
performed the job duties of a third-year Resident with the extension . . . .” Moreover, an
extended residency with the accommodations she requested and needed (increased
supervision, decreased patient responsibility, and reduced patient work load) would not
have produced an independent resident physician within the objectives of the program.
Even if St. Mary’s had extended Dr. De’s contract to give her an additional number of
months “in order to allow her to finish her residency at St. Mary’s,” as she argues on
appeal St. Mary’s should have done, the conditions under which such an extension would
have occurred were inconsistent with the goals and policies of the residency program.
F. Retaliation for Opposition to FEHA Violations and for Medical Leave
“To state a claim of retaliation under FEHA, a plaintiff must show (1) he engaged
in a protected activity, (2) he was subjected to an adverse employment action, and
(3) there is a causal link between the protected activity and the adverse employment
action. [Citations.]” (Rope v. Auto-Chlor System of Washington, Inc., supra, 220
9 “‘Because the ADA and FEHA share the goal of eliminating discrimination, we
often look to federal case authority to guide the construction and application of
FEHA . . . .’ [Citation.]” (Rope v. Auto-Chlor System of Washington, Inc., supra, 220
Cal.App.4th at p. 656.)
22
Cal.App.4th at p. 651; Nadaf-Rahrov v. Neiman Marcus Group, Inc., supra, 166
Cal.App.4th at p. 989.) Dr. De asserts that she suffered multiple adverse employment
actions within a short period of time after she engaged in the protected activity of
requesting reasonable accommodations. These adverse employment actions included
undeserved criticism beginning April 27, 2011, “termination immediately following her
requested accommodation on June 30, 2011 and refusal to extend her contract in the July
2011 meeting.” She provides no further description of the actions and cites to no
supporting evidence in the record, nor does she show a causal link between any requested
accommodation and any specific adverse employment action. (See Yanowitz v. L’Oreal
USA, Inc. (2005) 36 Cal.4th 1028, 1042 [plaintiff must show “a causal link existed
between the protected activity and the employer’s action”].) Moreover, a request for an
accommodation is not a protected activity under FEHA. (See Rope v. Auto-Chlor System
of Washington, Inc., supra, 220 Cal.App.4th at p. 652 [“we find no support in the
regulations or case law for the proposition that a mere request—or even repeated
requests—for an accommodation, without more, constitutes a protected activity sufficient
to support a claim for retaliation in violation of FEHA”].)
G. Failure to Prevent Discrimination
“‘[A]n employee who has not been discriminated against [cannot] sue an employer
for not preventing discrimination . . . when no discrimination occurred . . . .’” (Trujillo v.
North County Transit Dist. (1998) 63 Cal.App.4th 280, 284, 289.) De’s sixth cause of
action for failure to prevent discrimination failed because her first cause of action for
disability discrimination failed.
H. Wrongful Termination in Violation of Public Policy
Dr. De does not argue that the trial court erred by dismissing her cause of action
for wrongful termination in violation of public policy, and she has forfeited any issue
relating to that claim. (See Estes v. Monroe (2004) 120 Cal.App.4th 1347, 1352 [plaintiff
forfeited appeal as to “cause[] of action by failing to brief, argue, or discuss” the cause of
23
action]; Sanchez-Scott v. Alza Pharmaceuticals (2001) 86 Cal.App.4th 365, 368, fn. 1
[plaintiff’s failure to raise any argument in briefs as to one cause of action forfeited any
issue on appeal concerning that cause of action].) In any event, St. Mary’s did not
terminate Dr. De’s employment, wrongfully or otherwise. Dr. De’s employment contract
expired on June 30, 2011.
DISPOSITION
The judgment is affirmed. Defendant shall recover its costs on appeal.
SEGAL, J.*
We concur:
PERLUSS, P. J.
ZELON, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
24
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755 F.2d 26
1985 A.M.C. 1643
CHINA UNION LINES, LIMITED and International Union MaritimeInsurance Company, Limited,Plaintiffs-Appellees-Cross-Appellants,v.AMERICAN MARINE UNDERWRITERS, INC., Calvert Fire InsuranceCo., Canadian Marine Underwriters Limited, and CNAAssurance Company, Inc., Defendants,CNA Assurance Company, Inc., Defendant-Appellant.AMERICAN MARINE UNDERWRITERS, INC., and Calvert FireInsurance Co., Defendants-Third Party Plaintiffs,Calvert Fire Insurance Co., Defendant-Third Party Plaintiff-Appellant,v.I.R. POSGATE AND OTHER UNDERWRITERS AT LLOYD'S SUBSCRIBINGTO REINSURANCE CONTRACT "GHL NO. 1039-61", ThirdParty Defendants.CHINA UNION LINES, LIMITED and International Union MaritimeInsurance Company, Limited,Plaintiffs-Appellees-Cross-Appellants,v.ALEXANDER & ALEXANDER, INCORPORATED and C.E. Heath & Co.(Marine) Ltd., Defendants-Cross-Appellees.
Cal. Nos. 167, 168, 239, Dockets 84-7394, 84-7396, 84-7398.
United States Court of Appeals,Second Circuit.
Argued Oct. 15, 1984.Decided Feb. 7, 1985.
John M. Townsend, New York City (Hughes Hubbard & Reed and Bruce R. Kelly, New York City, of counsel), for plaintiffs-appellees-cross-appellants China Union Lines, Ltd. and Internl. Union Maritime Ins. Co., Ltd.
John J. Palmeri, New York City (Palmeri & Gaven, New York City, of counsel), for defendant-cross-appellee Alexander & Alexander, Inc.
Joseph F. DeMay, Jr., New York City (Cichanowicz, Callan, Carcich & Keane, and Victor S. Cichanowicz, New York City, of counsel), for defendant-cross-appellee C.E. Heath & Co. (Marine) Ltd.
Raymond S. Jackson, Jr., New York City (Thacher, Proffitt & Wood, Sheldon A. Vogel, Joan H. Hillenbrand, and Paul V. Nunes, New York City, of counsel), for defendant-third party plaintiff-appellant Calvert Fire Ins. Co.
Geoffrey W. Gill, New York City (Walker & Corsa, LeRoy S. Corsa, and Kathleen V. McQuilling, New York City, of counsel), for defendant-appellant CNA Assur. Co., Inc.
Before OAKES and VAN GRAAFEILAND, Circuit Judges, and TENNEY, District Judge.*
VAN GRAAFEILAND, Circuit Judge:
1
Calvert Fire Insurance Co. (Calvert) and CNA Assurance Company, Inc. (CNA) appeal from a judgment of the United States District Court for the Southern District of New York (Broderick, J.) holding them liable under contracts of marine insurance in the total amount of $2,892,502 because of the loss at sea on February 12, 1975 of the ship UNION EAST. China Union Lines, Limited (China Union), the Taiwanese shipowner, and International Union Maritime Insurance Company, Limited (International), China Union's wholly-owned subsidiary, cross-appeal from that portion of the judgment dismissing the complaint as to the other defendants, intending thereby only to preserve their rights in the event of reversal on the primary appeal.
2
At issue herein is a somewhat complex plan of insurance, designed by C.E. Heath & Co. (Marine) Ltd. (Heath) to reduce the cost to China Union of insuring the hulls and machinery of its fleet of ships. The insurance was to take effect on January 14, 1975. Because Taiwan requires ships bearing its flag to be insured in the first instance by Taiwanese companies, Heath's plan called for China Union to place part of the risk of its fleet with International, its captive company, and the remainder with various other Taiwanese insurance companies. International's policy would insure China Union for up to $150,000 per claim, subject to a $10,000 deductible on all claims except total loss. The other Taiwanese policies would provide total coverage of $9 million, subject to a $150,000 deductible per claim including total loss. The companies issuing these policies would reinsure 80% of their coverage with International, which, in turn, would reinsure its entire insurance package at various places around the world. As a result of this arrangement, Heath ended up handling the placement of a substantial portion of the package.
3
A money-saving component of Heath's plan was the placement of 55% of its share on the less expensive, non-London, "overseas" market. Heath offered overseas insurers an optional premium that would be either the insurer's proportionate share of a total premium of $675,000 less 20% brokers' commissions or its proportionate share of $600,000 less 10% brokers' commissions.
4
The instant case involves only the 15% share Heath offered to Alexander & Alexander, Incorporated (Alexander), a United States marine insurance broker, on January 9, 1975. Heath first telephoned its offer to Alexander, then followed with a telex setting forth the terms and describing the ships to be covered. Upon receiving Heath's offer, Alexander's agent, Thomas Degnan, telephoned Alex Carter, vice-president of American Marine Underwriters, Inc. (American Marine), which represented a number of United States insurance companies including Calvert. Degnan told Carter the terms of Heath's offer, sent Carter a copy of Heath's telex, and, responding to Carter's inquiry, secured information from Heath as to the renewal date. Degnan then assigned the task of placement to a fellow employee, Charles Nutter.
5
Nutter called Carter to give him the renewal date, and the two men went over the terms of Heath's original telex, which, they decided, required some clarification. After agreeing to secure the clarification, Nutter requested that American Marine lead Alexander's participation, as it had done with past offerings. On behalf of Calvert, Carter agreed to accept two-thirds of the 15% placement on the $600,000 premium basis.
6
Nutter then called Peter Smith, vice-president of Canadian Marine Underwriters, Ltd. (Canadian Marine), seeking to place the remaining one-third of the China Union offering. Smith agreed that Canadian Marine would take the 5% on the $600,000 premium basis, and thereafter placed the 5% with CNA.
7
Seeking to place more of the China Union risk, Nutter also contacted an agent of New York Marine Managers, who inquired, among other things, whether Alexander's offering was on the same terms and conditions as the London market and, if so, who were the lead London underwriters. Nutter promptly telexed Heath seeking this and other information. On the next day, January 14, Nutter received a telex from Heath, which read in part as follows:
8
LONDON PARTICIPATION SAME BASIS BUT DIFFERENT PREMIUM AS ADVISED PREVIOUSLY PER TELEPHONE RISK LEAD BY HOME INSURANCE COMPANY AND H.G. CHESTER.
9
During a conversation with Carter regarding other matters on January 17, Nutter read him Heath's January 14 telex. Shortly thereafter, Alexander sent American Marine and Canadian Marine proposed binders, which, in due course, were signed and returned.
10
On February 19, American Marine and Canadian Marine were informed that the UNION EAST had sunk. Heath notified Alexander on February 28 that it would be filing a claim for total loss of the ship and asked whether American Marine and Canadian Marine would agree to deduct the premiums owed them from their liability on the loss. Because appellants have never conceded liability, no agreement was reached as to the offsetting of premiums.
11
Coincidently, Alexander also received on February 28 Heath's slip describing the insurance to be furnished by American Marine and Canadian Marine. In contrast to the binder which listed China Union as assured, the slip described the coverage as "Reinsurance of International Union Marine Insurance Co." Subsequently, the American underwriters also learned that Heath had placed other portions of the risk on the London market on a premium basis of $885,600, which, of course, was more favorable than the terms offered the American underwriters.
12
Recognizing that there may have been "some confusion" concerning the terms of the risk, Heath invited Alexander's clients to amend their agreements to conform to the London terms. However, both American Marine and Canadian Marine declined Heath's offer, contending that their agreed coverage was void from its inception because they had not been informed of the disparity in the terms offered London and American underwriters. They rejected claims for payment of the loss, and this litigation followed.
13
The panel is in accord with respect to the district court's holding on liability. The amount of the award has the approval of only two panel members.
THE LIABILITY
14
Calvert's principal contention on appeal is that it was misinformed concerning the payment of higher London premiums. The district court found, however, that there were no representations or misrepresentations concerning London premiums prior to the time appellants bound themselves on the risk. This finding has support in the record. Moreover, Heath's telex of January 14, 1975 stated specifically that London participation was on the same basis but at a different premium.
15
There is no merit in Calvert's argument that Heath should have disclosed the difference in premiums at the outset, because, Calvert asserts, it was a factor that materially affected the risk. See Btesh v. Royal Ins. Co., Ltd., 49 F.2d 720 (2d Cir.1931); 9 Couch on Insurance 2d Sec. 38:76 (1962). Appellant's own witness testified that it is common for premiums on the same risk to vary as between insurers, and silence concerning well-established practices and matters of general knowledge does not affect the validity of a marine insurance contract, Anne Quinn Corp. v. American Manufacturers Mutual Ins. Co., 369 F.Supp. 1312, 1315 (S.D.N.Y.1973), aff'd mem., 505 F.2d 727 (2d Cir.1974). Moreover, there is little if any relationship between such variances in premium and the gravity of the risk. An insurer weighs its exposure against the premium which it, itself, receives.
16
Calvert's argument that it was not bound by its apparent contractual undertaking because there was no meeting of the minds concerning London premiums, is likewise without merit. The objective, not the subjective, intent of the parties governs their contractual obligations, Pan American World Airways, Inc. v. Aetna Casualty & Surety Co., 505 F.2d 989, 1003 (2d Cir.1974); and, even after Calvert was informed by Nutter of the difference in premiums, it voiced no complaint.
17
CNA's principal contention is that neither China Union nor International had the insurable interest needed for recovery. Although CNA did not assert this as a ground for its disclaimer, it argued it in the court below. CNA asserts in its appellate brief that, since China Union had insurance covering 100% of the value of the vessel, "[t]his insurance stood in place of China Union's insurable interest." This, of course, is not so. Duplication of coverage is not an unknown occurrence in the field of marine insurance. See 16 Couch, supra, Sec. 62:217; see also 3 id. at Sec. 24:91. Not surprisingly, CNA later modifies its prior blanket statement by asserting that the insurance issued by the Taiwan carriers "superseded China Union's insurable interest, which then may be said to have become 'directional' ", i.e., existing only with regard to China Union's claims against its direct insurers. Here, we suggest, CNA is confusing insurable interest with privity of contract. As a general rule, reinsurance contracts are contracts of indemnity, which give the original assured no right of action against the reinsurer. However, the reinsurer may agree to be directly liable to the original assured. Bruckner-Mitchell, Inc. v. Sun Indemnity Co., 82 F.2d 434, 444 (D.C.Cir.), cert. denied, 298 U.S. 677, 56 S.Ct. 941, 80 L.Ed. 1398 (1936); 19 Couch, supra, Sec. 80:70. If, instead of arguing lack of insurable interest, CNA had discussed the terms of the proposed contracts of reinsurance, the district court might have done the same. The court should not be faulted for discussing and rejecting CNA's insurable interest argument, an argument that was without merit.
18
In any event, International's liability as insurer and reinsurer gave it an insurable interest, which it might protect by reinsuring. 3 Couch, supra, Sec. 24:58. The district court found that, as of January 14, 1975, one month prior to the loss, "the structure of insurance and reinsurance developed by Heath was in place", and "the insurance and reinsurance [were] all effective". This finding was not clearly erroneous. International, China Union's wholly-owned subsidiary, thus was a direct beneficiary of the insurance being placed by Heath, and it made little difference, as a practical matter, whether China Union was entitled to recover in its own name.
19
Conceivably, CNA could have been prejudiced by the fact that it was reinsuring rather than furnishing direct coverage. For example, the slip that Alexander received from Heath on February 28, 1975 contained an "ex gratia" clause, which would bind CNA to any settlements made between China Union and its wholly-owned subsidiary, International, whether made with or without CNA's consent or approval. However, CNA does not contend that it is being asked to pay for a false or inflated loss. Moreover, as was true with CNA's claim concerning lack of insurable interest, CNA did not assert the fact of reinsurance as a basis for disclaimer. Indeed, CNA's fellow defendant, Calvert, has never urged this as a reason for denying liability. The district court properly rejected CNA's argument.
THE AWARD
20
Calvert and CNA were held liable in the principal amounts of $900,000 and $450,000 respectively. They also were held liable for pre-judgment interest in the respective amounts of $1,028,334 and $514,167, the interest in each case being substantially in excess of the principal. This was due to the fact that judgment was not entered until March 30, 1984, over nine years after the principal became due, and interest was fixed in accordance with the rate on three-month treasury bills, compounded annually. Recognizing that the allowance of pre-judgment interest generally is favored in admiralty cases, Mitsui & Co., Ltd. v. American Export Lines, Inc., 636 F.2d 807, 823 (2d Cir.1981), and that the district court exercises a broad discretion in making such awards, Independent Bulk Transport, Inc. v. Vessel "Morania Abaco", 676 F.2d 23 (2d Cir.1982), Judge Oakes and Judge Tenney find no abuse of that discretion in this case. The writer disagrees.
21
The docket sheet shows that the four-day, non-jury trial ended on July 24, 1980. The district court's decision was dated March 9, 1984. Compound interest was awarded during the four years that elapsed between trial and judgment as follows: 1980--11.506%; 1981--14.029%; 1982--10.686%; 1983--8.63%; 1984--8.98%. Moreover, interest was compounded even though it appears that appellees did not lose the use of the principal sums. The record discloses that appellees suspended or deferred premium payments to Heath that were in excess of the amounts owed by appellants. See Norte & Co. v. Huffines, 416 F.2d 1189, 1192 (2d Cir.1969), cert. denied, 397 U.S. 989, 90 S.Ct. 1121, 25 L.Ed.2d 396 (1970). The writer believes that "[a] system so devoted to equitable principles as the admiralty", see Schilling v. A/S D/S Dannebrog, 320 F.2d 628, 633 (2d Cir.1963), should be able to provide a remedy that more fairly and equitably adjusts the parties' differences. Simple, rather than compound, interest would reduce the total award by at least three hundred thousand dollars. In view of the unusual and unwarranted delay that occurred in this case, the writer believes that the award of compound interest was an inequitable abuse of discretion. The writer also is motivated to this view by the fact that appellants have not received one cent in premiums, and appellees are about to collect almost $3 million for which they have paid nothing.1
22
There is no merit in any of appellants' remaining arguments. The judgment of the district court is affirmed.
* U.S. District Judge of the Southern District of New York, sitting by designation.
1
The record is silent as to whether China Union was forced to pay premiums to an alternative insurer in order to close the 15% gap in fleet coverage created by appellants' refusal to pay, or as to the cost of such coverage
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436 U.S. 307 (1978)
MARSHALL, SECRETARY OF LABOR, ET AL.
v.
BARLOW'S, INC.
No. 76-1143.
Supreme Court of the United States.
Argued January 9, 1978.
Decided May 23, 1978.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
*308 Solicitor General McCree argued the cause for appellants. With him on the briefs were Deputy Solicitor General Wallace, Stuart A. Smith, and Michael H. Levin.
John L. Runft argued the cause for appellee. With him on the brief was Iver J. Longeteig.[*]
*309 MR. JUSTICE WHITE delivered the opinion of the Court.
Section 8 (a) of the Occupational Safety and Health Act of 1970 (OSHA or Act)[1] empowers agents of the Secretary of Labor (Secretary) to search the work area of any employment facility within the Act's jurisdiction. The purpose of the search is to inspect for safety hazards and violations of OSHA regulations. No search warrant or other process is expressly required under the Act.
On the morning of September 11, 1975, an OSHA inspector entered the customer service area of Barlow's, Inc., an electrical and plumbing installation business located in Pocatello, Idaho. The president and general manager, Ferrol G. "Bill" Barlow, was on hand; and the OSHA inspector, after showing his credentials,[2] informed Mr. Barlow that he wished to conduct *310 a search of the working areas of the business. Mr. Barlow inquired whether any complaint had been received about his company. The inspector answered no, but that Barlow's, Inc., had simply turned up in the agency's selection process. The inspector again asked to enter the nonpublic area of the business; Mr. Barlow's response was to inquire whether the inspector had a search warrant. The inspector had none. Thereupon, Mr. Barlow refused the inspector admission to the employee area of his business. He said he was relying on his rights as guaranteed by the Fourth Amendment of the United States Constitution.
Three months later, the Secretary petitioned the United States District Court for the District of Idaho to issue an order compelling Mr. Barlow to admit the inspector.[3] The requested order was issued on December 30, 1975, and was presented to Mr. Barlow on January 5, 1976. Mr. Barlow again refused admission, and he sought his own injunctive relief against the warrantless searches assertedly permitted by OSHA. A three-judge court was convened. On December 30, 1976, it ruled in Mr. Barlow's favor. 424 F. Supp. 437. Concluding that Camara v. Municipal Court, 387 U. S. 523, 528-529 (1967), and See v. Seattle, 387 U. S. 541, 543 (1967), controlled this case, the court held that the Fourth Amendment required a warrant for the type of search involved here[4] and that the statutory authorization for warrantless inspections was unconstitutional. An injunction against searches or inspections pursuant to § 8 (a) was entered. The Secretary appealed, challenging the judgment, and we noted probable jurisdiction. 430 U. S. 964.
*311 I
The Secretary urges that warrantless inspections to enforce OSHA are reasonable within the meaning of the Fourth Amendment. Among other things, he relies on § 8 (a) of the Act, 29 U. S. C. § 657 (a), which authorizes inspection of business premises without a warrant and which the Secretary urges represents a congressional construction of the Fourth Amendment that the courts should not reject. Regrettably, we are unable to agree.
The Warrant Clause of the Fourth Amendment protects commercial buildings as well as private homes. To hold otherwise would belie the origin of that Amendment, and the American colonial experience. An important forerumier of the first 10 Amendments to the United States Constitution, the Virginia Bill of Rights, specifically opposed "general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed."[5] The general warrant was a recurring point of contention in the Colonies immediately preceding the Revolution.[6] The particular offensiveness it engendered was acutely felt by the merchants and businessmen whose premises and products were inspected for compliance with the several parliamentary revenue measures that most irritated the colonists.[7] "[T]he Fourth Amendment's commands grew in large measure out of the colonists' experience with the writs of assistance. . . [that] granted sweeping power to customs officials and other agents of the King to search at large for smuggled goods." United States v. Chadwick, 433 U. S. 1, 7-8 (1977). *312 See also G. M. Leasing Corp. v. United States, 429 U. S. 338, 355 (1977). Against this background, it is untenable that the ban on warrantless searches was not intended to shield places of business as well as of residence.
This Court has already held that warrantless searches are generally unreasonable, and that this rule applies to commercial premises as well as homes. In Camara v. Municipal Court, supra, at 528-529, we held:
"[E]xcept in certain carefully defined classes of cases, a search of private property without proper consent is `unreasonable' unless it has been authorized by a valid search warrant."
On the same day, we also ruled:
"As we explained in Camara, a search of private houses is presumptively unreasonable if conducted without a warrant. The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by a warrant." See v. Seattle, supra, at 543.
These same cases also held that the Fourth Amendment prohibition against unreasonable searches protects against warrantless intrusions during civil as well as criminal investigations. Ibid. The reason is found in the "basic purpose of this Amendment . . . [which] is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Camara, supra, at 528. If the government intrudes on a person's property, the privacy interest suffers whether the government's motivation is to investigate violations of criminal laws or breaches of other statutory or *313 regulatory standards. It therefore appears that unless some recognized exception to the warrant requirement applies, See v. Seattle would require a warrant to conduct the inspection sought in this case.
The Secretary urges that an exception from the search warrant requirement has been recognized for "pervasively regulated business[es]," United States v. Biswell, 406 U. S. 311, 316 (1972), and for "closely regulated" industries "long subject to close supervision and inspection." Colonnade Catering Corp. v. United States, 397 U. S. 72, 74, 77 (1970). These cases are indeed exceptions, but they represent responses to relatively unique circumstances. Certain industries have such a history of government oversight that no reasonable expectation of privacy, see Katz v. United States, 389 U. S. 347, 351-352 (1967), could exist for a proprietor over the stock of such an enterprise. Liquor (Colonnade) and firearms (Biswell) are industries of this type; when an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of governmental regulation.
Industries such as these fall within the "certain carefully defined classes of cases," referenced in Camara, 387 U. S., at 528. The element that distinguishes these enterprises from ordinary businesses is a long tradition of close government supervision, of which any person who chooses to enter such a business must already be aware. "A central difference between those cases [Colonnade and Biswell] and this one is that businessmen engaged in such federally licensed and regulated enterprises accept the burdens as well as the benefits of their trade, whereas the petitioner here was not engaged in any regulated or licensed business. The businessman in a regulated industry in effect consents to the restrictions placed upon him." Almeida-Sanchez v. United States, 413 U. S. 266, 271 (1973).
The clear import of our cases is that the closely regulated industry of the type involved in Colonnade and Biswell is the exception. The Secretary would make it the rule. Invoking *314 the Walsh-Healey Act of 1936, 41 U. S. C. § 35 et seq., the Secretary attempts to support a conclusion that all businesses involved in interstate commerce have long been subjected to close supervision of employee safety and health conditions. But the degree of federal involvement in employee working circumstances has never been of the order of specificity and pervasiveness that OSHA mandates. It is quite unconvincing to argue that the imposition of minimum wages and maximum hours on employers who contracted with the Government under the Walsh-Healey Act prepared the entirety of American interstate commerce for regulation of working conditions to the minutest detail. Nor can any but the most fictional sense of voluntary consent to later searches be found in the single fact that one conducts a business affecting interstate commerce; under current practice and law, few businesses can be conducted without having some effect on interstate commerce.
The Secretary also attempts to derive support for a Colonnade-Biswell-type exception by drawing analogies from the field of labor law. In Republic Aviation Corp. v. NLRB, 324 U. S. 793 (1945), this Court upheld the rights of employees to solicit for a union during nonworking time where efficiency was not compromised. By opening up his property to employees, the employer had yielded so much of his private property rights as to allow those employees to exercise § 7 rights under the National Labor Relations Act. But this Court also held that the private property rights of an owner prevailed over the intrusion of nonemployee organizers, even in nonworking areas of the plant and during nonworking hours. NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956).
The critical fact in this case is that entry over Mr. Barlow's objection is being sought by a Government agent.[8] Employees *315 are not being prohibited from reporting OSHA violations. What they observe in their daily functions is undoubtedly beyond the employer's reasonable expectation of privacy. The Government inspector, however, is not an employee. Without a warrant he stands in no better position than a member of the public. What is observable by the public is observable, without a warrant, by the Government inspector as well.[9] The owner of a business has not, by the necessary utilization of employees in his operation, thrown open the areas where employees alone are permitted to the warrantless scrutiny of Government agents. That an employee is free to report, and the Government is free to use, any evidence of noncompliance with OSHA that the employee observes furnishes no justification for federal agents to enter a place of business from which the public is restricted and to conduct their own warrantless search.[10]
II
The Secretary nevertheless stoutly argues that the enforcement scheme of the Act requires warrantless searches, and that the restrictions on search discretion contained in the Act and its regulations already protect as much privacy as a warrant would. The Secretary thereby asserts the actual reasonableness of OSHA searches, whatever the general rule against warrantless searches might be. Because "reasonableness is still the ultimate standard," Camara v. Municipal *316 Court, 387 U. S., at 539, the Secretary suggests that the Court decide whether a warrant is needed by arriving at a sensible balance between the administrative necessities of OSHA inspections and the incremental protection of privacy of business owners a warrant would afford. He suggests that only a decision exempting OSHA inspections from the Warrant Clause would give "full recognition to the competing public and private interests here at stake." Ibid.
The Secretary submits that warrantless inspections are essential to the proper enforcement of OSHA because they afford the opportunity to inspect without prior notice and hence to preserve the advantages of surprise. While the dangerous conditions outlawed by the Act include structural defects that cannot be quickly hidden or remedied, the Act also regulates a myriad of safety details that may be amenable to speedy alteration or disguise. The risk is that during the interval between an inspector's initial request to search a plant and his procuring a warrant following the owner's refusal of permission, violations of this latter type could be corrected and thus escape the inspector's notice. To the suggestion that warrants may be issued ex parte and executed without delay and without prior notice, thereby preserving the element of surprise, the Secretary expresses concern for the administrative strain that would be experienced by the inspection system, and by the courts, should ex parte warrants issued in advance become standard practice.
We are unconvinced, however, that requiring warrants to inspect will impose serious burdens on the inspection system or the courts, will prevent inspections necessary to enforce the statute, or will make them less effective. In the first place, the great majority of businessmen can be expected in normal course to consent to inspection without warrant; the Secretary has not brought to this Court's attention any widespread pattern of refusal.[11] In those cases where an owner does insist *317 on a warrant, the Secretary argues that inspection efficiency will be impeded by the advance notice and delay. The Act's penalty provisions for giving advance notice of a search, 29 U. S. C. § 666 (f), and the Secretary's own regulations, 29 CFR § 1903.6 (1977), indicate that surprise searches are indeed contemplated. However, the Secretary has also promulgated a regulation providing that upon refusal to permit an inspector to enter the property or to complete his inspection, the inspector shall attempt to ascertain the reasons for the refusal and report to his superior, who shall "promptly take appropriate action, including compulsory process, if necessary." 29 CFR § 1903.4 (1977).[12] The regulation represents a choice to proceed *318 by process where entry is refused; and on the basis of evidence available from present practice, the Act's effectiveness has not been crippled by providing those owners who wish to refuse an initial requested entry with a time lapse while the inspector obtains the necessary process.[13] Indeed, the kind of process sought in this case and apparently anticipated by the regulation provides notice to the business operator.[14]*319 If this safeguard endangers the efficient administration of OSHA, the Secretary should never have adopted it, particularly when the Act does not require it. Nor is it immediately *320 apparent why the advantages of surprise would be lost if, after being refused entry, procedures were available for the Secretary to seek an ex parte warrant and to reappear at the premises without further notice to the establishment being inspected.[15]
Whether the Secretary proceeds to secure a warrant or other process, with or without prior notice, his entitlement to inspect will not depend on his demonstrating probable cause to believe that conditions in violation of OSHA exist on the premises. Probable cause in the criminal law sense is not required. For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation[16] but also on a showing that "reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular [establishment] ." Camara *321 v. Municipal Court, 387 U. S., at 538. A warrant showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources such as, for example, dispersion of employees in various types of industries across a given area, and the desired frequency of searches in any of the lesser divisions of the area, would protect an employer's Fourth Amendment rights.[17] We doubt that the consumption of enforcement energies in the obtaining of such warrants will exceed manageable proportions.
Finally, the Secretary urges that requiring a warrant for OSHA inspectors will mean that, as a practical matter, warrantless-search provisions in other regulatory statutes are also constitutionally infirm. The reasonableness of a warrantless search, however, will depend upon the specific enforcement needs and privacy guarantees of each statute. Some of the statutes cited apply only to a single industry, where regulations might already be so pervasive that a Colonnade-Biswell exception to the warrant requirement could apply. Some statutes already envision resort to federal-court enforcement when entry is refused, employing specific language in some cases[18] and general language in others.[19] In short, we base *322 today's opinion on the facts and law concerned with OSHA and do not retreat from a holding appropriate to that statute because of its real or imagined effect on other, different administrative schemes.
Nor do we agree that the incremental protections afforded the employer's privacy by a warrant are so marginal that they fail to justify the administrative burdens that may be entailed. *323 The authority to make warrantless searches devolves almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search. A warrant, by contrast, would provide assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria.[20] Also, a warrant would then and there advise the owner of the scope and objects of the search, beyond which limits the inspector is not expected to proceed.[21] These are important functions for a warrant to perform, functions which underlie the Court's prior decisions that the Warrant Clause applies to *324 inspections for compliance with regulatory statutes.[22]Camara v. Municipal Court, 387 U. S. 523 (1967); See v. Seattle, 387 U. S. 541 (1967). We conclude that the concerns expressed by the Secretary do not suffice to justify warrantless inspections under OSHA or vitiate the general constitutional requirement that for a search to be reasonable a warrant must be obtained.
*325 III
We hold that Barlow's was entitled to a declaratory judgment that the Act is unconstitutional insofar as it purports to authorize inspections without warrant or its equivalent and to an injunction enjoining the Act's enforcement to that extent.[23] The judgment of the District Court is therefore affirmed.
So ordered.
MR. JUSTICE BRENNAN took no part in the consideration or decision of this case.
MR. JUSTICE STEVENS, with whom MR. JUSTICE BLACKMUN and MR. JUSTICE REHNQUIST join, dissenting.
Congress enacted the Occupational Safety and Health Act to safeguard employees against hazards in the work areas of businesses subject to the Act. To ensure compliance, Congress authorized the Secretary of Labor to conduct routine, nonconsensual inspections. Today the Court holds that the Fourth Amendment prohibits such inspections without a warrant. The Court also holds that the constitutionally required warrant may be issued without any showing of probable cause. I disagree with both of these holdings.
The Fourth Amendment contains two separate Clauses, each *326 flatly prohibiting a category of governmental conduct. The first Clause states that the right to be free from unreasonable searches "shall not be violated";[1] the second unequivocally prohibits the issuance of warrants except "upon probable cause."[2] In this case the ultimate question is whether the category of warrantless searches authorized by the statute is "unreasonable" within the meaning of the first Clause.
In cases involving the investigation of criminal activity, the Court has held that the reasonableness of a search generally depends upon whether it was conducted pursuant to a valid warrant. See, e. g., Coolidge v. New Hampshire, 403 U. S. 443. There is, however, also a category of searches which are reasonable within the meaning of the first Clause even though the probable-cause requirement of the Warrant Clause cannot be satisfied. See United States v. Martinez-Fuerte, 428 U. S. 543; Terry v. Ohio, 392 U. S. 1; South Dakota v. Opperman, 428 U. S. 364; United States v. Biswell, 406 U. S. 311. The regulatory inspection program challenged in this case, in my judgment, falls within this category.
I
The warrant requirement is linked "textually . . . to the probable-cause concept" in the Warrant Clause. South Dakota v. Opperman, supra, at 370 n. 5. The routine OSHA inspections are, by definition, not based on cause to believe there is a violation on the premises to be inspected. Hence, if the inspections were measured against the requirements of the Warrant Clause, they would be automatically and unequivocally unreasonable.
*327 Because of the acknowledged importance and reasonableness of routine inspections in the enforcement of federal regulatory statutes such as OSHA, the Court recognizes that requiring full compliance with the Warrant Clause would invalidate all such inspection programs. Yet, rather than simply analyzing such programs under the "Reasonableness" Clause of the Fourth Amendment, the Court holds the OSHA program invalid under the Warrant Clause and then avoids a blanket prohibition on all routine, regulatory inspections by relying on the notion that the "probable cause" requirement in the Warrant Clause may be relaxed whenever the Court believes that the governmental need to conduct a category of "searches" outweighs the intrusion on interests protected by the Fourth Amendment.
The Court's approach disregards the plain language of the Warrant Clause and is unfaithful to the balance struck by the Framers of the Fourth Amendment"the one procedural safeguard in the Constitution that grew directly out of the events which immediately preceded the revolutionary struggle with England."[3] This preconstitutional history includes the controversy in England over the issuance of general warrants to aid enforcement of the seditious libel laws and the colonial experience with writs of assistance issued to facilitate collection of the various import duties imposed by Parliament. The Framers' familiarity with the abuses attending the issuance of such general warrants provided the principal stimulus for the restraints on arbitrary governmental intrusions embodied in the Fourth Amendment.
"[O]ur constitutional fathers were not concerned about warrantless searches, but about overreaching warrants. It is perhaps too much to say that they feared the warrant more than the search, but it is plain enough that the warrant was the prime object of their concern. Far from *328 looking at the warrant as a protection against unreasonable searches, they saw it as an authority for unreasonable and oppressive searches . . . ."[4]
Since the general warrant, not the warrantless search, was the immediate evil at which the Fourth Amendment was directed, it is not surprising that the Framers placed precise limits on its issuance. The requirement that a warrant only issue on a showing of particularized probable cause was the means adopted to circumscribe the warrant power. While the subsequent course of Fourth Amendment jurisprudence in this Court emphasizes the dangers posed by warrantless searches conducted without probable cause, it is the general reasonableness standard in the first Clause, not the Warrant Clause, that the Framers adopted to limit this category of searches. It is, of course, true that the existence of a valid warrant normally satisfies the reasonableness requirement under the Fourth Amendment. But we should not dilute the requirements of the Warrant Clause in an effort to force every kind of governmental intrusion which satisfies the Fourth Amendment definition of a "search" into a judicially developed, warrant-preference scheme.
Fidelity to the original understanding of the Fourth Amendment, therefore, leads to the conclusion that the Warrant Clause has no application to routine, regulatory inspections of commercial premises. If such inspections are valid, it is because they comport with the ultimate reasonableness standard of the Fourth Amendment. If the Court were correct in its view that such inspections, if undertaken without a warrant, are unreasonable in the constitutional sense, the issuance of a "new-fangled warrant"to use Mr. Justice Clark's characteristically expressive termwithout any true showing of particularized probable cause would not be sufficient to validate them.[5]
*329 II
Even if a warrant issued without probable cause were faithful to the Warrant Clause, I could not accept the Court's holding that the Government's inspection program is constitutionally unreasonable because it fails to require such a warrant procedure. In determining whether a warrant is a necessary safeguard in a given class of cases, "the Court has weighed the public interest against the Fourth Amendment interest of the individual . . . ." United States v. Martinez-Fuerte, 428 U. S., at 555. Several considerations persuade me that this balance should be struck in favor of the routine inspections authorized by Congress.
Congress has determined that regulation and supervision of safety in the workplace furthers an important public interest and that the power to conduct warrantless searches is necessary to accomplish the safety goals of the legislation. In assessing the public interest side of the Fourth Amendment balance, however, the Court today substitutes its judgment for that of Congress on the question of what inspection authority is needed to effectuate the purposes of the Act. The Court states that if surprise is truly an important ingredient of an effective, representative inspection program, it can be retained by obtaining ex parte warrants in advance. The Court assures the Secretary that this will not unduly burden enforcement resources because most employers will consent to inspection.
The Court's analysis does not persuade me that Congress' determination that the warrantless-inspection power as a necessary adjunct of the exercise of the regulatory power is unreasonable. It was surely not unreasonable to conclude that the rate at which employers deny entry to inspectors would increase if covered businesses, which may have safety violations on their premises, have a right to deny warrantless entry to a compliance inspector. The Court is correct that this problem could be avoided by requiring inspectors to obtain a warrant prior to every inspection visit. But the adoption of *330 such a practice undercuts the Court's explanation of why a warrant requirement would not create undue enforcement problems. For, even if it were true that many employers would not exercise their right to demand a warrant, it would provide little solace to those charged with administration of OSHA; faced with an increase in the rate of refusals and the added costs generated by futile trips to inspection sites where entry is denied, officials may be compelled to adopt a general practice of obtaining warrants in advance. While the Court's prediction of the effect a warrant requirement would have on the behavior of covered employers may turn out to be accurate, its judgment is essentially empirical. On such an issue, I would defer to Congress' judgment regarding the importance of a warrantless-search power to the OSHA enforcement scheme.
The Court also appears uncomfortable with the notion of second-guessing Congress and the Secretary on the question of how the substantive goals of OSHA can best be achieved. Thus, the Court offers an alternative explanation for its refusal to accept the legislative judgment. We are told that, in any event, the Secretary, who is charged with enforcement of the Act, has indicated that inspections without delay are not essential to the enforcement scheme. The Court bases this conclusion on a regulation prescribing the administrative response when a compliance inspector is denied entry. It provides: "The Area Director shall immediately consult with the Assistant Regional Director and the Regional Solicitor, who shall promptly take appropriate action, including compulsory process, if necessary." 29 CFR § 1903.4 (1977). The Court views this regulation as an admission by the Secretary that no enforcement problem is generated by permitting employers to deny entry and delaying the inspection until a warrant has been obtained. I disagree. The regulation was promulgated against the background of a statutory right to immediate entry, of which covered employers are presumably *331 aware and which Congress and the Secretary obviously thought would keep denials of entry to a minimum. In these circumstances, it was surely not unreasonable for the Secretary to adopt an orderly procedure for dealing with what he believed would be the occasional denial of entry. The regulation does not imply a judgment by the Secretary that delay caused by numerous denials of entry would be administratively acceptable.
Even if a warrant requirement does not "frustrate" the legislative purpose, the Court has no authority to impose an additional burden on the Secretary unless that burden is required to protect the employer's Fourth Amendment interests.[6] The essential function of the traditional warrant requirement is the interposition of a neutral magistrate between the citizen and the presumably zealous law enforcement officer so that there might be an objective determination of probable cause. But this purpose is not served by the newfangled inspection warrant. As the Court acknowledges, the inspector's "entitlement to inspect will not depend on his demonstrating probable cause to believe that conditions in violation of OSHA exist on the premises. . . . For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based . . . on a showing that `reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular [establishment].'" Ante, at 320. To obtain a warrant, the inspector need only show that "a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived *332 from neutral sources . . . ." Ante, at 321. Thus, the only question for the magistrate's consideration is whether the contemplated inspection deviates from an inspection schedule drawn up by higher level agency officials.
Unlike the traditional warrant, the inspection warrant provides no protection against the search itself for employers who the Government has no reason to suspect are violating OSHA regulations. The Court plainly accepts the proposition that random health and safety inspections are reasonable. It does not question Congress' determination that the public interest in workplaces free from health and safety hazards outweighs the employer's desire to conduct his business only in the presence of permittees, except in those rare instances when the Government has probable cause to suspect that the premises harbor a violation of the law.
What purposes, then, are served by the administrative warrant procedure? The inspection warrant purports to serve three functions: to inform the employer that the inspection is authorized by the statute, to advise him of the lawful limits of the inspection, and to assure him that the person demanding entry is an authorized inspector. Camara v. Municipal Court, 387 U. S. 523, 532. An examination of these functions in the OSHA context reveals that the inspection warrant adds little to the protections already afforded by the statute and pertinent regulations, and the slight additional benefit it might provide is insufficient to identify a constitutional violation or to justify overriding Congress' judgment that the power to conduct warrantless inspections is essential.
The inspection warrant is supposed to assure the employer that the inspection is in fact routine, and that the inspector has not improperly departed from the program of representative inspections established by responsible officials. But to the extent that harassment inspections would be reduced by the necessity of obtaining a warrant, the Secretary's present enforcement scheme would have precisely the same effect. *333 The representative inspections are conducted "`in accordance with criteria based upon accident experience and the number of employees exposed in particular industries.'" Ante, at 321 n. 17. If, under the present scheme, entry to covered premises is denied, the inspector can gain entry only by informing his administrative superiors of the refusal and seeking a court order requiring the employer to submit to the inspection. The inspector who would like to conduct a nonroutine search is just as likely to be deterred by the prospect of informing his superiors of his intention and of making false representations to the court when he seeks compulsory process as by the prospect of having to make bad-faith representations in an ex parte warrant proceeding.
The other two asserted purposes of the administrative warrant are also adequately achieved under the existing scheme. If the employer has doubts about the official status of the inspector, he is given adequate opportunity to reassure himself in this regard before permitting entry. The OSHA inspector's statutory right to enter the premises is conditioned upon the presentation of appropriate credentials. 29 U. S. C. § 657 (a) (1). These credentials state the inspector's name, identify him as an OSHA compliance officer, and contain his photograph and signature. If the employer still has doubts, he may make a toll-free call to verify the inspector's authority, Usery v. Godfrey Brake & Supply Service, Inc., 545 F. 2d 52, 54 (CA8 1976), or simply deny entry and await the presentation of a court order.
The warrant is not needed to inform the employer of the lawful limits of an OSHA inspection. The statute expressly provides that the inspector may enter all areas in a covered business "where work is performed by an employee of an employer," 29 U. S. C. § 657 (a) (1), "to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner. . . all pertinent conditions, structures, machines, apparatus, *334 devices, equipment, and materials therein . . . ." 29 U. S. C. § 657 (a)(2). See also 29 CFR § 1903 (1977). While it is true that the inspection power granted by Congress is broad, the warrant procedure required by the Court does not purport to restrict this power but simply to ensure that the employer is apprised of its scope. Since both the statute and the pertinent regulations perform this informational function, a warrant is superfluous.
Requiring the inspection warrant, therefore, adds little in the way of protection to that already provided under the existing enforcement scheme. In these circumstances, the warrant is essentially a formality. In view of the obviously enormous cost of enforcing a health and safety scheme of the dimensions of OSHA, this Court should not, in the guise of construing the Fourth Amendment, require formalities which merely place an additional strain on already overtaxed federal resources.
Congress, like this Court, has an obligation to obey the mandate of the Fourth Amendment. In the past the Court "has been particularly sensitive to the Amendment's broad standard of `reasonableness' where . . . authorizing statutes permitted the challenged searches." Almeida-Sanchez v. United States, 413 U. S. 266, 290 (WHITE, J., dissenting). In United States v. Martinez-Fuerte, 428 U. S. 543, for example, respondents challenged the routine stopping of vehicles to check for aliens at permanent checkpoints located away from the border. The checkpoints were established pursuant to statutory authority and their location and operation were governed by administrative criteria. The Court rejected respondents' argument that the constitutional reasonableness of the location and operation of the fixed checkpoints should be reviewed in a Camara warrant proceeding. The Court observed that the reassuring purposes of the inspection warrant were adequately served by the visible manifestations of authority exhibited at the fixed checkpoints.
*335 Moreover, although the location and method of operation of the fixed checkpoints were deemed critical to the constitutional reasonableness of the challenged stops, the Court did not require Border Patrol officials to obtain a warrant based on a showing that the checkpoints were located and operated in accordance with administrative standards. Indeed, the Court observed that "[t]he choice of checkpoint locations must be left largely to the discretion of Border Patrol officials, to be exercised in accordance with statutes and regulations that may be applicable . . . [and] [m]any incidents of checkpoint operation also must be committed to the discretion of such officials." 428 U. S., at 559-560, n. 13. The Court had no difficulty assuming that those officials responsible for allocating limited enforcement resources would be "unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class." Id., at 559.
The Court's recognition of Congress' role in balancing the public interest advanced by various regulatory statutes and the private interest in being free from arbitrary governmental intrusion has not been limited to situations in which, for example, Congress is exercising its special power to exclude aliens. Until today, we have not rejected a congressional judgment concerning the reasonableness of a category of regulatory inspections of commercial premises.[7] While businesses are unquestionably entitled to Fourth Amendment protection, we have "recognized that a business, by its special nature and voluntary existence, may open itself to intrusions that would not be permissible in a purely private context." *336 G. M. Leasing Corp. v. United States, 429 U. S. 338, 353. Thus, in Colonnade Catering Corp. v. United States, 397 U. S. 72, the Court recognized the reasonableness of a statutory authorization to inspect the premises of a caterer dealing in alcoholic beverages, noting that "Congress has broad power to design such powers of inspection under the liquor laws as it deems necessary to meet the evils at hand." Id., at 76. And in United States v. Biswell, 406 U. S. 311, the Court sustained the authority to conduct warrantless searches of firearm dealers under the Gun Control Act of 1968 primarily on the basis of the reasonableness of the congressional evaluation of the interests at stake.[8]
The Court, however, concludes that the deference accorded Congress in Biswell and Colonnade should be limited to situations where the evils addressed by the regulatory statute are peculiar to a specific industry and that industry is one which has long been subject to Government regulation. The Court reasons that only in those situations can it be said that a person who engages in business will be aware of and consent to routine, regulatory inspections. I cannot agree that the respect due the congressional judgment should be so narrowly confined.
In the first place, the longevity of a regulatory program does not, in my judgment, have any bearing on the reasonableness of routine inspections necessary to achieve adequate enforcement of that program. Congress' conception of what constitute *337 urgent federal interests need not remain static. The recent vintage of public and congressional awareness of the dangers posed by health and safety hazards in the workplace is not a basis for according less respect to the considered judgment of Congress. Indeed, in Biswell, the Court upheld an inspection program authorized by a regulatory statute enacted in 1968. The Court there noted that "[f]ederal regulation of the interstate traffic in firearms is not as deeply rooted in history as is governmental control of the liquor industry, but close scrutiny of this traffic is undeniably" an urgent federal interest. 406 U. S., at 315. Thus, the critical fact is the congressional determination that federal regulation would further significant public interests, not the date that determination was made.
In the second place, I see no basis for the Court's conclusion that a congressional determination that a category of regulatory inspections is reasonable need only be respected when Congress is legislating on an industry-by-industry basis. The pertinent inquiry is not whether the inspection program is authorized by a regulatory statute directed at a single industry, but whether Congress has limited the exercise of the inspection power to those commercial premises where the evils at which the statute is directed are to be found. Thus, in Biswell, if Congress had authorized inspections of all commercial premises as a means of restricting the illegal traffic in firearms, the Court would have found the inspection program unreasonable; the power to inspect was upheld because it was tailored to the subject matter of Congress' proper exercise of regulatory power. Similarly, OSHA is directed at health and safety hazards in the workplace, and the inspection power granted the Secretary extends only to those areas where such hazards are likely to be found.
Finally, the Court would distinguish the respect accorded Congress' judgment in Colonnade and Biswell on the ground that businesses engaged in the liquor and firearms industry "`accept the burdens as well as the benefits of their trade...." *338 Ante, at 313. In the Court's view, such businesses consent to the restrictions placed upon them, while it would be fiction to conclude that a businessman subject to OSHA consented to routine safety inspections. In fact, however, consent is fictional in both contexts. Here, as well as in Biswell, businesses are required to be aware of and comply with regulations governing their business activities. In both situations, the validity of the regulations depends not upon the consent of those regulated, but on the existence of a federal statute embodying a congressional determination that the public interest in the health of the Nation's work force or the limitation of illegal firearms traffic outweighs the businessman's interest in preventing a Government inspector from viewing those areas of his premises which relate to the subject matter of the regulation.
The case before us involves an attempt to conduct a warrantless search of the working area of an electrical and plumbing contractor. The statute authorizes such an inspection during reasonable hours. The inspection is limited to those areas over which Congress has exercised its proper legislative authority.[9] The area is also one to which employees *339 have regular access without any suggestion that the work performed or the equipment used has any special claim to confidentiality.[10] Congress has determined that industrial safety is an urgent federal interest requiring regulation and supervision, and further, that warrantless inspections are necessary to accomplish the safety goals of the legislation. While one may question the wisdom of pervasive governmental oversight of industrial life, I decline to question Congress' judgment that the inspection power is a necessary enforcement device in achieving the goals of a valid exercise of regulatory power.[11]
I respectfully dissent.
NOTES
[*] Warren Spannaus, Attorney General of Minnesota, Richard B. Allyn, Solicitor General, and Steven M. Gunn and Richard A. Lockridge, Special Assistant Attorneys General, filed a brief for 11 States as amici curiae urging reversal, joined by the Attorneys General for their respective States as follows: Frank J. Kelley of Michigan, William F. Hyland of New Jerssey, Toney Anaya of New Mexico, Rufus Edmisten of North Carolina, Robert P. Kane of Pennsylvania, Daniel R. McLeod of South Carolina, M. Jerome Diamond of Vermont, Anthony F. Troy of Virginia, and V. Frank Mendicino of Wyoming. Briefs of amici curiae urging reversal were filed by J. Albert Woll and Laurence Gold for the American Federation of Labor and Congress of Industrial Organizations; and by Michael R. Sherwood for the Sierra Club et al.
Briefs of amici curiae urging affirmance were filed by Wayne L. Kidwell, Attorney General of Idaho, and Guy G. Hurlbutt, Chief Deputy Attorney General, Robert B. Hansen, Attorney General of Utah, and Michael L. Deamer, Deputy Attorney General, for the States of Idaho and Utah; by Allen A. Lauterbach for the American Farm Bureau Federation; by Robert T. Thompson, Lawrence Kraus, and Stanley T. Kaleczyc for the Chamber of Commerce of the United States; by Anthony J. Obadal, Steven R. Semler, Stephen C. Yohay, Leonard J. Theberge, Edward H. Dowd, and James Watt for the Mountain States Legal Foundation; by James D. McKevitt for the National Federation of Independent Business; and by Ronald A. Zumbrun, John H. Findley, Albert Ferri, Jr., and W. Hugh O'Riordan for the Pacific Legal Foundation.
Briefs of amici curiae were filed by Robert E. Rader, Jr., for the American Conservative Union; and by David Goldberger, Barbara O'Toole, McNeill Stokes, Ira J. Smotherman, Jr., and David Rudenstine for the Roger Baldwin Foundation, Inc., of the American Civil Liberties Union, Illinois Division.
[1] "In order to carry out the purposes of this chapter, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized
"(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and
"(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent, or employee." 84 Stat. 1598, 29 U. S. C. § 657 (a).
[2] This is required by the Act. See n. 1, supra.
[3] A regulation of the Secretary, 29 CFR § 1903.4 (1977), requires an inspector to seek compulsory process if an employer refuses a requested search. See infra, at 317, and n. 12.
[4] No res judicata bar arose against Mr. Barlow from the December 30, 1975, order authorizing a search, because the earlier decision reserved the constitutional issue. See 424 F. Supp. 437.
[5] H. Commager, Documents of American History 104 (8th ed. 1968).
[6] See, e. g., Dickerson, Writs of Assistance as a Cause of the Revolution in The Era of the American Revolution 40 (R. Morris ed. 1939).
[7] The Stamp Act of 1765, the Townshend Revenue Act of 1767, and the tea tax of 1773 are notable examples. See Commager, supra, n. 5, at 53, 63. For commentary, see 1 S. Morison, H. Commager, & W. Leuchtenburg, The Growth of the American Republic 143, 149, 159 (1969).
[8] The Government has asked that Mr. Barlow be ordered to show cause why he should not be held in contempt for refusing to honor the inspection order, and its position is that the OSHA inspector is now entitled to enter at once, over Mr. Barlow's objection.
[9] Cf. Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U. S. 861 (1974).
[10] The automobile-search cases cited by the Secretary are even less helpful to his position than the labor cases. The fact that automobiles occupy a special category in Fourth Amendment case law is by now beyond doubt due, among other factors, to the quick mobility of a car, the registration requirements of both the car and the driver, and the more available opportunity for plain-view observations of a car's contents. Cady v. Dombrowski, 413 U. S. 433, 441-442 (1973); see also Chambers v. Maroney, 399 U. S. 42, 48-51 (1970). Even so, probable cause has not been abandoned as a requirement for stopping and searching an automobile.
[11] We recognize that today's holding itself might have an impact on whether owners choose to resist requested searches; we can only await the development of evidence not present on this record to determine how serious an impediment to effective enforcement this might be.
[12] It is true, as the Secretary asserts, that § 8 (a) of the Act, 29 U. S. C. § 657 (a), purports to authorize inspections without warrant; but it is also true that it does not forbid the Secretary from proceeding to inspect only by warrant or other process. The Secretary has broad authority to prescribe such rules and regulations as he may deem necessary to carry out his responsibilities under this chapter, "including rules and regulations dealing with the inspection of an employer's establishment." § 8 (g) (2), 29 U. S. C. § 657 (g) (2). The regulations with respect to inspections are contained in 29 CFR Part 1903 (1977). Section 1903.4, referred to in the text, provides as follows:
"Upon a refusal to permit a Compliance Safety and Health Officer, in the exercise of his official duties, to enter without delay and at reasonable times any place of employment or any place therein, to inspect, to review records, or to question any employer, owner, operator, agent, or employee, in accordance with § 1903.3, or to permit a representative of employees to accompany the Compliance Safety and Health Officer during the physical inspection of any workplace in accordance with § 1903.8, the Compliance Safety and Health Officer shall terminate the inspection or confine the inspection to other areas, conditions, structures, machines, apparatus, devices, equipment, materials, records, or interviews concerning which no objection is raised. The Compliance Safety and Health Officer shall endeavor to ascertain the reason for such refusal, and he shall immediately report the refusal and the reason therefor to the Area Director. The Area Director shall immediately consult with the Assistant Regional Director and the Regional Solicitor, who shall promptly take appropriate action, including compulsory process, if necessary."
When his representative was refused admission by Mr. Barlow, the Secretary proceeded in federal court to enforce his right to enter and inspect, as conferred by 29 U. S. C. § 657.
[13] A change in the language of the Compliance Operations Manual for OSHA inspectors supports the inference that, whatever the Act's administrators might have thought at the start, it was eventually concluded that enforcement efficiency would not be jeopardized by permitting employers to refuse entry, at least until the inspector obtained compulsory process. The 1972 Manual included a section specifically directed to obtaining "warrants," and one provision of that section dealt with ex parte warrants:
"In cases where a refusal of entry is to be expected from the past performance of the employer, or where the employer has given some indication prior to the commencement of the investigation of his intention to bar entry or limit or interfere with the investigation, a warrant should be obtained before the inspection is attempted. Cases of this nature should also be referred through the Area Director to the appropriate Regional Solicitor and the Regional Administrator alerted." Dept. of Labor, OSHA Compliance Operations Manual V-7 (Jan. 1972).
The latest available manual, incorporating changes as of November 1977, deletes this provision, leaving only the details for obtaining "compulsory process" after an employer has refused entry. Dept. of Labor, OSHA Field Operations Manual, Vol. V, pp. V-4-V-5. In its present form, the Secretary's regulation appears to permit establishment owners to insist on "process"; and hence their refusal to permit entry would fall short of criminal conduct within the meaning of 18 U. S. C. §§ 111 and 1114 (1976 ed.), which make it a crime forcibly to impede, intimidate, or interfere with federal officials, including OSHA inspectors, while engaged in or on account of the performance of their official duties.
[14] The proceeding was instituted by filing an "Application for Affirmative Order to Grant Entry and for an Order to show cause why such affirmative order should not issue." The District Court issued the order to show cause, the matter was argued, and an order then issued authorizing the inspection and enjoining interference by Barlow's. The following is the order issued by the District Court:
"IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the United States of America, United States Department of Labor, Occupational Safety and Health Administration, through its duly designated representative or representatives, are entitled to entry upon the premises known as Barlow's Inc., 225 West Pine, Pocatello, Idaho, and may go upon said business premises to conduct an inspection and investigation as provided for in Section 8 of the Occupational Safety and Health Act of 1970 (29 U. S. C. 651, et seq.), as part of an inspection program designed to assure compliance with that Act; that the inspection and investigation shall be conducted during regular working hours or at other reasonable times, within reasonable limits and in a reasonable manner, all as set forth in the regulations pertaining to such inspections promulgated by the Secretary of Labor, at 29 C. F. R., Part 1903; that appropriate credentials as representatives of the Occupational Safety and Health Administration, United States Department of Labor, shall be presented to the Barlow's Inc. representative upon said premises and the inspection and investigation shall be commenced as soon as practicable after the issuance of this Order and shall be completed within reasonable promptness; that the inspection and investigation shall extend to the establishment or other area, workplace, or environment where work is performed by employees of the employer, Barlow's Inc., and to all pertinent conditions, structures, machines, apparatus, devices, equipment, materials, and all other things therein (including but not limited to records, files, papers, processes, controls, and facilities) bearing upon whether Barlow's Inc. is furnishing to its employees employment and a place of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees, and whether Barlow's Inc. is complying with the Occupational Safety and Health Standards promulgated under the Occupational Safety and Health Act and the rules, regulations, and orders issued pursuant to that Act; that representatives of the Occupational Safety and Health Administration may, at the option of Barlow's Inc., be accompanied by one or more employees of Barlow's Inc., pursuant to Section 8 (e) of that Act; that Barlow's Inc., its agents, representatives, officers, and employees are hereby enjoined and restrained from in anyway whatsoever interfering with the inspection and investigation authorized by this Order and, further, Barlow's Inc. is hereby ordered and directed to, within five working days from the date of this Order, furnish a copy of this Order to its officers and managers, and, in addition, to post a copy of this Order at its employee's bulletin board located upon the business premises; and Barlow's Inc. is hereby ordered and directed to comply in all respects with this order and allow the inspection and investigation to take place without delay and forthwith."
[15] Insofar as the Secretary's statutory authority is concerned, a regulation expressly providing that the Secretary could proceed ex parte to seek a warrant or its equivalent would appear to be as much within the Secretary's power as the regulation currently in force and calling for "compulsory process."
[16] Section 8 (f) (1), 29 U. S. C. § 657 (f) (1), provides that employees or their representatives may give written notice to the Secretary of what they believe to be violations of safety or health standards and may request an inspection. If the Secretary then determines that "there are reasonable grounds to believe that such violation or danger exists, he shall make a special inspection in accordance with the provisions of this section as soon as practicable." The statute thus purports to authorize a warrantless inspection in these circumstances.
[17] The Secretary, Brief for Petitioner 9 n. 7, states that the Barlow inspection was not based on an employee complaint but was a "general schedule" investigation. "Such general inspections," he explains, "now called Regional Programmed Inspections, are carried out in accordance with criteria based upon accident experience and the number of employees exposed in particular industries. U. S. Department of Labor, Occupational Safety and Health Administration, Field Operations Manual, supra, 1 CCH Employment Safety and Health Guide ¶ 4327.2 (1976)."
[18] The Federal Metal and Nonmetallic Mine Safety Act provides: "Whenever an operator . . . refuses to permit the inspection or investigation of any mine which is subject to this chapter . . . a civil action for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order, may be instituted by the Secretary in the district court of the United States for the district . . . ." 30 U. S. C. § 733 (a). "The Secretary may institute a civil action for relief, including a permanent or temporary injunction, restraining order, or any other appropriate order in the district court . . . whenever such operator or his agent . . . refuses to permit the inspection of the mine . . . . Each court shall have jurisdiction to provide such relief as may be appropriate." 30 U. S. C. § 818. Another example is the Clean Air Act, which grants federal district courts jurisdiction "to require compliance" with the Administrator of the Environmental Protection Agency's attempt to inspect under 42 U. S. C. § 7414 (1976 ed., Supp. I), when the Administrator has commenced "a civil action" for injunctive relief or to recover a penalty. 42 U. S. C. § 7413 (b) (4) (1976 ed., Supp. I).
[19] Exemplary language is contained in the Animal Welfare Act of 1970 which provides for inspections by the Secretary of Agriculture; federal district courts are vested with jurisdiction "specifically to enforce, and to prevent and restrain violations of this chapter, and shall have jurisdiction in all other kinds of cases arising under this chapter." 7 U. S. C. § 2146 (c) (1976 ed.). Similar provisions are included in other agricultural inspection Acts; see, e. g., 21 U. S. C. § 674 (meat product inspection); 21 U. S. C. § 1050 (egg product inspection). The Internal Revenue Code, whose excise tax provisions requiring inspections of businesses are cited by the Secretary, provides: "The district courts . . . shall have such jurisdiction to make and issue in civil actions, writs and orders of injunction. . . and such other orders and processes, and to render such . . . decrees as may be necessary or appropriate for the enforcement of the internal revenue laws." 26 U. S. C. § 7402 (a). For gasoline inspections, federal district courts are granted jurisdiction to restrain violations and enforce standards (one of which, 49 U. S. C. § 1677, requires gas transporters to permit entry or inspection). The owner is to be afforded the opportunity for notice and response in most cases, but "failure to give such notice and afford such opportunity shall not preclude the granting of appropriate relief [by the district court]." 49 U. S. C. § 1679 (a).
[20] The application for the inspection order filed by the Secretary in this case represented that "the desired inspection and investigation are contemplated as a part of an inspection program designed to assure compliance with the Act and are authorized by Section 8 (a) of the Act." The program was not described, however, or any facts presented that would indicate why an inspection of Barlow's establishment was within the program. The order that issued concluded generally that the inspection authorized was "part of an inspection program designed to assure compliance with the Act."
[21] Section 8 (a) of the Act, as set forth in 29 U. S. C. § 657 (a), provides that "[i]n order to carry out the purposes of this chapter" the Secretary may enter any establishment, area, work place or environment "where work is performed by an employee of an employer" and "inspect and investigate" any such place of employment and all "pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and . . . question privately any such employer, owner, operator, agent, or employee." Inspections are to be carried out "during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner." The Secretary's regulations echo the statutory language in these respects. 29 CFR § 1903.3 (1977). They also provide that inspectors are to explain the nature and purpose of the inspection and to "indicate generally the scope of the inspection." 29 CFR § 1903.7 (a) (1977). Environmental samples and photographs are authorized, 29 CFR § 1903.7 (b) (1977), and inspections are to be performed so as "to preclude unreasonable disruption of the operations of the employer's establishment." 29 CFR § 1903.7 (d) (1977). The order that issued in this case reflected much of the foregoing statutory and regulatory langnage.
[22] Delineating the scope of a search with some care is particularly important where documents are involved. Section 8 (c) of the Act, 29 U. S. C. § 657 (c), provides that an employer must "make, keep and preserve, and make available to the Secretary [of Labor] or to the Secretary of Health, Education and Welfare" such records regarding his activities relating to OSHA as the Secretary of Labor may prescribe by regulation as necessary or appropriate for enforcement of the statute or for developing information regarding the causes and prevention of occupational accidents and illnesses. Regulations requiring employers to maintain records of and to make periodic reports on "work-related deaths, injuries and illnesses" are also contemplated, as are rules requiring accurate records of employee exposures to potential toxic materials and harmful physical agents.
In describing the scope of the warrantless inspection authorized by the statute, § 8 (a) does not expressly include any records among those items or things that may be examined, and § 8 (c) merely provides that the employer is to "make available" his pertinent records and to make periodic reports.
The Secretary's regulation, 29 CFR § 1903.3 (1977), however, expressly includes among the inspector's powers the authority "to review records required by the Act and regulations published in this chapter, and other records which are directly related to the purpose of the inspection." Further, § 1903.7 requires inspectors to indicate generally "the records specified in § 1903.3 which they wish to review" but "such designations of records shall not preclude access to additional records specified in § 1903.3." It is the Secretary's position, which we reject, that an inspection of documents of this scope may be effected without a warrant.
The order that issued in this case included among the objects and things to be inspected "all other things therein (including but not limited to records, files, papers, processes, controls and facilities) bearing upon whether Barlow's, Inc. is furnishing to its employees employment and a place of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees, and whether Barlow's, Inc. is complying with . . ." the OSHA regulations.
[23] The injunction entered by the District Court, however, should not be understood to forbid the Secretary from exercising the inspection authority conferred by § 8 pursuant to regulations and judicial process that satisfy the Fourth Amendment. The District Court did not address the issue whether the order for inspection that was issued in this case was the functional equivalent of a warrant, and the Secretary has limited his submission in this case to the constitutionality of a warrantless search of the Barlow establishment authorized by § 8 (a). He has expressly declined to rely on 29 CFR § 1903.4 (1977) and upon the order obtained in this case. Tr. of Oral Arg. 19. Of course, if the process obtained here, or obtained in other cases under revised regulations, would satisfy the Fourth Amendment, there would be no occasion for enjoining the inspections authorized by § 8 (a).
[1] "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ."
[2] "[A]nd no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
[3] J. Landynski, Search and Seizure and the Supreme Court 19 (1966).
[4] T. Taylor, Two Studies in Constitutional Interpretation 41 (1969).
[5] See v. Seattle, 387 U. S. 541, 547 (Clark, J., dissenting).
[6] When it passed OSHA, Congress was cognizant of the fact that in light of the enormity of the enforcement task "the number of inspections which it would be desirable to have made will undoubtedly for an unforeseeable period, exceed the capacity of the inspection force . . . ." Senate Committee on Labor and Public Welfare, Legislative History of the Occupational Safety and Health Act of 1970, 92d Cong., 1st Sess., 152 (Comm. Print 1971).
[7] The Court's rejection of a legislative judgment regarding the reasonableness of the OSHA inspection program is especially puzzling in light of recent decisions finding law enforcement practices constitutionally reasonable, even though those practices involved significantly more individual discretion than the OSHA program. See, e. g., Terry v. Ohio, 392 U. S. 1; Adams v. Williams, 407 U. S. 143; Cady v. Dombrowski, 413 U. S. 433; South Dakota v. Opperman, 428 U. S. 364.
[8] The Court held:
"In the context of a regulatory inspection system of business premises that is carefully limited in time, place, and scope, the legality of the search depends . . . on the authority of a valid statute.
. . . . .
"We have little difficulty in concluding that where, as here, regulatory inspections further urgent federal interest, and the possibilities of abuse and the threat to privacy are not of impressive dimensions, the inspection may proceed without a warrant where specifically authorized by statute." 406 U. S., at 315, 317.
[9] What the Court actually decided in Camara v. Municipal Court, 387 U. S. 523, and See v. Seattle, 387 U. S. 541, does not require the result it reaches today. Camara involved a residence, rather than a business establishment; although the Fourth Amendment extends its protection to commercial buildings, the central importance of protecting residential privacy is manifest. The building involved in See was, of course, a commercial establishment, but a holding that a locked warehouse may not be entered pursuant to a general authorization to "enter all buildings and premises, except the interior of dwellings, as often as may be necessary," 387 U. S., at 541, need not be extended to cover more carefully delineated grants of authority. My view that the See holding should be narrowly confined is influenced by my favorable opinion of the dissent written by Mr. Justice Clark and joined by Justices Harlan and STEWART. As Colonnade and Biswell demonstrate, however, the doctrine of stare decisis does not compel the Court to extend those cases to govern today's holding.
[10] The Act and pertinent regulation provide protection for any trade secrets of the employer. 29 U. S. C. §§ 664-665; 29 CFR § 1903.9 (1977).
[11] The decision today renders presumptively invalid numerous inspection provisions in federal regulatory statutes. E. g., 30 U. S. C. § 813 (Federal Coal Mine Health and Safety Act of 1969); 30 U. S. C. §§ 723, 724 (Federal Metal and Nonmetallic Mine Safety Act); 21 U. S. C. § 603 (inspection of meat and food products). That some of these provisions apply only to a single industry, as noted above, does not alter this fact. And the fact that some "envision resort to federal-court enforcement when entry is refused" is also irrelevant since the OSHA inspection program invalidated here requires compulsory process when a compliance inspector has been denied entry. Ante, at 321.
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Opinions of the Colorado Supreme Court are available to the
public and can be accessed through the Judicial Branch’s homepage at
http://www.courts.state.co.us. Opinions are also posted on the
Colorado Bar Association’s homepage at http://www.cobar.org.
ADVANCE SHEET HEADNOTE
June 10, 2019
2019 CO 49
No. 17SC708, Ruybalid v. Bd. of Cty. Comm’rs—Statutory Interpretation—District
Attorney—Attorney’s Fees.
Francis Ruybalid committed numerous ethical violations arising out of cases that
he either prosecuted or supervised while he was the District Attorney for the Third
Judicial District. He argues that he is entitled to the attorney’s fees and costs he
incurred while defending these allegations.
We conclude that because Ruybalid’s ethical violations were at times committed
recklessly or knowingly, his attorney’s fees and costs were not necessarily incurred in
the discharge of his official duties. We therefore hold that Ruybalid is not entitled to
reimbursement for the attorney’s fees and costs that he incurred in defending the
alleged ethical violations.
Accordingly, the court of appeals’ judgment is affirmed on different grounds.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2019 CO 49
Supreme Court Case No. 17SC708
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 16CA1473
Petitioner:
Francisco “Frank” Ruybalid IV,
v.
Respondents:
Board of County Commissioners of the County of Las Animas County, Colorado;
Anthony Abeyta, member of the Las Animas Board of County Commissioners; Gary D.
Hill, member of the Las Animas Board of County Commissioners; Mack Louden,
member of the Las Animas Board of County Commissioners; Board of County
Commissioners of the County of Huerfano County, Colorado; Gerald Cisneros, member
of the Huerfano Board of County Commissioners; Ray Garcia, member of the Huerfano
Board of County Commissioners; and Max Vezanni, member of the Huerfano Board of
County Commissioners.
Judgment Affirmed
en banc
June 10, 2019
Attorneys for Petitioner:
Francisco E. Ruybalid
Trinidad, Colorado
Limited Appearance by Steven Lawrence Jensen
Golden, Colorado
Attorneys for Respondents Board of County Commissioners of the County of
Huerfano, Gerald Cisneros, Ray Garcia, and Max Vezanni:
Garrett Sheldon
Walsenburg, Colorado
Attorneys for Respondents Board of County Commissioners of the County of Las
Animas, Anthony Abeyta, Gary D. Hill, and Mack Louden:
Newnam Land LLP
Mary D. Newnam
Wimberley, Texas
JUSTICE BOATRIGHT delivered the Opinion of the Court.
2
¶1 Francisco Ruybalid was accused of numerous ethical violations arising out of
cases that he either prosecuted or supervised while he was the District Attorney for the
Third Judicial District of Colorado. Ultimately, Ruybalid admitted to 26 violations in
exchange for another 138 alleged violations being dismissed. As a result of initially
contesting the allegations of misconduct, Ruybalid incurred substantial attorney’s fees
and costs during the disciplinary proceeding. The counties of the Third Judicial District
refused to reimburse Ruybalid for these expenses. We must now determine whether
the counties are obligated to reimburse Ruybalid for these attorney’s fees and costs
under section 20-1-303, C.R.S. (2018), which directs a county to reimburse a district
attorney for “expenses necessarily incurred in the discharge of his official duties for the
benefit of [the] county.”1
¶2 We conclude that because Ruybalid’s ethical violations were at times committed
recklessly or knowingly, his attorney’s fees and costs were not necessarily incurred in
the discharge of his official duties. Hence, we hold that Ruybalid is not entitled to
1 We granted certiorari to review the following issues:
1. Whether the court of appeals erred in upholding the trial court’s
dismissal of the case for failure to state a claim, based on its conclusion
that Ruybalid did not plead facts sufficient to show that the expenses
were incurred in his official duties and for the benefit of the counties.
2. Whether the court of appeals erred in holding that the “expenses” for
which a district attorney is entitled to reimbursement by the counties
of his district, according to section 20-1-303, C.R.S. (2017), cannot
include attorney’s fees and litigation costs, regardless of the nature of
the litigation against which the district attorney must defend.
3
reimbursement for the attorney’s fees and costs that he incurred in defending the
disciplinary proceeding against him, and therefore he failed to state a claim for relief in
his original complaint. As a result, we affirm the court of appeals’ decision on different
grounds.
I. Facts and Procedural History
¶3 Ruybalid served as District Attorney for the Third Judicial District of Colorado,
which comprises Las Animas and Huerfano Counties (the Counties). During
Ruybalid’s term as district attorney, the Office of Attorney Regulation Counsel filed two
disciplinary complaints against him that alleged over 150 ethical violations related to
his failure to provide discovery in cases that he either prosecuted or supervised.
During the ensuing disciplinary proceeding, the Counties refused to assume the cost for
Ruybalid’s defense;2 as a result, Ruybalid hired private counsel.3 The disciplinary
proceeding eventually resolved when Ruybalid entered into a stipulation. In that
stipulation, Ruybalid admitted that he had failed to provide the required discovery in
eighteen cases. Ultimately, Ruybalid admitted to twenty-six ethical violations: eight
violations of Colo. RPC 1.3 (failure to act diligently and promptly in representing a
client); eight violations of Colo. RPC 8.4(d) (engaging in conduct that is prejudicial to
2 The two complaints were heard in a single disciplinary proceeding that resulted in a
single stipulation. Therefore, we refer to the complaints as the disciplinary case or the
disciplinary proceeding.
3 Prior to the initiation of the disciplinary proceeding, the Counties had obtained
insurance coverage for Ruybalid that led to a $7,000 check being issued to him.
4
the administration of justice); and ten violations of Colo. RPC 5.1(b) (failure to make
reasonable efforts to ensure that subordinate lawyers conform to the Rules of
Professional Conduct). In return, 138 alleged ethical violations were dismissed. For
purposes of determining the appropriate sanction, Ruybalid stipulated that his mental
state varied during each ethical violation from negligent, to reckless, to knowing. As a
result of the stipulation, Ruybalid agreed to pay over $23,000 in costs incurred in the
disciplinary proceeding; he was then suspended from practicing law for six months,
which was stayed pending his successful completion of a twenty-three-month
probation period. In addition to the $23,000 in costs, Ruybalid claims to have accrued
over $200,000 in attorney’s fees.
¶4 After resolving the disciplinary case, Ruybalid filed a complaint in district court
for a declaratory judgment and attached a copy of the stipulation from the disciplinary
proceeding. In the complaint, Ruybalid asserted that the Counties were obligated to
reimburse him for the attorney’s fees and costs that he incurred during the disciplinary
proceeding as well as the costs that he would incur in complying with the terms of his
probation. Ruybalid argued that the fees and costs from the disciplinary proceeding
were “expenses necessarily incurred in the discharge of his official duties for the benefit
of” the Counties under “the DA Expense Statute”—section 20-1-303. Ruybalid pointed
to two other sources of potential authority to support his argument that the Counties
were obligated to reimburse him: section 24-10-110, C.R.S. (2018), of the Colorado
Government Immunity Act (CGIA) and Colorado Counties Casualty & Property Pool v.
Board of County Commissioners, 51 P.3d 1100 (Colo. App. 2002) (holding that a district
5
attorney was entitled to attorney’s fees incurred while defending against a wrongful
discharge lawsuit).4 The Counties moved to dismiss the complaint for failure to state a
claim under C.R.C.P. 12(b)(5).
¶5 The district court granted the motion to dismiss. It first found that Ruybalid’s
actions were disallowed by ethical canons. For this reason, the court concluded that his
conduct did not constitute performance of the official duties of a district attorney, and
thus was not covered by the DA Expense Statute. Additionally, the district court found
that section 24-10-110 of the CGIA did not cover Ruybalid’s attorney’s fees because
there was no injury sustained by a third party—a requirement under the CGIA. Finally,
the court concluded that Colorado Counties was distinguishable because Ruybalid’s
cause of action pertained to defending a claim of an ethical violation, whereas Colorado
Counties pertained to defending against a tort claim.
¶6 The court of appeals affirmed on different grounds. It began its analysis by
applying the American Rule, which provides that absent statutory authority to the
contrary each party is presumed responsible for its own litigation fees and costs.
Ruybalid v. Bd. of Cty. Comm’rs, 2017 COA 113, ¶ 8, __ P.3d __ (citing Buckhannon Bd. &
Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 602–03 (2001);
4 Ruybalid also argued that even if he had no statutory right to attorney’s fees and costs,
he was entitled to such under theories of equitable and promissory estoppel. The
district court and the court of appeals each found that Ruybalid did not have an
equitable claim to attorney’s fees and costs, and we did not grant certiorari on that
issue.
6
Bernhard v. Farmers Ins. Exch., 915 P.2d 1285, 1287 (Colo. 1996)). Because the DA
Expense Statute did not overcome the American Rule’s presumption, the court of
appeals concluded that the statute could not be read to cover Ruybalid’s attorney’s fees
and costs. Id. at ¶¶ 11–13.
¶7 The court of appeals also differed from the district court in its handling of section
24-10-110 of the CGIA and Colorado Counties. The court of appeals refrained from
applying Colorado Counties because it “did not agree with [the case].” Id. at ¶ 17. And it
concluded that there was “no analytical basis to import the CGIA into [the DA Expense
Statute].” Id.
¶8 We granted certiorari.
II. Standard of Review
¶9 We review questions of law de novo. Lucero v. People, 2012 CO 7, ¶ 19, 272 P.3d
1063, 1065. Whether a statute mandates an award of costs or attorney’s fees is a
question of statutory interpretation that we also review de novo. Crandall v. City of
Denver, 238 P.3d 659, 661 (Colo. 2010).
III. Analysis
¶10 We begin by concluding that the American Rule is inapplicable to Ruybalid’s
case. Next, we examine the elements of the DA Expense Statute and conclude that
because Ruybalid’s ethical violations were at times committed recklessly or knowingly,
his attorney’s fees and costs were not necessarily incurred in the discharge of his official
duties. Hence, we hold that Ruybalid is not entitled to reimbursement for the attorney’s
7
fees and costs that he incurred in defending the disciplinary proceeding against him,
and therefore he failed to state a claim for relief in his complaint.
A. The American Rule Is Not Applicable
¶11 As noted, the court of appeals relied on the American Rule—the presumption
that parties pay their own legal fees and costs absent explicit statutory authority
otherwise—to affirm the trial court’s dismissal of Ruybalid’s complaint. Ruybalid, ¶ 8.
In Colorado, the American Rule has typically applied in cases involving a request for
the losing party to pay the attorney’s fees of the prevailing party. See id. That is not the
case here. Rather, Ruybalid is asking for a nonparty to reimburse him for attorney’s
fees and costs incurred during his disciplinary hearing. We decline to extend the
American Rule to this circumstance. Therefore, we conclude that the American Rule is
inapplicable in this context.
B. The DA Expense Statute
¶12 The DA Expense Statute, section 20-1-303, allows for district attorneys to collect
and receive funds from the counties in their district for expenses necessarily incurred in
the discharge of their duties:
Except as otherwise specifically provided, the district attorney of each
judicial district in the state of Colorado, and each of his assistants and
deputies, shall be allowed to collect and receive from each of the counties
in his district the expenses necessarily incurred in the discharge of his
official duties for the benefit of such county.
¶13 Broken down, the DA Expense Statute contains three elements that must be met
before the counties that constitute a district must reimburse its district attorney:
(1) there must be fees, (2) that were necessarily incurred in the discharge of the district
8
attorney’s official duties, and (3) for the benefit of the county. See § 20-1-303. Because
this case arises out of a C.R.C.P. 12(b)(5) motion, we accept Ruybalid’s assertion that he
incurred fees for legal services. We therefore turn to the second element: whether
Ruybalid’s fees were necessarily incurred in the discharge of his official duties.
¶14 Ruybalid argues that this element is satisfied because all of the actions that gave
rise to the allegations in the disciplinary proceeding occurred during the course of cases
he either prosecuted or supervised as District Attorney. No one disputes that the
conduct subject to the disciplinary action occurred when Ruybalid was the elected
District Attorney for the Third Judicial District, but that is not the end of the inquiry.
The question remains whether those violations were necessarily incurred in the discharge
of his official duties. We now turn to this question.
¶15 To begin, a district attorney is responsible for enforcing the law, see People v. Dist.
Court, 632 P.2d 1022, 1023 (Colo. 1981) (citing Singer v. United States, 380 U.S. 24, 37
(1965)), and is charged with acting as a zealous advocate and an administrator of justice,
Criminal Justice Standards for the Prosecution Function, Standard 3-1.2(a) (Am. Bar
Ass’n 2018). In this capacity, a district attorney owes a duty to appear on behalf of the
state and any counties in his or her judicial district. § 20-1-102, C.R.S. (2018). But the
duties of a district attorney do not just require appearing in court; rather, a district
attorney must do justice. See Criminal Justice Standards for the Prosecution Function,
Standard 3-1.2(b) (explaining that a prosecutor has a duty “to protect the innocent and
convict the guilty”). Inherent in the pursuit of justice is the obligation to comply with
the Rules of Professional Conduct. See People ex. rel. N.R., 139 P.3d 671, 678 (Colo. 2006)
9
(Bender, J., concurring in part and dissenting in part) (explaining that district attorneys
owe an ethical duty to the judicial process, which includes a duty to comply with the
Rules of Professional Conduct). Additionally, the district attorney must comply with
the Rules of Criminal Procedure. These rules impose an obligation on the district
attorney to provide discovery to the defense in accordance with Crim. P. 16. See People
v. Millitello, 705 P.2d 514, 518–19 (Colo. 1985) (explaining that adherence to Crim. P. 16
“is grounded in the constitutional requirements of due process”).
¶16 Significantly, Ruybalid’s ethical violations arose out of discovery violations and
resulted in fifteen cases being dismissed.5 In other words, Ruybalid’s conduct was so
deficient that the court found that suppression of evidence or dismissal was the
appropriate sanction.6 That is remarkable, because a trial court is required to impose
the least severe sanctions that will assure compliance with discovery orders. People v.
Lee, 18 P.3d 192, 196–97 (Colo. 2001). Under this rationale, the exclusion of evidence or
the dismissal of a case is appropriate when there is willful misconduct or a pattern of
neglect by the prosecutor. See id. The fifteen cases being dismissed as sanctions is
consistent with Ruybalid’s stipulation that many of his ethical violations were
committed recklessly or knowingly. We conclude that costs that arise from recklessly or
5 Fourteen cases were dismissed by the prosecution due to the court’s imposition of a
sanction that suppressed evidence. One case was dismissed by the judge as a sanction
after finding a “severe” discovery violation at a pretrial conference.
6 None of the orders imposing sanctions were appealed.
10
knowingly engaging in unethical conduct cannot by any standard constitute costs that
are necessarily incurred in the discharge of a district attorney’s official duties.7
¶17 Simply put, Ruybalid was sanctioned for failing to perform his official duties in
an extraordinarily high number of cases, and he stipulated that in many of these cases
that he had done so recklessly or knowingly. Hence, we conclude that Ruybalid’s fees
and costs were not incurred in the discharge of his official duties. Because all three
elements of the DA Expense Statute must be established for a district attorney to be
entitled to reimbursement, Ruybalid is not entitled to reimbursement under the DA
Expense Statute.
¶18 Our conclusion today is fact-specific and does not mean that a district attorney
may never recover attorney’s fees and costs incurred while defending allegations of an
ethical violation. To the contrary, in many instances the costs associated with defending
allegations of an ethical violation would meet the three elements of the DA Expense
Statute, and therefore it would be the responsibility of the counties constituting a
judicial district to assume the expenses incurred by its district attorney when such an
7 This conclusion is consistent with the holding in Colorado Counties, but Colorado Counties
is not dispositive because it involved a tort claim. 51 P.3d at 1101. Colorado Counties
involved a district attorney who sought indemnification under the DA Expense Statute for
the defense and settlement expenses that he incurred while defending a wrongful
termination lawsuit brought by one of his former employees. Id. The court of appeals
held that the district attorney was entitled to indemnification. Id. at 1102. In reaching this
holding, the Colorado Counties court concluded that the DA Expense Statute extended
beyond the mere day-to-day activities of a district attorney. Id.
11
event occurs. This distinction reflects the reality that an allegation of an ethical
violation can be the byproduct of the adversarial system and is thus beyond the control
of the district attorney. In Ruybalid’s case, however, he committed ethical violations
recklessly and knowingly and, therefore, these ethical violations were completely
within his control.8
C. Ruybalid Failed to State a Claim for Relief
¶19 Ruybalid argues that because Warne v. Hall, 2016 CO 50, 373 P.3d 588, had not
been decided when he filed his complaint, the lower courts should have allowed him to
file an amended complaint that complied with Warne instead of dismissing his case. In
Warne, this court adopted the “plausible on its face” pleading standard for making a
claim under C.R.C.P. 8(a)(2) as articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), thereby mirroring the U.S. Supreme
Court’s abandonment of the previous “no set of facts” pleading standard. Warne, ¶ 12,
373 P.3d at 592. In adopting the plausibility standard in Warne, we acknowledged that
justice required that Warne be given an opportunity to amend her complaint because
she had no prior notice of the new pleading requirements. Id. at ¶ 29, 373 P.3d at 597
(citing C.R.C.P. 15(a)). Ruybalid argues that he should also be permitted to amend his
8 We recognize that Ruybalid’s stipulation expressed that his mental state during some
of the ethical violations was negligent. However, nowhere is it delineated which of the
ethical violations were committed negligently. Due to the scope and breadth of the
ethical violations in this case, we conclude that the negligent conduct mentioned in the
stipulation does not change our analysis.
12
complaint because Warne was decided over four months after he filed his complaint.
We disagree.
¶20 The justification that permitted Warne to amend her complaint is absent in
Ruybalid’s case. In Warne, we did not conclude that Warne had no legal basis for her
lawsuit. Instead, we concluded that Warne had failed to provide sufficient evidence
that the defendant “improperly” induced a party to breach a contract, an element of her
claim of intentional interference with a contract. Id. at ¶¶ 25–27, 373 P.3d at 595–96.
Here, in contrast, we are concluding that there is no legal basis for Ruybalid to recover
his attorney’s fees and costs. Thus, unlike in Warne, there is no new evidence that
Ruybalid could include in an amended complaint that would satisfy the “plausible on
its face” standard. Therefore, justice does not require that Ruybalid be permitted to file
an amended complaint.
IV. Conclusion
¶21 For the foregoing reasons, we affirm the judgment of the court of appeals.
13
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309 F.2d 150
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.CUSTOMER CONTROL, INC., Respondent.
No. 26.
No. 27.
Docket 27394.
Docket 27479.
United States Court of Appeals Second Circuit.
Argued October 10, 1962.
Decided October 25, 1962.
Marion Griffin, Atty., National Labor Relations Board, Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Rosanna A. Blake and Seymour Strongin, Attys., National Labor Relations Board, Washington, D. C., on the brief), for petitioner.
Joseph A. Byrne, Jr., of Nurnberg, Byrne & Klein, New York City (Francis X. McDermott, of Nurnberg, Byrne & Klein, New York City, on the brief), for respondent.
Before CLARK, MOORE and SMITH, Circuit Judges.
PER CURIAM.
1
In these two cases the National Labor Relations Board found that respondent had violated § 8(a) (1), (3), (4), (5) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1), (3), (4), (5). The Board may exercise the full extent of its statutory jurisdiction in any case, N. L. R. B. v. Pease Oil Co., 2 Cir., 279 F.2d 135, 137-138, and its assumption of jurisdiction here was proper. Concerning the merits, ample evidence exists to justify the Board's finding that the discharge of respondent's three pressmen, who were attempting to unionize, resulted from their union activity and, in one case, from the pressman's testimony in a Board hearing regarding the discharge of the other two. Further, the Board's conclusion that the pressmen constituted an appropriate bargaining unit was warranted.
2
Enforcement orders will issue in both cases.
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IN THE
TENTH COURT OF APPEALS
No. 10-04-00034-CR
Doyle Sherman Ard,
Appellant
v.
The State of Texas,
Appellee
From the 249th
District Court
Johnson County, Texas
Trial Court No. F33777
O p i n i o n
Doyle Sherman Ard appeals
the denial of his motion for forensic DNA testing. In one issue, he asserts
that he was denied effective assistance of counsel in his appointed counsel’s
representation on his Chapter 64 motion.
Background
Ard was convicted of aggravated assault
with a deadly weapon and was sentenced to forty years in prison. We affirmed
the conviction in an unpublished opinion. See Ard v. State, No.
10-00-00283-CR (Tex. App.—Waco Oct. 30, 2002, pet. ref’d, untimely filed) (not
designated for publication). In this case, the victim testified that he and
Ard were drinking one evening when Ard put a gun to the victim’s head. The
victim tried to grab the gun, which went off and shot the victim’s finger. As
the victim ran away, Ard shot a second time, grazing the victim’s arm.
In this proceeding, Ard filed a motion
for appointment of counsel under Chapter 64 of the Code of Criminal Procedure.
In the motion, Ard expressed a desire for post-conviction DNA testing. The
trial court appointed counsel to represent Ard. Treating the motion for
appointment of counsel as a motion for post-conviction DNA testing, the trial
court held a hearing to determine the merits of the “motion.” Ard was not
present for the hearing. His appointed counsel admitted that she could not
tell from Ard’s “motion” what he wanted to test or what he hoped the test would
show.[1]
She also admitted to the court that she had not yet received a response to her
letter to Ard asking for more information. Nevertheless, she elected to “stand
on his motion and ask what he asks.” The trial court denied the pro se “motion”
that Ard had filed. This appeal followed, with Ard assuming that he had a
right to effective assistance of counsel and asserting that his appointed
counsel was ineffective.
Chapter 64: Post-Conviction DNA Testing
Chapter 64 of the Texas Code of
Criminal Procedure provides a procedural vehicle for a convicted person to
request the convicting court to order post-conviction DNA testing of evidence
containing biological material under narrow circumstances. See Tex. Code Crim. Proc. Ann. arts.
64.01-.05 (Vernon Supp. 2005). This vehicle allows a convicted person to
obtain a certain type of evidence that can then be used in a state or federal
habeas corpus proceeding. Thacker v. State, 177 S.W.3d 926, 927 (Tex. Crim. App. 2005). The purpose of Chapter 64 is to allow a convicted person the
procedural means to obtain DNA evidence to prove that he or she is innocent and
would not have been convicted. Kutzner v. State, 75 S.W.3d 427, 438-39
(Tex. Crim. App. 2002) (discussing Chapter 64’s legislative history); Tex. Code Crim. Proc. Ann. art.
64.03(a)(2)(A) (court may order DNA testing if convicted person establishes by
preponderance of the evidence that person would not have been convicted if
exculpatory results had been obtained through DNA testing); id. art. 64.04
(court to examine test results and make finding “whether, had the results been
available during the trial of the offense, it is reasonably probable that the
person would not have been convicted”).
Under Chapter 64, the
convicted person is entitled to appointed counsel if the person informs the
court that the person wishes to submit a motion for DNA testing, the court
finds reasonable grounds for the motion, and the court determines that the
person is indigent.[2]
Tex. Code Crim. Proc. Ann. art.
64.01(c). But despite this statutory right to counsel and the trial court’s
appointment of counsel for Ard, the State argues that several intermediate Texas courts have held the convicted persons do not have a right to effective assistance of
counsel in Chapter 64 proceedings and that Ard has no such right. We decline
to follow those courts. Instead, we hold that the statutory right to counsel
includes a due-process right that the representation be effective.
Right to Effective Assistance of Counsel
While there is a statutory
right to counsel under Chapter 64, there is no federal or state constitutional
right to counsel in a Chapter 64 proceeding. Id.; Winters v. Presiding
Judge, Crim. Dist. Ct. No. 3, Tarrant County, 118 S.W.3d 773, 774 (Tex.
Crim. App. 2003). The Court of Criminal Appeals has not decided whether an
appellant may raise a claim of ineffective assistance of counsel arising from a
Chapter 64 hearing. See Bell v. State, 90 S.W.3d 301, 307 (Tex. Crim.
App. 2002) (assuming that ineffective-assistance claim may be raised but
holding that record did not establish ineffective assistance). Most recently, that
court stated:
Although
we need not decide whether another remedy is available in a case in which a
convicted person did not receive adequate assistance of counsel in a Chapter 64
proceeding, we may observe that, in some cases, a convicted person may get
relief from defective representation by counsel through appeal under that
chapter. We also see that Chapter 64 does not prohibit a second, or
successive, motion for forensic DNA testing, and that a convicting court may
order testing of material that was not previously tested “through no fault of
the convicted person, for reasons that are of a nature that the interests of
justice require DNA testing.”
Baker v. State, --- S.W.3d ---, ---, 2006 WL 289122,
at *3 (Tex. Crim. App. Feb. 8, 2006) (quoting Tex.
Code Crim. Proc. Ann. art. 64.01(b)(1)(B) (emphasis added)); see also
Suhre v. State, --- S.W.3d ---, ---, 2006 WL 28915, at *1 (Tex. Crim. App. Feb. 8, 2006) (“it is conceivable that a convicted person who receives
ineffective assistance of counsel in a DNA proceeding may be entitled to relief
by way of a second DNA proceeding”).
In our view, the Court of
Criminal Appeals has left open the issue of whether a convicted person has the
right to effective assistance of counsel in a Chapter 64 proceeding, which is
the precise issue before us. Four of our sister courts, however, have held
that there is no constitutional right to effective assistance of counsel in a Chapter
64 proceeding. See Hughes v. State, 135 S.W.3d 926, 928 (Tex.
App.—Dallas 2004, pet. ref’d); Morris v. State, 110 S.W.3d 100, 103
(Tex. App.—Eastland 2003, pet. ref’d); In re Beasley, 107 S.W.3d 696,
697 (Tex. App.—Austin 2003, no pet.); Frischenmeyer v. State, 2003 WL
21108262, at *2 (Tex. App.—Texarkana May 16, 2003, no pet.) (not designated for
publication). These courts reasoned that the Court of Criminal Appeals has analogously
held that there is no constitutional right to effective assistance of counsel
in a post-conviction habeas corpus proceeding, even though a statute provided
for appointment of habeas counsel. See Ex parte Graves, 70
S.W.3d 103, 110, 113 (Tex. Crim. App. 2002) (“[a]bsent such a constitutional
right to counsel, there can be no constitutional right to effective assistance
of counsel in a habeas proceeding. . . . we decline to turn a legislative act
of grace into a constitutional right.”). A Chapter 64 proceeding itself,
however, is not a post-conviction collateral attack. Thacker, 177
S.W.3d at 927 (“Unlike a state application for writ of habeas corpus, a motion
for DNA testing cannot, by itself, result in relief from a conviction or
sentence.”); see also Baker, --- S.W.3d at ---, 2006 WL 289122, at *1-2
(discussing that favorable result from DNA testing under Chapter 64 has no
effect on conviction but may be used in a post-conviction habeas corpus). But
see Beasley, 107 S.W.3d at 697 (“Although these holdings were made in the
context of post-conviction habeas corpus proceedings, they are equally
applicable to a post-conviction request for forensic DNA testing under chapter
64, which is another form of collateral attack.”).
Moreover, in Graves, the habeas applicant was claiming that his original habeas counsel was
ineffective in failing to include several claims in the applicant’s original
writ, and the narrow issue before the court was “whether applicant is entitled
to have the merits of this ineffective assistance of prior habeas corpus claim
heard on a subsequent writ.” Graves, 70 S.W.3d at 107. In
holding that there is no constitutional right to effective assistance of
counsel on a writ of habeas corpus, a divided court rested its decision in part
on the concern of endless ineffective-assistance litigation: “A claim of
ineffective assistance of the prior habeas counsel would simply be the gateway
through which endless and repetitious writs would resurrect.” Id. at 115. That concern is not present in Chapter 64 proceedings, as the Court of
Criminal Appeals has tacitly approved of a successive Chapter 64 proceeding as
a remedy for ineffective assistance. See Baker,
--- S.W.3d at ---, 2006 WL 289122, at *3 (“Chapter 64
does not prohibit a second, or successive, motion for forensic DNA testing”); Suhre,
--- S.W.3d at ---, 2006 WL 28915, at *1 (“it is conceivable that a convicted
person who receives ineffective assistance of counsel in a DNA proceeding may
be entitled to relief by way of a second DNA proceeding”).
We find the posture and rationale
of Graves to be inapposite to the issue before us, and we find Graves’s Chapter 64 progeny unpersuasive. Whether a convicted person has the right
to effective assistance of counsel in a Chapter 64 proceeding comes down to one
of two propositions: either we accept the notion that the absence of a
constitutional right to counsel precludes a right to an effective assistance of
counsel claim in a Chapter 64 proceeding, or we accept the proposition that the
right to counsel—constitutional or statutory—is meaningless if effective
assistance is not guaranteed. We accept the latter because we hold that due
process compels it.
In a parental-rights termination case,
we held that “a statutory right to counsel in a termination case includes a
due-process right that the representation be effective.” In re B.L.D.,
56 S.W.3d 203, 212 (Tex. App.—Waco 2001), rev’d on other grounds, 113
S.W.3d 340 (Tex. 2003).[3]
The Fort Worth court, agreeing with our opinion in B.L.D., expounded on
an indigent person’s due-process right to effective assistance of counsel. In
re K.L., 91 S.W.3d 1, 4-13 (Tex. App.—Fort Worth 2002, no pet.). Under the
due-process analysis set out and applied in K.L., we conclude that the statutory
right to appointed counsel in a Chapter 64 proceeding includes a due-process
right to effective assistance of counsel. See id. We cannot conceive a
reason not to recognize this due-process right, considering the underlying
rationale of Chapter 64: providing a procedural vehicle to obtain favorable DNA
evidence for the eventual establishment of a convicted person’s actual
innocence.[4]
Application
Having concluded that Ard had a right
to effective assistance of counsel, we turn to his claim that he received
ineffective assistance. To determine whether counsel is effective, we apply
the standard set forth in Strickland v. Washington. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish a claim of ineffective
assistance of counsel, appellant must show that counsel’s assistance fell below
an objective standard of reasonableness and that counsel’s deficient
performance, if any, prejudiced the defendant. Id. at 687, 104 S.Ct. at
2063. Thus, even if we were to assume that Ard’s counsel’s performance was
deficient, we must also question whether his counsel’s ineffectiveness deprived
him of a fair hearing and prejudiced him. Id. at 687, 104 S.Ct. at
2064; Bell, 90 S.W.3d at 307. Ard must show there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
A convicting court may order forensic
DNA testing under Chapter 64 only if the court finds, inter alia, that
evidence stills exists in a condition making DNA testing possible, that
identity was or is an issue in the case, and that the convicted person
establishes by a preponderance of the evidence that the person would not have
been convicted if exculpatory results had been obtained through DNA testing. Tex. Code Crim. Proc Ann. art. 64.03(a)(1)(B),
(a)(2)(A). The mere absence of the victim’s DNA material on the gun would not
establish Ard’s innocence by a reasonable probability. And importantly, Ard does
not assert or show that identity was or is an issue in his case. Because Ard
has not shown a reasonable probability that, but for his allegedly ineffective
counsel, the result would have been different, he cannot prevail on his
ineffective assistance of counsel claim. Finding no prejudice, we overrule
Ard’s sole issue.
Conclusion
In this case, we hold that
Ard was entitled to effective assistance of counsel in his Chapter 64
proceeding but that he cannot show prejudice from the alleged ineffective
assistance. We therefore affirm the trial court’s denial of Ard’s motion.
BILL VANCE
Justice
Before
Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief
Justice Gray concurring)
Affirmed
Opinion
delivered and filed March 22, 2006
Publish
[CRPM]
[1] Ard
initially appealed pro se, but we abated the appeal so the trial court could
appoint appellate counsel. Ard’s argument was that if the victim’s story was
true, blood from the victim’s finger would be sprayed, dripped, or smeared on
the weapon. Ard contends that, if the gun were tested, absence of the victim’s
DNA would be exculpatory. The State provided an affidavit stating that the gun
still exists.
[2] In
its original enactment, the statute required appointment of counsel for an
indigent person. Act of April 5, 2001,
76th Leg., R.S., ch. 1, § 2, 2001 Tex. Gen. Laws 2. In 2003, the statute was
amended to limit
the requirement of counsel to cases in which the court finds reasonable grounds
for a motion to be filed. Act of May 9, 2003, 77th Leg., R.S.,
ch. 13, § 1, 2003 Tex. Gen. Laws 16 (codified at Tex. Code Crim. Proc. Ann. art. 64.01(c)).
[3] The
Texas Supreme Court subsequently held that the statutory right to counsel in
parental-rights termination cases includes the right to effective counsel. In
re M.S., 115 S.W.3d 534, 544 (Tex. 2003) (“we believe that ‘[i]t would seem
a useless gesture on the one hand to recognize the importance of counsel in
termination proceedings, as evidenced by the statutory right to appointed
counsel, and, on the other hand, not require that counsel perform
effectively’”). The supreme courts of several other states have examined
statutes that provide a right to counsel and have held that the right to
counsel entails that such counsel be effective. See Patchette v. State,
374 N.W.2d 397, 398 (Iowa 1985) (holding that statutory grant of
post-conviction applicant’s right to court-appointed counsel in proceeding
arising out of prison disciplinary hearings “necessarily implies that that
counsel be effective”); Dunbar v. State, 515 N.W.2d 12, 14-15 (Iowa
1994) (applying same rationale to the statutory grant of counsel for
post-conviction proceedings attacking conviction); Lozada v. Warden, 613
A.2d 818, 821-22 (Conn. 1992) (reasoning that statutory right to habeas counsel
“would become an empty shell if it did not embrace the right to have the
assistance of a competent counsel”); Jackson v. Weber, 623 N.W.2d 71, 74
(S.D. 2001) (“[W]e will not presume that our legislature has mandated some
useless formality requiring the mere physical presence of counsel as opposed to
effective and competent counsel”); Commonwealth v. Albert, 561 A.2d 736,
738 (Pa. 1989) (“It is axiomatic that the right to counsel includes the
concomitant right to effective assistance of counsel”).
[4] The
Court of Criminal Appeals recently stated that it has granted relief by
post-conviction writs of habeas corpus to convicted persons who have used
favorable forensic DNA test results to prove actual innocence. Baker,
--- S.W.3d at ---, 2006 WL 289122, at *2 & n. 20 (citing Ex parte Karage, 2005 WL
2374440, AP-75,252 (Tex. Crim. App. Sept. 28, 2005) (not
designated for publication); Ex parte Sutton, AP-75,181 (Tex.
Crim. App. May 25, 2005) (not designated for publication); Ex parte Ochoa,
No. 74,246 (Tex. Crim. App. Sept. 19, 2001) (not designated for publication)).
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216 F.3d 970 (11th Cir. 2000)
Frederick Lamar HARRIS, Danny Chadwick, et. al., Plaintiffs-Appellants,v.Wayne GARNER, Commissioner of the Georgia Department of Corrections, A.G. Thomas, Director of Facilities Division of the Georgia Department of Corrections, et. al., Defendants-Appellees,United States of America, Intervenor-Appellee.
No. 98-8899.
United States Court of Appeals,Eleventh Circuit.
June 27, 2000.
Appeal from the United States District Court for the Middle District of Georgia. (No.97-00079-5-CV-4-HL), Hugh Lawson, Judge.
Before ANDERSON, Chief Judge, and TJOFLAT, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON, Circuit Judges.
CARNES, Circuit Judge:
1
In an effort to stem the flood of prisoner lawsuits in federal court, Congress enacted the Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 Stat. 1321 (1996) ("PLRA"). One of the provisions of the PLRA states that:
2
No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.
3
42 U.S.C. § 1997e(e). We granted rehearing en banc in this case to decide whether the provision applies to lawsuits that are filed while the plaintiff is a confined prisoner but which are not decided until after he is released from confinement. We hold it does.
I. BACKGROUND
4
The factual and legal background of this case is set forth in some detail in the panel opinion, Harris v. Garner, 190 F.3d 1279, vacated, reh'g granted en banc, 197 F.3d 1059 (11th Cir.1999), and we will not repeat it at length here. Suffice it to say that eleven inmates of a Georgia prison filed a lawsuit claiming that their federal constitutional rights had been violated during a prison "shakedown." All eleven of them were confined in the prison when the lawsuit was filed, but by the time the district court entered judgment fifteen-and-a-half months later six of the inmate plaintiffs had been released from confinement.1 The district court nonetheless applied section 1997e(e) to bar those six prisoners' claims for monetary relief, because they had not alleged the requisite physical injury.
5
A panel of this Court reversed the district court's judgment insofar as it applied section 1997e(e) to the monetary claims of those six plaintiffs, see Harris, 190 F.3d at 1284-85, but we granted rehearing en banc, see Harris, 197 F.3d 1059 (11th Cir.1999), which vacated the panel opinion. We now reinstate all of the panel opinion except for Part III A, which is the part that concerns this issue, and except for Part IV, the Conclusion, insofar as it relates to this issue. For the reasons that follow, we affirm the district court's judgment in part and vacate and remand it in part.
II. DISCUSSION
A. The Plain Language of the Statute
6
We begin our construction of section 1997e(e) where courts should always begin the process of legislative interpretation, and where they often should end it as well, which is with the words of the statutory provision. See United States v. Gilbert, 198 F.3d 1293, 1298 (11th Cir.1999) (citing United States v. Steele, 147 F.3d 1316, 1318 (11th Cir.1998) (en banc) ("In construing a statute we must begin, and often should end as well, with the language of the statute itself.") (citations omitted)); see also Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) ("[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others," which is "that courts must presume that a legislature says in a statute what it means and means in a statute what it says there;" and "[w]hen the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.") (citations and marks omitted).
7
Insofar as the issue before us is concerned, the operative language of section 1997e(e) is "No federal civil action may be brought by a prisoner confined ...," and the loadbearing word is "brought," a derivative of the verb "bring" in the third person singular, passive voice. The dispositive question is whether "bring" means to commence or start a lawsuit, or instead means to maintain or continue it to conclusion.2
8
The standard legal dictionary answers that question as follows: "To 'bring' an action or suit has a settled customary meaning at law, and refers to the initiation of legal proceedings in a suit." Black's Law Dictionary 192 (6th ed.1990); accord 5 Words and Phrases, "Begun" (1968) (defining "begun" or "brought" to mean "commenced"). That is the generally accepted meaning of the term, and this is not the first time we have had occasion to say so. In EEOC v. Eastern Airlines, Inc., 736 F.2d 635, 639 (11th Cir.1984), we were called upon to interpret section 7(c)(1) of the Age Discrimination in Employment Act, which provides that the right of any person "to bring" a private action under that statute terminates upon the commencement of an enforcement action by the EEOC. The defendant in the case argued that "to bring" means filing or continuing a lawsuit, so that once the EEOC starts an enforcement action, section 7(c)(1) bars a private plaintiff from continuing a previously filed lawsuit. See id. at 639. We rejected that position, agreeing instead with the Second Circuit's decision in Burns v. Equitable Life Assurance Soc. of the U.S., 696 F.2d 21, 23 (2d Cir.1982), that "the words 'to bring' mean only 'to commence,' rather than to 'commence or maintain.' " See EEOC, 736 F.3d at 639-40. The same is true here.
9
The Supreme Court has reached an identical conclusion about the meaning of "bring" and "brought." Hoffman v. Blaski, 363 U.S. 335, 341, 80 S.Ct. 1084, 1089, 4 L.Ed.2d 1254 (1960), involved 28 U.S.C. § 1404(a), the venue provision which permits the transfer of "any civil action to any other district or division where it might have been brought." The argument was made that because the statute is remedial, the words " 'where it might have been brought' should be held to relate not only to the time of the bringing of the action, but also to the time of the transfer." See id. at 342, 80 S.Ct. at 1089. The Supreme Court rejected that position, in large part because the statutory language was "unambiguous, direct [and] clear," id. at 343, 80 S.Ct. at 1089, and interpreting "might have been brought" to refer to anything other than the time the lawsuit was filed would "do violence to the plain words" of the statute. Id. at 344, 80 S.Ct. at 1090. The same is true here.
10
This is not new ground. The Supreme Court first broke it one hundred and seventeen years ago, when it had occasion to apply a legislative requirement that a lawsuit be "brought within 90 days after the decision" of a government official. The Court said this:
11
A suit is brought when in law it is commenced, and we see no significance in the fact that in the legislation of congress on the subject of limitations the word "commenced" is sometimes used, and at other times the word "brought." In this connection the two words evidently mean the same thing, and are used interchangeably.
12
Goldenberg v. Murphy, 108 U.S. 162, 163, 2 S.Ct. 388, 389, 27 L.Ed. 686 (1883). The same is true here: "brought" means "commenced."
13
The decisions we have laid out show that for more than a century before the enactment of the PLRA, it was well established that "brought" and "bring" refer to the filing or commencement of a lawsuit, not to its continuation. This long history of established meaning is important, because we readily presume that Congress knows the settled legal definition of the words it uses, and uses them in the settled sense. See Commissioner v. Keystone Consol. Industries, Inc., 508 U.S. 152, 159, 113 S.Ct. 2006, 2011-12, 124 L.Ed.2d 71 (1993) (explaining that Congress is presumed to be aware of settled judicial and administrative interpretations of words when it writes them into a statute); Alabama v. Tennessee Valley Authority, 636 F.2d 1061, 1065 (5th Cir.1981) ("When a word has a judicially settled meaning, it is presumed that Congress, by using that word in a statute, used it in that accepted sense.") (citation omitted).
14
The meaning that we give section 1997e(e)'s "may be brought"-the plain and ordinary meaning of the words-is also mandated by our recent decision about the meaning of "shall be brought" as that phrase is used in another section of the same legislation. Congress included in the PLRA an administrative exhaustion requirement which provides that "No action shall be brought with respect to prison conditions ... until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (emphasis added). In Miller v. Tanner, 196 F.3d 1190, 1193 (11th Cir.1999), we interpreted the word "brought" in section 1997e(a) to mean the filing of the lawsuit, holding: "An inmate incarcerated in a state prison, thus, must first comply with the grievance procedures established by the state department of corrections before filing a federal lawsuit under section 1983." (emphasis added). Indeed, the panel opinion in this case agrees with that interpretation. See Harris, 190 F.3d at 1286 (holding that the "brought" language in section 1997e(a) "means that a prisoner must exhaust all administrative remedies that are available before filing suit ....") (emphasis added).
15
The language we have quoted from the Miller decision establishes that "brought," as used in section 1997e(a)'s "No action shall be brought ..." language means filed. And the same word means the same thing in section 1997e(a)'s "No federal civil action shall be brought ..." language. See Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 609, 76 L.Ed. 1204 (1932) ("[T]here is a natural presumption that identical words used in different parts of the same act are intended to have the same meaning."); Doctors Hosp., Inc. of Plantation v. Bowen, 811 F.2d 1448, 1452 (11th Cir.1987) ("A presumption is made that the same words used in different parts of an act have the same meaning.").
16
Our interpretation of section 1997e(e) is also consistent with the decisions of other courts of appeal which have interpreted that and similarly worded other provisions of the PLRA. In Kerr v. Puckett, 138 F.3d 321, 322-23 (7th Cir.1998), the Seventh Circuit held that application of the section 1997e(e) bar depends on the confinement status of the plaintiff at the time the lawsuit was commenced. The Kerr case involved a prisoner who was no longer confined at the time he filed the lawsuit, having already been released on parole. Based on the plain language of the statute, the Seventh Circuit concluded that Congress intended to exclude the possibility "that 'prisoner' refers to the plaintiff's status at the time of the injury rather than at the time the litigation begins." Id. at 323. The Court held section 1997e(e) did not apply, because "Kerr brought the suit after he had been released on parole and was therefore no longer 'confined in a jail, prison, or other correctional facility.' " Id. at 322. Only because Kerr was not confined at the time he filed his lawsuit did the Seventh Circuit hold that section 1997e(e) did not apply.
17
Under the reasoning in Kerr, the Seventh Circuit would reach the opposite result, and the same one we do here, where the plaintiff was confined when he filed the lawsuit. It is confinement status at the time the lawsuit is "brought," i.e., filed, that matters. The same rule of decision has been applied by the other circuits that have had occasion to speak to the issue. See Greig v. Goord, 169 F.3d 165, 167 (2d Cir.1999) ("Appellees acknowledge that Greig was a parolee at the time he filed his complaint ....") (emphasis added); Doe v. Washington County, 150 F.3d 920, 924 (8th Cir.1998) ("When he filed this complaint, Doe was neither incarcerated nor detained in any jail, prison, or correctional facility.") (emphasis added). Plaintiffs have been unable to cite a single decision of any district court or court of appeals holding that section 1997e(e) turns upon the confinement status of the plaintiff at any time other than the time the lawsuit is filed.
18
Not only is our conclusion about the meaning of "brought" reinforced by the decisions of the other circuits that have interpreted section 1997e(e), it is also consistent with decisions of the circuits that have interpreted "brought" and "bring" as those words are used in other provisions of the PLRA. Several of those decisions concern the PLRA's "three strikes" section. That section, codified as 28 U.S.C. § 1915(g), provides that a prisoner may not "bring a civil action or appeal" in forma pauperis if he has on three or more occasions brought an action or appeal that was dismissed on grounds it was frivolous, malicious, or failed to state a claim, unless the prisoner is under imminent danger of serious physical injury.
19
The words "bring a civil action or appeal" in section 1915(g) have been held to mean the filing of a suit or appeal, not its continuation. See Chandler v. D.C. Dept. of Corrections, 145 F.3d 1355, 1359 (D.C.Cir.1998). ("[W]e hold that the phrase 'appeal a judgment' in subsection (g) refers to the initiation of an appeal," and "the phrase 'bring a civil action' means to initiate a suit."); Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir.1998) ("In order to implement this statutory scheme, we must determine if danger exists at the time the plaintiff seeks to file his complaint or notice of appeal IFP.") (emphasis in original); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir.1998) ("As the statute's use of the present tense verbs 'bring' and 'is' demonstrates, an otherwise ineligible prisoner is only eligible to proceed IFP if he is in imminent danger at the time of filing.") (emphasis in original); Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir.1996) (holding that section 1915(g) "governs bringing new actions or filing new appeals-the events that trigger an obligation to pay a docket fee-rather than the disposition of existing cases").
20
Decisions interpreting 28 U.S.C. § 1915(b)(1), the PLRA's full payment provision, are also relevant. That section states: "if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee." 42 U.S.C. § 1915(b)(1). Two of the three circuits which have interpreted that "bring" language have held it means the provision applies to prisoners who were confined when they filed a notice of appeal even though they were released before their appeal was decided. In Gay v. Texas Dept. of Corrections State Jail Div., 117 F.3d 240, 242 (5th Cir.1997), the Fifth Circuit, "[b]ased on the plain language of § 1915(b)(1)" and that Court's "desire to put some teeth into the PLRA's front-end deterrent," held that the filing fee requirement applied to a former prisoner, because when he filed an appeal he was confined, even though he was released before his appeal was decided. That he "was released from prison after he filed his notice of appeal is irrelevant," the Fifth Circuit concluded. Id. The Seventh Circuit reached the same conclusion in Robbins v. Switzer, 104 F.3d 895, 897-98 (7th Cir.1997) ("Robbins was a prisoner when he filed ..., and therefore is obligated to pay. His current status does not alter the fact that he was a prisoner when he filed the appeals."). But see McGann v. Comm'r, Social Security Administration, 96 F.3d 28 (2d Cir.1996) (reaching the opposite conclusion); see also id. at 30-31 (Miner, J., dissenting) ("My dissent is compelled by the simple and familiar principle that when the language of a statute is plain and enacted within the constitutional authority of Congress, as it is here, the sole function of the courts is to enforce it according to its terms.") (internal marks and citation omitted).
21
In expressing its intent about which civil actions section 1997e(e) bars, Congress said it bars those federal civil actions "brought by a prisoner confined," not those continued by, or litigated to judgment by a prisoner confined. Cf., W.J. Lake & Company v. King County, 4 Wash.2d 651, 104 P.2d 599 (Wash.1940) (interpreting the statutory phrase "the court before whom such action is brought" and holding: "The statute cannot be extended beyond its plain terms. Had the word 'pending' been used, instead of brought, a different question would be presented. This action was not 'brought' before this court.") The plaintiffs and the dissenting opinion, in effect, ask us to rewrite the clear and unequivocal language Congress used, so that it will read: "No federal civil action may be brought by a prisoner confined ... except if he is no longer confined at the time judgment is entered in the case." (emphasized language added). That is exactly how the provision would read if it meant what they say it does. If Congress had wanted to weaken the section 1997e(e) bar by adding that exception, it easily could have done so. We will not do to the statutory language what Congress did not do with it, because the role of the judicial branch is to apply statutory language, not to rewrite it. See Badaracco v. Commissioner, 464 U.S. 386, 398, 104 S.Ct. 756, 764, 78 L.Ed.2d 549 (1984) ("Courts are not authorized to rewrite a statute because they might deem its effects susceptible of improvement."); Blount v. Rizzi, 400 U.S. 410, 419, 91 S.Ct. 423, 429, 27 L.Ed.2d 498 (1971) ("it is for Congress, not this Court, to rewrite the statute"); Korman v. HBC Florida, Inc., 182 F.3d 1291, 1296 (11th Cir.1999) ("It is not the business of courts to rewrite statutes.").3
B. The Congressional History
22
When the import of the words Congress has used is clear, as it is here, we need not resort to legislative history, and we certainly should not do so to undermine the plain meaning of the statutory language. See United States v. Gonzales, 520 U.S. 1, 117 S.Ct. 1032, 1035, 137 L.Ed.2d 132 (1997) ("Given the straightforward statutory command, there is no reason to resort to legislative history."); Ratzlaf v. United States, 510 U.S. 135, 147-48, 114 S.Ct. 655, 662, 126 L.Ed.2d 615 (1994) ("There are, we recognize, contrary indications in the statute's legislative history. But we do not resort to legislative history to cloud a statutory text that is clear."); Barnhill v. Johnson, 503 U.S. 393, 401, 112 S.Ct. 1386, 1391, 118 L.Ed.2d 39(1992) ("To begin, we note that appeals to statutory history are well taken only to resolve statutory ambiguity."); United States v. Steele, 147 F.3d 1316, 1318 (11th Cir.1998) (en banc) ("Where the language Congress chose to express its intent is clear and unambiguous, that is as far as we go to ascertain its intent because we must presume that Congress said what it meant and meant what it said.").
23
Notwithstanding that well-recognized and bedrock principle, sometimes judges who find that legislative history supports and complements the plain meaning of statutory language cannot resist the temptation to set out that history. We have given in to that temptation more than once. See, e.g., United States v. Gilbert, 198 F.3d 1293, 1299 (11th Cir.1999) ("Given the plain meaning of the statutory language, we could bypass any consideration of legislative history. Nevertheless, for the sake of completeness, and because this is our first occasion to decide a Hyde Amendment case, we will look at that history.") (internal marks and citations omitted). We find the temptation to set out the legislative history of the PLRA irresistible-even though the plain meaning of the statutory language in section 1997e(e) makes it irrelevant-because we want to correct what we believe is a misreading or misapplication of that legislative history in the panel opinion, see Harris, 190 F.3d at 1284-85, and in the dissenting opinion.4
24
The panel opinion says that "Congress manifestly wanted to draw a bright line distinction between those who are prisoners, and those who are not prisoners." Id. at 1284-85. That statement is true as far as it goes, of course, but the question is when did Congress want a plaintiff's status as a prisoner or non-prisoner to be determined for purposes of the PLRA's restrictive provisions. The legislative history of the PLRA shows that Congress was concerned with the number of prisoner cases being filed, and its intent behind the legislation was to reduce the number cases filed, which is why Congress made confinement status at the time of filing the decisive factor.
25
Congress' concern and intent is reflected in the floor statements of Senators Dole and Kyl, two of the principal architects of the PLRA.5 Their statements reveal that it was the filing of the prisoner lawsuits that Congress viewed as a problem and set about to solve. See 141 Cong. Rec. S14408-01, S14413 (daily ed. Sept. 27, 1995) (statement of Sen. Dole) (explaining that the number of prisoner suits filed "has grown astronomically-from 6,600 in 1975 to more than 39,000 in 1994."); 141 Cong. Rec. S7498-01, S7524 (daily ed. May 25, 1995) (statement of Sen. Dole) ("Frivolous lawsuits filed by prisoners tie up the courts, waste valuable judicial and legal resources, and affect the quality of justice enjoyed by the law-abiding population.") (emphasis added); 141 Cong. Rec. S14408-01, S14418 (daily ed. Sept. 27, 1995) (statement of Sen. Kyl) ("Today's system seems to encourage prisoners to file with impunity.") (emphasis added).
26
Confined prisoners have little to lose by filing frivolous lawsuits, and that is why Congress made the confinement status of the plaintiff at the time a lawsuit is filed the controlling factor. See 141 Cong. Rec. S7498-01, S7526 (daily ed. May 25, 1995) (statement of Sen. Kyl) ("Filing frivolous civil rights lawsuits has become a recreational activity for long-term residents of our prisons.") (emphasis added); 141 Cong. Rec. S7498-01, S7524 (daily ed. May 25, 1995) (statement of Sen. Dole) ("[P]risoners will now 'litigate at the drop of a hat,' simply because they have little to lose and everything to gain." (quoting Chief Justice Rehnquist)). As the Seventh Circuit has explained, "Congress deemed prisoners to be pestiferous litigants because they have so much free time on their hands and there are few costs to filing suit." Kerr v. Puckett, 138 F.3d at 323. The distinction between current and former prisoners makes sense for that reason, and because "[o]pportunity costs of litigation rise following release, diminishing the need for special precautions against weak suits." Id.; see also Madrid v. Gomez, 190 F.3d 990, 996 (9th Cir.1999) ("[I]t is certainly conceivable that, because of significant potential gains and low opportunity costs, prisoners generally file a disproportionate number of frivolous suits as compared to the population as a whole."); Tucker v. Branker, 142 F.3d 1294, 1301 (D.C.Cir.1998) (noting that "prisoners have a lower opportunity cost for their time than other indigent (and in all likelihood, non-indigent) litigants").
27
Congress made confinement status at the time of filing the criterion, because that is the point at which the difference in opportunity costs was causing the problem Congress was trying to solve: the large number of filings. See generally Christiansen v. Clarke, 147 F.3d 655, 658 (8th Cir.1998) ("Because prisoners, even under the PLRA, initially pay a reduced filing fee (they receive, in effect, an interest free loan to pay the full filing fee), see 28 U.S.C. § 1915(b), and because prisoners have excessive amounts of free time on their hands, they are more likely than paying plaintiffs to file meritless suits.") (emphasis added). Given the legislation's overriding goal of reducing the number of prisoner cases filed, it would have made little or no sense for Congress to have made confinement status at any time after filing determinative.
28
In considering why Congress chose to peg the application of section 1997e(e) on confinement status at the time of filing, it is worth mentioning that confinement status can change several times during the course of the months or years it takes the overburdened district courts to enter judgment in a case. Consider this hypothetical and how episodic the application of section 1997e(e) would be if post-filing confinement status were the criterion: A plaintiff is confined when he files the lawsuit (the section applies); shortly thereafter he is released on parole (the section no longer applies); later he is picked up and jailed on a parole violation charge (the section applies again); he bails out after a few days (the section no longer applies); but after a hearing his parole is revoked, and he is returned to prison (the section applies again).6 No one has yet explained to us why Congress would have wanted the application of an important provision, such as section 1997e(e), to be such an on-again, off-again thing.
29
Last year alone, there were 3,465 prisoner lawsuits filed in the district courts of this circuit. See Admin. Office of the U.S. Courts, Statistical Tables for the Federal Judiciary, Table C-3, 34-35 (for the twelve-month period ending June 30, 1999).7 As this case illustrates, it often takes more than a year after filing for judgment to be entered by the district court in such a case. The best figures available indicate that more than 47,000 state and federal prisoners were released from confinement in this circuit in the most recent twelve-month period.8 Many of the tens of thousands of prisoners who are released from confinement each year in this circuit alone undoubtedly have federal lawsuits pending at the time of their release. The magnitude of the problem illustrates the wisdom of Congress' deliberate decision to draw the confinement line-with plain and unequivocal language-where it did in section 1997e(e), which is at the point of filing. We have no authority to move that line.9
30
Because section 1997e(e) applies only to claims filed while an inmate is confined, it does not prevent a former prisoner from filing after release a monetary damages claim for mental and emotional injury suffered while confined, without a prior showing of physical injury. Accordingly, dismissal under this statutory provision of a claim that is filed during confinement should be without prejudice to re-filing the claim if and when the plaintiff is released. See Zehner v. Trigg, 952 F.Supp. 1318, 1335 (S.D.Ind.1997) (dismissal without prejudice of section 1997e(e) barred claim), aff'd, 133 F.3d 459 (7th Cir.1997). Some, but not all, claims will be re-filed after the plaintiff is released, and more total effort may well be required to adjudicate those particular claims that are re-filed than if the section 1997e(e) bar did not exist. But the provision reflects Congress' belief that because of the difference in opportunity costs, a substantial number of such claims will not be re-filed after release and that will result in a significant net savings to the judicial system. That is the judgment Congress made about what the difference in opportunity costs between inmates and former inmates would mean, and it is the judgment underlying section 1997e(e).
C. The Purported Amendment or Supplement
31
The panel opinion says that after these six plaintiffs were released, and before the district court entered judgment against them, the court permitted them to amend the complaint to indicate their new status as former prisoners. That, according to the panel opinion, makes all the difference and allows these plaintiffs to escape the section 1997e(e) bar. See Harris, 190 F.3d at 1284. We are not entirely convinced that the complaint was actually amended in that or any other way.10 The panel opinion had no doubt there was an amendment. Now, the dissenting opinion says that there is no doubt that there was not an amendment, but a supplement. It appears that the requirements of Rule 15(d) were not met.11 But we are convinced that any such amendment or supplement is irrelevant to the application of section 1997e(e), and so we will assume for purposes of discussion that before judgment was entered against the plaintiffs the complaint was amended or supplemented to reflect that they had been released from confinement after they filed the lawsuit.
32
The reason such an amendment or supplement makes no difference is that, for all of the reasons we have already discussed, the confinement status of the plaintiffs at any time after the lawsuit is filed is beside the point. The status that counts, and the only status that counts, for purposes of section 1997e(e) is whether the plaintiff was a "prisoner confined in a jail, prison, or other correctional facility" at the time the federal civil action was "brought," i.e., when it was filed. It is an undisputed historical fact that all of these plaintiffs were confined in a Georgia prison or correctional facility at the time their complaint was filed. No amendment or supplement to a pleading can change a historical fact, and the one in question did not purport to do so. The amendment or supplement did not deny that these six plaintiffs had been confined prisoners at the time the lawsuit was filed. All it noted was that they had been released since the lawsuit was filed which, of course, means that they were no longer "prisoner[s] confined." But that change in their status after the lawsuit was filed is irrelevant under section 1997e(e).
33
As we have discussed, the intent of Congress behind section 1997e(e) was to reduce the number of prisoner lawsuits filed, and specifically to reduce the number that are filed because the opportunity costs of filing a lawsuit are lower for an incarcerated plaintiff than for one in the free world. The opportunity costs of filing a lawsuit do not change after it has been filed. That is why the release of an inmate after he has filed a lawsuit is irrelevant for purposes of section 1997e(e).12
34
The opposing position essentially treats section 1997e(e) as if Congress had been concerned not with the opportunity costs of filing a lawsuit, but instead with the opportunity costs of continuing an already filed lawsuit. Only if that were true would an amendment or supplement noting that the plaintiff had been released after filing the lawsuit make any difference. But most of the damage to the overburdened system is already done, or put in motion, after the lawsuit is filed. That is why Congress made the operative fact the plaintiff's status at the time of filing, not status at the time the lawsuit is decided. We know Congress did that, because it said: "No federal civil action may be brought by a prisoner confined ..." (emphasis added), and as we have explained "brought" means filed; it does not mean continued or maintained after filing. Congress chose its words and we will heed them.
35
The difference between our position and that of the dissenting opinion is crystalized in its proposition that a prisoner who files his claim in direct contravention of section 1997e(e) while he is incarcerated ought to be allowed to continue with that claim after release, because "[p]risoners who are released while their suit is still pending immediately begin to face the same opportunity costs of prosecuting their action as everyone else." Dissenting Op. at 2766. Congress could have written the statute to focus on the opportunity costs of prosecuting actions, but it did not. Instead, Congress aimed at the opportunity cost of filing actions. That is clear in the language Congress used to express its will ("brought," not "prosecuted" or "continued"), and in the legislative history, see 141 Cong. Rec. S7498-01, S7524 (daily ed. May 25, 1995) (statement of Sen. Dole) ("Frivolous lawsuits filed by prisoners tie up the courts, waste valuable judicial and legal resources, and affect the quality of justice enjoyed by the law-abiding population.") (emphasis added); 141Cong. Rec. S14408-01, S14418 (daily ed. Sept. 27, 1995) (statement of Sen. Kyl) ("Today's system seems to encourage prisoners to file with impunity.") (emphasis added).
36
If there were a conflict between Federal Rule of Civil Procedure 15 and the PLRA, the rule would have to yield to the later-enacted statute to the extent of the conflict. See Mitchell v. Farcass, 112 F.3d 1483, 1489 (11th Cir.1997) (a PLRA case) ("a statute passed after the effective date of a federal rule repeals the rule to the extent that it actually conflicts." (quoting and adopting the holding of Jackson v. Stinnett, 102 F.3d 132, 135 (5th Cir.1996))); Floyd v. United States Postal Serv., 105 F.3d 274, 278 (6th Cir.1997). But there is no conflict. In proper circumstances and when the requirements contained in Rule 15 are met, the rule does permit amendments or supplements to pleadings in order to bring to the attention of the court changes in the facts, but other law-in this instance section 1997e(e)-determines whether those changes in the facts make any difference. As we have said, the change in the facts (the post-filing release of the plaintiffs) that this purported amendment or supplement brought to the attention of the court makes no difference whatsoever under section 1997e(e).
37
Rule 15(d) does authorize a court to permit a party to supplement a pleading "even though the original pleading is defective in its statement of a claim for relief or defense." But that rule does not and cannot overrule a substantive requirement or restriction contained in a statute (especially a subsequently enacted one). The decisions the dissenting opinion relies upon are distinguishable. None of them involved a statutory purpose and requirement that the plaintiff be made to bear the differential opportunity cost of a re-filing in order to discourage filings, which is what section 1997e(e) is all about. In none of those decisions would the purpose behind the statutory requirement be defeated by treating subsequently occurring facts as though they had occurred before the complaint was filed. That is the situation we would have here, and it was not present in any of the decisions upon which the dissenting opinion is based.
38
Take, for example, Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). The statutory requirement that an applicant for Social Security benefits commence a civil action within sixty days after the mailing of the decision which is being appealed, see 42 U.S.C. § 405(g), is obviously intended to do what all filing deadlines do-ensure that the action is promptly filed while the facts and issues are fresh, and bring to the process to a close sooner instead of later. One of several plaintiffs in that case had joined in a civil action challenging an eligibility provision before he had actually filed an application with the Secretary of the Department of Health, Education, and Welfare. The Supreme Court held that plaintiff's subsequent filing of the application sufficed, and that the Secretary "could waive the exhaustion requirements which this provision contemplates" and had done so in that case. Id. at 75-76, 96 S.Ct. at 1889. As the Supreme Court explained, "For jurisdictional purposes, we treat the [Secretary's] stipulation in the District Court as tantamount to a decision denying the application and as a waiver of the exhaustion requirement." Id. at 76-77, 96 S.Ct. at 1890.
39
The defendants in our case have stipulated away or waived nothing about section 1997e(e). More fundamentally, permitting the plaintiff in Mathews to join a civil action early, which is what happened in that case, does not undermine the statutory purpose that an action be filed promptly, and the sooner the better. Allowing that plaintiff to proceed was in keeping with a statutory purpose. See id. at 75 n. 9, 96 S.Ct. at 1889 n. 9. By contrast, in this case permitting the plaintiffs to proceed would undermine the statutory purpose of prohibiting these types of claims from being filed by prisoners with nothing but time on their hands.
40
The other supplemental pleading cases the dissenting opinion relies upon are distinguishable in the same way as Mathews. In all of them Rule 15(d) was used to further the statutory purpose involved, not to defeat it. At the risk of being repetitive, the statutory purpose behind section 1997e(e) is to prevent prisoners from filing a certain type of claim, and to require that they shoulder the differential opportunity costs of filing that type of claim in the free world if they are released.
41
An analogy may be useful to illustrate our point here. It is well established that the only citizenship of the original parties that matters for purposes of determining whether diversity jurisdiction exists is their citizenship at the time the lawsuit is filed; any changes in a party's citizenship that occur after filing are irrelevant. See Freeport-McMoRan, Inc. v. KN Energy, Inc., 498 U.S. 426, 428, 111 S.Ct. 858, 860, 112 L.Ed.2d 951 (1991); Wichita R.R. & Light Co. v. Public Utilities Comm'n of Kansas, 260 U.S. 48, 54, 43 S.Ct. 51, 53, 67 L.Ed. 124 (1922) ("Jurisdiction once acquired on that ground is not divested by a subsequent change in the citizenship of the parties."). That is the substantive law. If an amendment or supplement to the pleadings is offered to show that the citizenship of one of the original parties has changed since the lawsuit was filed, that amendment or supplement should be denied as futile. The reason it should be denied as futile-and the reason it will make no difference if permitted-is that the parties' citizenship at the time of filing determines that legal issue, which is whether diversity of jurisdiction exists. There is no conflict between the law that citizenship at the time of filing governs for diversity purposes and the liberal allowance of amendments or supplements to the pleading under Rule 15; it is simply that the change in the facts which the amendment or supplement in our diversity jurisdiction hypothetical seeks to bring to the court's attention is irrelevant under the governing law. The same is true here.
42
The dissenting opinion points out that the present case is not a diversity case. See Dissenting Op. at 2759-60, n. 11. That is true, but neither is it a social security case or a copyright case, or any of the other kinds of cases involved in the decisions the dissent relies upon. See id. at 2757-59. The dissenting opinion places particular reliance upon a copyright case, M.G.B. Homes, Inc. v. Ameron Homes, 903 F.2d 1486 (11th Cir.1990), and it quotes with approval how that opinion swept aside the district court's lack of jurisdiction with the statement that it "was, at most, technically without jurisdiction." Dissenting Op. at 2758 (quoting 903 F.2d at 1489). That is a problematic approach given the fact that virtually all jurisdictional rules and issues are "technical." But we do not have the copyright pre-filing registration requirement at issue before us, so we do not pass upon the continuing validity of the panel decision in M.G.B. Homes. Suffice it to say that to the extent, if any, M.G.B. Homes supports the dissent's position, it is to that extent inconsistent with the Supreme Court's subsequent decision in Freeport-McMoRan, which we have already discussed, and we are guided by that Supreme Court decision.
43
In closing out our discussion of this issue, we express our appreciation to the dissenting opinion for its candor in acknowledging that by bringing this type of claim while incarcerated these six plaintiffs have clearly violated section 1997e(e). As the dissenting opinion acknowledges: "The question is not, what is the meaning of the word 'brought.' It is, instead, what happens when a plaintiff violates section 1997e(e) by bringing a federal civil action while in custody, but is later released, and seeks to supplement his pending complaint to reflect the fact of his release? In other words, what is the remedy for plaintiff's violation of the statute?" Dissenting Op. at 2753-54 (emphasis in original). The answer, according to the dissenting opinion, is that there is no remedy for such a violation of the statute. Instead, the violation is to be treated as though it never occurred and the plaintiff is not to be sanctioned in any way for the violation-not even by being forced to re-file the claim after release. We disagree, because we do not think the way to enforce congressional enactments is by removing any burden, inconvenience, or expense from those who violate them.
D. Application to Constitutional Claims
44
We turn now to one final matter. Under the guise of seeking to avoid what they describe as "serious constitutional questions," the plaintiffs ask us, in effect, to rewrite section 1997e(e) by construing it not to apply to constitutional claims. The panel at least implicitly held that section 1997e(e) does apply to constitutional claims, see Harris, 190 F.3d at 1286, and for three reasons we agree. First, the "avoidance" canon of construction plaintiffs rely upon applies where there is ambiguous statutory language, see Southlake Property Associates, Ltd. v. City of Morrow, Georgia, 112 F.3d 1114, 1119 (11th Cir.1997), and here there is none. Section 1997e(e) unequivocally states that "No Federal Civil Action may be brought ...," 42 U.S.C. § 1997e(e) (emphasis added), and "no" means no. The clear and broad statutory language does not permit us to except any type of claims, including constitutional claims. See Cassidy v. Indiana Dep't of Corrections, 199 F.3d 374, 376 (7th Cir.2000) (rejecting the contention that section 1997e(e) does not apply to constitutional claims, and after quoting the first four words of the provision, explaining that "[i]n light of this plain language, we will not carve out exceptions for which Congress did not provide."). Courts should not employ the canon of construction that ambiguous statutory language is to be construed to avoid constitutional questions as a pretext for rewriting clear statutory language. See Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 841, 106 S.Ct. 3245, 3251, 92 L.Ed.2d 675 (1986) ("It is equally true, however, that this canon of construction does not give a court the prerogative to ignore the legislative will in order to avoid constitutional adjudication," and a court "must not and will not carry this [canon] to the point of perverting the purpose of a statute or judicially rewriting it.") (internal marks and citation omitted).
45
Second, as we have already discussed, the legislative history of the PLRA clearly shows that its purpose is to substantially reduce the number of prisoner lawsuits. See supra, at 2740-41. That purpose could never be attained if constitutional claims were not covered by the restrictive provisions, because the overwhelming majority of prison lawsuits raise one or more constitutional claims. Construing section 1997e(e) to be inapplicable to constitutional claims would render it virtually meaningless.
46
Third, the constitutional issues plaintiffs ask us to rewrite the statute to avoid were decided against them by the panel opinion in this case, see Harris, 190 F.3d at 1287-90, and we have reinstated that part of the opinion as the law of this circuit. See also Davis v. District of Columbia, 158 F.3d 1342, 1345-48 (D.C.Cir.1998) (rejecting constitutional challenges to section 1997e(e)).
III. CONCLUSION
47
When plaintiffs Chadwick, Cook, Dailey, Harris, Hooks, and Nation brought this "federal civil action," they were each a "prisoner confined in a jail, prison, or other correctional facility." For that reason, and notwithstanding the fact that each of them was released from confinement before the district court entered judgment against them, 42 U.S.C. § 1997e(e) applies with full force and effect to them. Accordingly, the judgment of the district court is affirmed, except to the extent that it dismissed with prejudice under section 1997e(e) the claims of those six plaintiffs for monetary relief. To that extent only, the judgment is vacated and remanded with directions that the monetary relief claims of those six plaintiffs that are barred solely because of section 1997e(e) are to be dismissed without prejudice to their being re-filed at a time when the plaintiffs are not confined.
48
AFFIRMED in part and VACATED and REMANDED in part.13
NOTES:
1
The lawsuit was filed on March 10, 1997, and judgment was entered on June 24, 1998. The six plaintiffs who were released from confinement during that interval are Danny Chadwick, Lenois Cook, William Dailey, Frederick Harris, Willie Hooks, and Farrell Nation. See Harris, 190 F.3d at 1283. The other five plaintiffs were still confined when judgment was entered in the district court but, according to the plaintiffs' brief, some of them have been released since then. All eleven of the plaintiffs are jointly represented in this appeal, but their counsel does not argue that any of those who were released after the date of the district court's judgment are, because of their release, free from the restrictions of section 1997e(e). Our references hereafter to "plaintiffs" are to those six who were released before the date of the district court's judgment, but the reasoning and holding of this opinion obviously apply as well to those who were released thereafter.
2
The panel opinion focuses on the definition of "prisoner" in section 1997e(h): "the term 'prisoner' means any person incarcerated or detained in any facility ..." See 190 F.3d at 1294. But it matters not if we characterize the status question in terms of whether the plaintiff is a prisoner, or in terms of whether the plaintiff is confined. Under the PLRA a confined plaintiff is a prisoner, and a plaintiff who is not confined is not a prisoner. The question is whether section 1997e(e) covers a plaintiff who is a confined prisoner at the time the lawsuit is filed but who becomes a non-confined, former prisoner by the time judgment is entered. As we explain in the text, the answer lies in the plain meaning of the word "bring."
3
The dissenting opinion labels our interpretation of the plain language of section 1997e(e) "judicial activism," a label which would more aptly apply to an interpretative approach that writes language into a statute. Our interpretation neither adds anything to nor subtracts anything from the statutory language.
4
The dissenting opinion takes us to task for discussing the legislative history as it reflects the clear Congressional purpose behind section 1997e(e), and charges that it is inconsistent for us to point out that the legislative history reinforces our conclusion about the plain meaning of the statutory language. See Dissenting Op. at 2762-63. So long as legislative history is not used to contradict the plain meaning of the statutory language, we see no inconsistency in pointing out that both the statutory language and legislative history lead to the same interpretative result. Besides, if there were any inconsistency in relying upon both the statutory language and legislative history, the panel opinion would not have done it, see 190 F.3d at 1284-85, nor would the dissenting opinion do it, see Dissenting Op. at 2761-62, 2765-66.
5
The evolution of the legislative language itself provides little guidance. In its original form, the provision that would become section 1997e(e) limited recovery in civil actions brought "by an adult convicted of a crime confined in a jail, prison, or other correctional facility." S. 866, 104th Cong. 1st Sess. § 7A (1995). The remarks during floor debate are more important than usual, as this Court has explained: "[B]ecause Congress enacted [the] PLRA as a rider to an appropriations bill, floor debate is more indicative of legislative intent than it otherwise would be, especially where the floor statements in favor of the bill remain uncontested." Alexander v. Hawk, 159 F.3d 1321, 1325 n. 8 (11th Cir.1998) (internal marks and citations omitted). The statements of Senators Dole and Kyl are due special consideration, because they, along with Senators Hatch, Hutchison, and Abraham, were the architects of the PLRA. See 142 Cong. Rec. S3703- 01, S3704 (daily ed. April 19, 1996).
6
The dissenting opinion at 2772 n. 18 dismisses our hypothetical as "somewhat exotic." To the contrary, the latest information shows that more than 694,000 prisoners are on parole in this country. See Thomas P. Bonczar & Lauren E. Glaze, U.S. Dept. of Justice, Probation and Parole in the United States, 1998 5 (1999). Many are arrested and incarcerated for parole violations, then make bail, and so forth. Indeed, in the latest year for which statistics are available, over 155,000 of the nation's state prisoners were parole violators. See Robyn L. Cohen, U.S. Dept. of Justice, Probation and Parole Violators in State Prisons, 1991 2 (1995). Although no bail statistics are available, for those 155,000 potential plaintiffs there was at least initial incarceration, release from incarceration, and return to incarceration.
Thus, our parole violation hypothetical describes a situation occurring with far greater frequency than the "even worse scenario" upon which the dissent relies: a scenario where a prisoner has filed a claim for monetary damages, has gotten past a motion to dismiss on the physical injury requirement, has gotten past summary judgment on that issue, and goes to trial on that issue but is released before judgment is entered against him on it. See Dissenting Op. at 2772. If the inmate is not released until after judgment is entered against him on the physical injury issue then the dissent's scenario is not a criticism of our interpretation of § 1997e(e), because everyone (including the dissent) agrees that § 1997e(e) applies with full force where judgment is entered before the release, even if by only a day. Moreover, the criticism the dissenting opinion attempts to mount through use of its scenarios would not apply even where the inmate was released before judgment, unless the inmate had not suffered any physical injury. All agree that the § 1997e(e) bar has no application at all where there is physical injury. The only cases that fit the dissent's "even worse scenario" are those in which the plaintiff has not suffered any physical injury but nonetheless makes it past a motion to dismiss on that issue, then makes it past a summary judgment motion on that issue, then loses at trial on that issue, but is released before judgment is entered. That is truly a "somewhat exotic" hypothetical.
7
The statistic we cite does not include 28 U.S.C. §§ 2241, 2254, and 2255 filings, because they are not covered by the PLRA. See Anderson v. Singletary, 111 F.3d 801, 805 (11th Cir.1997) ("Congress promulgated the PLRA to curtail prisoner tort, civil rights and conditions litigation, not the filing of habeas corpus petitions.")
8
The state corrections departments and the Federal Bureau of Prisons have different reporting years, but using the most recently completed reporting year for each, the figures are as follows: 8,421 state prisoners were released from confinement in Alabama, see Alabama Dep't of Corrections, Monthly Reports (Oct.1998-Sept.1999 data); 15,213 state prisoners were released from confinement in Georgia, see Georgia Dep't of Corrections, Inmate Statistical Profile-Prison Departures (1998); 23,025 state prisoners were released from confinement in Florida, see Florida Dep't of Corrections, Inmate Releases, Annual Report (1999); and 1,508 inmates were released from confinement in federal prisons in this circuit in calendar year 1999 (federal release figures obtained from the Southeast Regional Office of the Federal Bureau of Prisons).
9
The dissenting opinion constructs elaborate, multi-premised scenarios in an effort to show how its approach would yield better policy results than the one we think Congress embodied in section 1997e(e). See Dissenting Op. Part III at 2770-72. There are many flaws to the reasoning underlying the dissent's scenarios. To begin with, one of its essential factual premises is that a substantial number of prisoners who file complaints that fall within the scope of the provision will make it past a motion to dismiss, and past summary judgment to trial on the physical injury issue. Not only that, but the dissent posits that they will be released before judgment is entered. See Dissenting Op. at 2771. That sounds to us like an unlikely scenario. See supra, at 2741 n. 6. The dissent cannot point to anything in this record or elsewhere that indicates those facts are likely to occur with any regularity. Those facts do not represent the typical case, or this case, either. These six plaintiffs were all released before the magistrate judge had even made any recommendation on the Rule 12(b)(6) motion to dismiss the complaint under section 1997e(e). Nor is there any apparent basis for the dissent's assumption that in the typical case a substantial amount of effort will be invested in determining whether the plaintiff has suffered physical injury. Here, that question was decided in a motion to dismiss, and even if the case had gone to summary judgment, there is no reason to believe that much effort would have been required to determine whether there was a triable issue of physical injury.
A second problem with the dissent's reasoning relating to the scenarios it puts forward is that the very same reasoning argues just as strongly against application of section 1997e(e) in situations to which the provision indisputably does apply. All the effort the dissent's scenarios posit also will have been spent in those cases in which the claim for monetary relief is held to be barred under section 1997e(e) in a judgment entered before the inmate plaintiff is released. Yet, no one disputes that if the judgment is entered before the plaintiff is released, section 1997e(e) applies with full force, and that is true even if the release happens just after judgment or while the case is on appeal. See supra, at 2734 n. 1. Yet, according to the dissent's reasoning, all of that adjudication of the physical injury issue will have been a total waste, see Dissenting Op. at 2750 ("the awful burden"), because it predicts the case will be re-filed after the plaintiff's release and the monetary damages claim will have to be re-litigated free of the physical injury requirement of section 1997e(e). See Dissenting Op. at 2772 ("All of the court's work in determining whether the plaintiff suffered physical injury will have been for naught, because physical injury will no longer be an element of the plaintiff's claim."). Thus, it appears that the dissenting opinion's stated policy disagreement applies equally to any application of section 1997e(e).
A third defect with the dissent's posited scenarios and reasoning is that its fundamental premise is at war with the congressional premise behind section 1997e(e). The dissent's scenarios assume, without any basis, that all or most plaintiffs who file complaints while incarcerated and have them dismissed under section 1997e(e) will re-file those complaints after they are released. That is the only way that there will be the duplication of effort and "the awful burden" on the system the dissent fears. Yet, as we all agree, the congressional judgment behind section 1997e(e) is that because of a difference in opportunity costs, a released inmate is far less likely to file a lawsuit than an incarcerated inmate. See Harris, 190 F.3d at 1284-85; supra, at 2739-41; Dissenting Op. at 2765-66. The dissenting opinion's scenarios and the assumptions underlying them reveal that the dissent's disagreement with our position is actually a disagreement with what we believe to be the policy decisions and attendant judgments Congress made in enacting section 1997e(e).
10
No motion to amend the complaint was filed, and neither the magistrate judge nor the district court said the complaint had been amended. The plaintiffs did file a motion to withdraw their request for injunctive relief, which simply acknowledged that there was no longer any need for an injunction in view of their release. But the court did not formally rule on that motion. Instead, the magistrate judge (whose recommendations were adopted by the district court without relevant change) concluded: "These plaintiffs cannot obtain monetary relief because they alleged only mental or emotional injuries and their injunctive claims are moot since they have been released from prison." [R & R at 5]. The claims were dismissed with prejudice.
11
The rule provides that a supplement to the pleadings may be permitted "[u]pon motion of a party." Fed.R.Civ.P. 15(d). There was no motion to supplement the pleadings. The rule also says that the court may permit a supplement "upon reasonable notice." Id. We can hardly say that the defendants had reasonable notice that a supplement to the pleadings was being considered when the first time it occurred to anyone that it was a Rule 15(d) supplement to the pleadings is when the case reached the en banc stage of appeal. The thought that a Rule 15(d) supplement was involved apparently never occurred to the parties in the district court, to the district judge, or to the panel judges. The rule also charges the district court with conditioning permission to supplement the pleadings upon "such terms as are just." Id.; see also Fed. R.. Civ. P. 15(d) advisory committee note ("As in other situations where a supplemental pleading is offered, the court is to determine in the light of the particular circumstances whether filing should be permitted, and if so, upon what terms.") The district court did not do what the rule requires a court to do before permitting a supplemental pleading, apparently because the court was not aware that it was being requested to permit a supplement to the pleadings.
12
The opening and penultimate paragraphs of the dissenting opinion characterize our holding as being that the district court properly dismissed the complaint under section 1997e(e) "even though that section no longer applies to plaintiffs because they are no longer prisoners within the meaning of the Act," Dissenting Op. at 2749 & 2774. Of course anyone would dissent from a holding that a statute was properly applied to cases to which it no longer applies. That is not what we hold. Instead, as explained in the text above, we hold that because these plaintiffs were incarcerated at the time they filed their complaint, section 1997e(e) applies to them even though they were later released before any judgment was entered in the case. Or to put it in the same terms the dissenting opinion uses, we hold that the district court properly dismissed the complaint because section 1997e(e) does apply to it.
13
We decide only the issues that we have expressly addressed and imply no view about any other issue.
ANDERSON, Chief Judge, concurring specially:
49
I concur in the result, and in much of the reasoning of the majority. I agree with the majority that the statutory language evinces a congressional purpose to discourage, indeed to bar, a prisoner from bringing a suit for mental or emotional injury suffered while in custody without a prior showing of physical injury. I do not believe that it is contrary to the statutory language to routinely dismiss such suits, even if the prisoner has been released after the filing of the suit. Indeed, I believe dismissal would be the appropriate action in most such circumstances; and that dismissal would best serve the congressional language and purpose.
50
However, I agree with the dissent that Fed.R.Civ.P. 15(d) would provide some discretion in a district judge to entertain a supplemental pleading setting forth the fact of a prisoner's release, and to avoid dismissing a case under some of the more unusual circumstances described by the dissent. In my judgment, a district court should exercise such discretion only rarely (for example, when a prisoner had a colorable claim of physical injury which has been tried to a jury and when a dismissal would involve a manifest waste of judicial resources).
51
Because it is clear to me that the instant case is not one in which the district judge would exercise discretion to avoid dismissal, a remand would be futile. Accordingly, I concur in the judgment affirming the district court.
52
TJOFLAT, Circuit Judge, concurring in part and dissenting in part in which BIRCH, BARKETT and WILSON, Circuit Judges, join:
53
The majority states that Congress enacted 42 U.S.C. § 1997e(e) (passed as part of the Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 Stat. 1321 (1996) (codified in scattered sections of 42 U.S.C. & 28 U.S.C.) (the "PLRA")) "[i]n an effort to stem the flood of prisoner lawsuits in federal court." Ante at 2734. The majority opinion, however, will do just the opposite. For this reason, and because the majority's interpretation of section 1997e(e) cannot be reconciled with either the text of the statutory provision, or the congressional purpose, I dissent from the court's holding that the district court properly dismissed plaintiffs' complaint under section 1997e(e) of the PLRA,1 even though that section no longer applies to plaintiffs because they are no longer prisoners within the meaning of the Act.2
54
Today the court holds that a district court lacks discretion to allow a former prisoner to supplement his complaint to notice the fact of his release from incarceration. This means that whenever a prisoner files an action for mental or emotional injury, the district court has an obligation to dismiss the case no matter what stage the litigation has reached, and regardless of whether section 1997e(e) has ceased to apply in his case. Because the district court must dismiss a former prisoner's case without prejudice, the court will have to entertain the case a second time after essentially the same action is re-filed. Today's decision requires this result even if the first suit reached the summary judgment stage or went to trial. Two full-blown court proceedings may now be required to dispose of one case; this hardly "stem[s] the flood of prisoner lawsuits in federal court."
55
In Part I, below, I set out the facts of the instant case. In Part II, I explain that because plaintiffs are allowed to supplement their complaint under Rule 15(d) of the Federal Rules of Civil Procedure to notice the fact of their release from incarceration, they should be able to continue their lawsuit against employees of the Georgia Department of Corrections (the "GDC"). Finally, in Part III, I discuss the awful burden that the majority has placed on the judiciary by requiring district courts to dismiss a former prisoner's claims for mental or emotional injury under section 1997e(e), and then entertain his claims anew when the plaintiff re-files what is essentially the same lawsuit.
I.
56
Eleven plaintiffs brought this civil rights suit for damages and injunctive relief in the United States District Court for the Middle District of Georgia against employees of the GDC;3 six of these plaintiffs are presently before the court. Plaintiffs alleged violations of their Fourth, Eighth, and Fourteenth Amendment rights as a result of actions allegedly taken by the defendants during a "shakedown" at Georgia's Dooly State Prison facility.4 The district court referred the case to a magistrate judge in accordance with 28 U.S.C. § 636 (1994).
57
On February 4, 1998, before the magistrate judge had issued his report and recommendation to the district court, plaintiffs moved the court for leave to withdraw their claims for injunctive relief because they had been released from the custody of the GDC, and their release had mooted such claims. See Tucker v. Phyfer, 819 F.2d 1030, 1033 (11th Cir.1987). In his report, the magistrate judge recognized that "[p]resently pending before" him was "the plaintiffs' motion to withdraw the injunctive claims of six of their number who have been released." He implicitly granted plaintiffs' motion to withdraw their claims for injunctive relief, and despite the fact that plaintiffs were no longer incarcerated, he also recommended that their claims for compensatory and punitive damages be dismissed under 42 U.S.C. § 1997e(e).5 Section 1997e(e) provides that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." The magistrate judge reasoned that " § 1997e(e) is applicable to the claims of prisoners who have been released," citing Zehner v. Trigg, 952 F.Supp. 1318, 1324 (S.D.Ind.1997), and Kerr v. Puckett, 967 F.Supp. 354, 361-62 (E.D.Wis.1997), both of which were overturned by the Seventh Circuit in Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir.1998) (holding that section 1997e(e) does not apply to former prisoners who are no longer incarcerated). It is thus abundantly clear that the magistrate judge treated plaintiffs' complaint as supplemented under Rule 15(d) to reflect the fact that plaintiffs had been released from the custody of the GDC.6 It is also clear that he recommended dismissal of plaintiffs' claims for compensatory and punitive damages despite the fact that plaintiffs were no longer incarcerated. His recommendation, in this regard, was based on an error in interpreting section 1997e(e) to apply to the claims of former prisoners who are no longer incarcerated. The district court adopted the magistrate judge's recommendation without relevant modification, and dismissed plaintiffs claims with prejudice.7
II.
58
Following, I discuss three elements necessary to resolve the question of whether to allow plaintiffs to supplement their complaint to reflect the fact of their release, and thus to allow them to continue their civil suit against employees of the GDC. These are: (1) under 42 U.S.C. § 1997e(e), prisoners cannot bring federal civil actions for "mental or emotional injury suffered while in custody without a prior showing of physical injury" while they are confined; (2) after they are released from confinement, former prisoners can bring federal civil actions for "mental or emotional injury suffered while in custody without a prior showing of physical injury;" and (3) Rule 15(d) of the Federal Rules of Civil Procedure allows litigants to supplement their pleadings to "set[ ] forth transactions or occurrences or events which have happened since the date of the [original] pleading ... even though the original pleading is defective in its statement of a claim for relief or defense." After discussing these elements, I then ask whether Congress has indicated, either in the statutory text or in the legislative history of the PLRA, its intent to abrogate Rule 15(d) in applying section 1997e(e), so that prisoners should be precluded from supplementing their complaints to reflect the fact of their release.
A.
59
42 U.S.C. § 1997e(e) precludes prisoners from bringing federal civil actions "for mental or emotional injury suffered while in custody without a prior showing of physical injury" while they are "confined in a jail, prison, or other correctional facility." For reasons not entirely clear to me, the majority spends most of its opinion focusing on this element, canvassing every part of the PLRA to come up with the totally unremarkable conclusion that when section 1997e(e) says "[n]o Federal civil action may be brought," it means that no prisoner can "commence or start a lawsuit," ante at 2735, for "mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e).
60
I have no idea why the majority goes to such lengths to demonstrate this point, or what other definition of the word "brought" might be considered plausible. The majority appears to believe that the panel mistakenly interpreted "brought" to mean "maintain[ed]" or "continue[d]," ante at 2735, and that this was the source of its supposed error in holding that plaintiffs should be allowed supplement their complaint to reflect the fact of their release. But following the majority's reasoning, it would make no difference if the statute prohibited the "commencing" of a federal civil action, or the "maintenance" of a federal civil action while in custody. According to the majority, a violation of the statute requires the district court to dismiss the plaintiff's suit no matter what events transpire subsequent to the violation. If this is the case, then the district court would have to dismiss a suit, even after the prisoner's release, that was "maintained" by a prisoner while in custody, just as the court would have to dismiss a suit that was "commenced" while in custody. I thus fail to understand the majority's distinction, but in any case, it is of no moment. It is obvious that the word "brought" means "commence[d] or start[ed]," ante at 2735, and so I have no quibble with this aspect of the majority opinion.8 The question is not what is the meaning of the word "brought." It is, instead, what happens when a plaintiff violates section 1997e(e) by bringing a federal civil action while in custody, but is later released, and seeks to supplement his pending complaint to reflect the fact of his release? In other words, what is the remedy for plaintiff's violation of the statute?
61
The second element is that 42 U.S.C. § 1997e(e) does not apply to former prisoners who are no longer incarcerated. As the panel explained,
62
42 U.S.C. § 1997e(e) provides: "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." Section 1997e(h) defines a "prisoner" as "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 42 U.S.C. § 1997e(h) (Supp. II 1996). According to the plain language of the statute, section 1997e(e) does not apply to former prisoners, or those who have been released from a correctional facility, because such persons are clearly not "confined in a jail, prison, or other correctional facility," or "incarcerated or detained in any facility." The statute could not be more plain: it applies to those who (a) seek a civil remedy for mental or emotional injury suffered while in custody, and (b) seek such a remedy while they are incarcerated. As the Seventh Circuit has noted in analyzing section 1997e(e), "[t]he statutory language does not leave wriggle room." Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir.1998). It does not apply to persons who have never been prisoners; nor does it apply to former prisoners who seek civil relief for injuries suffered while they were prisoners.
63
Defendants argue that Congress' purpose in enacting the PLRA was to curtail frivolous prisoner litigation, and that reading the statute to bar certain claims by current but not former prisoners is not faithful to congressional intent because, under our interpretation today, some claims "for mental or emotional injury suffered while in custody" can be brought "without a prior showing of physical injury." Further, defendants see little sense in discriminating between prisoners who bring suit while they are incarcerated, and former prisoners who seek relief on the same day they are released.
64
Absent mistake or absurdity, we implement the statutory language as enacted. Salinas v. United States, 522 U.S. 52, 57-58, 118 S.Ct. 469, 473-74, 139 L.Ed.2d 352 (1997). Here, the language of section 1997e(e) could not be clearer. And contrary to defendants' congressional intent argument, Congress manifestly wanted to draw a bright line distinction between those who are prisoners, and those who are not prisoners. See 141 Cong. Rec. S7524-26 (daily ed. May 25, 1995) (statements by Senators Dole and Kyl) (prisoners have a unique incentive to file frivolous lawsuits because litigation "has become a recreational activity for long-term residents of our prisons," because prisoners "have little to lose and everything to gain," and because filing frivolous complaints is "a means of gaining a short sabbatical in the nearest Federal courthouse") (citations and internal quotation marks omitted). The distinction makes a good deal of sense because the "[o]pportunity costs of litigation rise following release, diminishing the need for special precautions against weak suits." Kerr, 138 F.3d at 323. In light of the overwhelming clarity of the statutory text, we join the Seventh Circuit in holding that section 1997e(e) applies only to prisoners who are incarcerated at the time they seek relief, and not to former prisoners who seek damages for injuries suffered while they were incarcerated. See id.; see also, Greig v. Goord, 169 F.3d 165, 167 (2d Cir.1999) (interpreting "prisoner" as used in section 1997e(a), dealing with administrative exhaustion, as not applying to former prisoners no longer incarcerated); Doe v. Washington County, 150 F.3d 920, 924 (8th Cir.1998) (interpreting "prisoner" as used in section 1997e(d), dealing with attorneys' fees, as not applying to former prisoners).
65
Harris, 190 F.3d at 1284-85. The majority concurs in this holding today. See ante at 2743 ("Because section 1997e(e) applies only to claims filed while an inmate is confined, it does not prevent a former prisoner from filing after release a monetary damages claim for mental or emotional injury suffered while confined, without a prior showing of physical injury.").
66
The third and final element is that under Rule 15(d) of the Federal Rules of Civil Procedure, litigants are allowed to supplement their pleadings to "set[ ] forth transactions or occurrences or events which have happened since the date of the [original] pleading ... even though the original pleading is defective in its statement of a claim for relief or defense." Prior to 1963, the text of Rule 15(d) read, in part, as follows:
67
Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented.
68
Minnesota Mining and Mfg. Co. v. Superior Insulating Tape Co., 284 F.2d 478, 481 (8th Cir.1960) (quoting Fed.R.Civ.P. 15(d)) (emphasis omitted). Because of this wording, "several federal courts held that a supplemental complaint could not be used to cure a complaint that failed to state a claim for relief, even though subsequent events had made plaintiff's right to relief apparent and the later pleading effectively cured the deficiencies in the initial effort." 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1505 (2d ed.1990). The theory these courts used was that "plaintiff's right to relief had to be predicated on facts in existence at the time the complaint was filed." Id.; see, e.g., La Salle Nat'l. Bank v. 222 East Chestnut St. Corp., 267 F.2d 247, 252 (7th Cir.1959); Bonner v. Elizabeth Arden, Inc., 177 F.2d 703, 705 (2d Cir.1949). But see Camilla Cotton Oil Co. v. Spencer Kellogg and Sons, Inc., 257 F.2d 162, 165, 167-68 (5th Cir.1958) (allowing plaintiff, under pre-1963 Rule 15(d), to supplement claim for attorney's fees with a pleading indicating that the statutory notice required for plaintiff to get attorney's fees had been satisfied subsequent to the filing of the claim, even though the claim was "imperfect until proper notice was given");9 United States v. Reiten, 313 F.2d 673, 674- 75 (9th Cir.1963) (allowing plaintiff, under pre-1963 Rule 15(d), to supplement complaint with notice to the court that the ninety days required by federal statute before plaintiff had a "right to sue" had expired since the filing of the complaint because "[t]o require appellant to commence a new and separate action in these circumstances would have been to insist upon an empty formalism"). In response to what was perceived as the useless formality of forcing a district court to dismiss a suit without prejudice, so that the plaintiff could then re-file the suit based on subsequent events that had made clear his right to relief, Rule 15(d) was amended in 1963 to include the following language: "Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense." The advisory committee's note to the 1963 amendment emphasizes that the amended Rule is intended to allow both courts and litigants flexibility in addressing the substance of a plaintiff's complaint, rather than require parties to engage in an empty ritual of mindless form:
69
Rule 15(d) is intended to give the court broad discretion in allowing a supplemental pleading. However, some cases, opposed by other cases and criticized by the commentators, have taken the rigid and formalistic view that where the original complaint fails to state a claim upon which relief can be granted, leave to serve a supplemental complaint must be denied.... Thus plaintiffs have sometimes been needlessly remitted to the difficulties of commencing a new action even though events occurring after the commencement of the original action have made clear the right to relief.
70
Under the amendment the court has discretion to permit a supplemental pleading despite the fact that the original pleading is defective.
71
Fed.R.Civ.P. 15(d) advisory committee's note (1963). Thus, it is now clear that plaintiffs are allowed to supplement their pleadings, even if their claim for relief is entirely dependent on events occurring subsequent to the filing of their original complaints.
72
It is also clear that plaintiffs can cure jurisdictional defects in their original complaints by means of a supplemental pleading. In Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976), plaintiff filed a complaint under the Social Security Act, challenging the constitutionality of a provision of the Act which conditioned an alien's eligibility for benefits on continuous residence in the United States for a five-year period and admission for permanent residence. Plaintiff filed his complaint on October 24, 1972; but it was not until two days later, on October 26, that plaintiff actually filed an application for enrollment in the Social Security benefits program, and then brought the fact of his application to the attention of the district court (without formally supplementing his complaint). The statutory provision giving plaintiff a right of action, provided that
73
[a]ny individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow.
74
42 U.S.C. § 405(g) (1994) (emphasis added). Because plaintiff had filed his action before he had applied for benefits, the Supreme Court had to decide "whether the District Court had jurisdiction over [plaintiff's] claim." Mathews, 426 U.S. at 75, 96 S.Ct. at 1889. The Court responded as follows:
75
We have little difficulty with [plaintiff's] failure to file an application with the Secretary until after he was joined in the action. Although 42 U.S.C. § 405(g) establishes filing of an application as a nonwaivable condition of jurisdiction ..., [plaintiff] satisfied this condition while the case was pending in the District Court. A supplemental complaint in the District Court would have eliminated this jurisdictional issue; since the record discloses, both by affidavit and stipulation, that the jurisdictional condition was satisfied, it is not too late, even now, to supplement the complaint to allege this fact. Under these circumstances, we treat the pleadings as properly supplemented by the Secretary's stipulation that [plaintiff] had filed an application.
76
Id. (citations omitted). The Court further elaborated,
77
"[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." 28 U.S.C. § 1653. Although the defect in [plaintiff's] allegations must be cured by supplemental pleading, instead of amended pleading, the statutory purpose of avoiding needless sacrifice to defective pleading applies equally to this case.... Despite [plaintiff's] failure to supplement the complaint, the District Court was aware that he had filed his application; since the Secretary stipulated that the application had been filed, the defect in the pleadings surely did not prejudice him.
78
Id. at 75 n. 9, 96 S.Ct. at 1889 n. 9 (citations omitted).
79
Until today, this court has consistently followed the Supreme Court's direction that a supplemental pleading should be liberally allowed if it will cure a defect in the complaint. In M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486 (11th Cir.1990), plaintiff sued for infringement under the Copyright Act, which provides, in pertinent part,
80
no action for infringement of the copyright in any work shall be instituted until registration of the copyright claim has been made in accordance with this title.
81
17 U.S.C. § 411(a) (1994) (emphasis added). Plaintiff filed a complaint for infringement before applying for copyright registration, but later moved the court to supplement its pleading with notice that it had since filed the required application with the Copyright Office. The district court allowed the supplement and we affirmed, even though "[t]he registration requirement is a jurisdictional prerequisite to an infringement suit." Id. at 1488. We stated,
82
[the district court] was, at most, technically without jurisdiction to entertain [plaintiff's] motion to amend its complaint. However, it is 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.
83
....
84
The amended complaint submitted by [plaintiff] contained all the required allegations. On its face it asserted that the trial court had jurisdiction over the new infringement action. Except for the technical distinction between filing a new complaint and filing an amended complaint, the case would have been properly filed.
85
Id. at 1489 (internal citation and quotation marks omitted);10 see also Lussier v. Dugger, 904 F.2d 661, 669-70 (11th Cir.1990) (holding that plaintiff should be allowed to supplement his complaint with the fact that since filing against a state agency under the federal Rehabilitation Act, the Act had been amended to abrogate the state's Eleventh Amendment immunity, and thus the district court had jurisdiction over the case for any violations that took place subsequent to the date of the amendment's enactment); Rowe v. United States Fidelity and Guar. Co., 421 F.2d 937, 940, 944 (4th Cir.1970) (holding that district court abused its discretion in denying plaintiffs, as creditors of an insured, leave to supplement their complaint, originally filed before the insured had assigned his rights in the insurance to the creditors, with notice that the insured had since assigned his rights; this was so even though the "action [was] judicially cognizable at all ... only through [the] assignment"); Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1108-09 (9th Cir.1970) (holding that it was error for the district court to dismiss plaintiff's complaint for lack of jurisdiction under the Copyright Act, which provided that no infringement action "shall be maintained" until the work is registered, when the plaintiff registered the work subsequent to the filing of its complaint, and a pretrial conference order evidenced that the court treated the complaint as supplemented); Security Ins. Co. v. United States, 338 F.2d 444, 449 (9th Cir.1964) (holding that plaintiff should be allowed to supplement his complaint under the Miller Act, originally filed before the statutory period of ninety days provided for in 40 U.S.C. § 270b(a) had elapsed, with notice that ninety days had since elapsed, because the federal rules encourage "decision[s] on the merits"); Katzman v. Sessions, 156 F.R.D. 35, 39 (E.D.N.Y.1994) (holding that plaintiff should be allowed to supplement his complaint with notice that he had exhausted the administrative remedies required for him to file suit under the Freedom of Information Act, 5 U.S.C. § 552 (1994); the fact that he did not exhaust until after filing did not require dismissal); Montgomery Environmental Coalition v. Fri, 366 F.Supp. 261, 265-66 (D.D.C.1973) (holding that plaintiffs should be allowed to supplement their complaint with notice that the statutory period of sixty days required under the Water Pollution Control Act had elapsed since they filed their complaint; this was so even though 33 U.S.C. § 1365(b) provided that "[n]o action may be commenced ... prior to sixty days after the plaintiff has given notice of the alleged violation") (emphasis added); Amar v. Garnier Enters., Inc., 41 F.R.D. 211, 214-15 (C.D.Cal.1966) (holding that plaintiff should be allowed to supplement his complaint with notice that since filing shareholder's derivative action under California law, he had become a registered shareholder; this was so even though California Corporations Code provided that "[n]o action may be instituted or maintained in right of any ... corporation ... by the holder ... of shares ... unless ... the plaintiff alleges in the complaint that he was a ... registered shareholder ... at the time of the transaction or any part thereof of which he complains") (emphasis added); Lynam v. Livingston, 257 F.Supp. 520, 524-25 (D.Del.1966) (holding that plaintiff should be allowed to supplement her complaint filed as a shareholder's derivative action with notice that since filing, she had made a demand upon the board of directors to prosecute the claim; "the fact that plaintiff was without standing to sue when suit was begun cannot deprive her of the right to allege in a supplemental complaint that after suit was instituted she complied with all conditions required to give her a right to sue").11
86
The courts' liberal allowance of supplemental pleadings to enable parties to state a case or cure a jurisdictional defect is consistent with the underlying philosophy of the Federal Rules of Civil Procedure, that the Rules should "be construed and administered to secure the just, speedy, and inexpensive determination of every action." Fed.R.Civ.P. 1. "The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." Foman, 371 U.S. at 181-82, 83 S.Ct. at 230. Thus, courts routinely grant leave to parties to amend their pleadings under Rule 15(a) to set forth transactions, occurrences, or events that could have been included in the original pleading, but were omitted for one reason or another. See id. ("In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought [to amend] should, as the rules require, be 'freely given.' Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules."); Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir.1991) ("If our precedent leaves any doubt regarding the rule to be applied in this circuit, we now dispel that doubt by restating the rule. Where a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice."); Warner v. Alexander Grant & Co., 828 F.2d 1528, 1531 (11th Cir.1987) (holding that it was error for the district court to dismiss with prejudice without granting leave to amend because "[t]he district court's order contravened the well established policy in the federal courts favoring liberal pleading requirements"); Czeremcha v. International Ass'n of Machinists & Aerospace Workers, 724 F.2d 1552, 1556 (11th Cir.1984) (holding that leave to file an amendment should be "granted liberally"). And under Rule 15(b), courts should allow amendments to conform the pleadings to the evidence both during trial, and even after judgment, as long as the opposing party cannot prove that he is thereby prejudiced:
87
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits.
88
Fed.R.Civ.P. 15(b). All of this is in conformance with the "liberal system of notice pleading set up by the Federal Rules," requiring only a "short and plain statement of the claim showing that the pleader is entitled to relief." Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993) (internal quotation marks omitted). The American legal system encourages the efficient resolution of claims on the merits, and not the avoidance of legal issues by means of tightfisted pleading requirements that constitute nothing more than traps for the unwary.
89
With all three elements on the table, we can now answer the question of whether plaintiffs in the instant case can supplement their complaint to reflect the fact of their release, and thus continue their civil lawsuit against employees of the GDC; and the answer is obviously that they can. 42 U.S.C. § 1997e(e) provides that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." There is nothing in the plain language of the statute that suggests that Congress wanted federal courts to ignore Rule 15(d) in applying section 1997e(e). Given that the Federal Rules of Civil Procedure do, themselves, have statutory effect, see United States v. St. Paul Mercury Ins. Co., 361 F.2d 838, 839 (5th Cir.1966), and given the enormous body of caselaw applying Rule 15(d) to cases in which plaintiffs must supplement their complaints in order to state a case or cure a jurisdictional defect, we would expect Congress to speak with unmistakable clarity if it wanted to override the Federal Rules of Civil Procedure in PLRA cases. See Conroy v. Aniskoff, 507 U.S. 511, 516 & n. 10, 113 S.Ct. 1562, 1566 & n. 10, 123 L.Ed.2d 229 (1993) (holding that there is a presumption that Congress is aware of the relevant case law); Chisom v. Roemer, 501 U.S. 380, 396, 111 S.Ct. 2354, 2364, 115 L.Ed.2d 348 (1991) (holding that if Congress had an intent to deviate from an established legal rule, "Congress would have made it explicit in the statute"). But there is no such unmistakable statement of abrogation; there is not even a hint in the statute that federal courts should abandon the usual rules of pleading, and disallow supplements which have always (at least since 1963) been freely allowed in the normal course to cure a defective complaint. See Mathews, 426 U.S. at 75 n. 9, 96 S.Ct. at 1889 n. 9 ("[T]he statutory purpose of avoiding needless sacrifice to defective pleading applies equally" in cases in which plaintiffs must supplement their complaints, as it does to cases in which plaintiffs seek to amend.); Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir.1995) ("[L]eave to file a supplemental pleading should be freely permitted."); Music Deli & Groceries, Inc. v. IRS, 781 F.Supp. 992, 997 (S.D.N.Y.1991) (same).
90
It does not appear that anyone in Congress even thought about the proposition that Rule 15(d) might not apply in PLRA cases. Despite the majority's "irresistible" impulse to dive into the legislative history, ante at 2739, there is not one word from anyone in Congress, or anyone commenting upon the ramifications of the Act, that indicates that Rule 15(d) might not apply in PLRA cases. See Chisom, 501 U.S. at 396 & n. 23, 111 S.Ct. at 2364 & n. 23 (holding that if Congress had an intent to deviate from an established legal rule when it enacted a statute, "at least some of the Members would have identified or mentioned [the issue] at some point in the ... legislative history.... Congress' silence in this regard can be likened to the dog that did not bark."). In light of today's decision, whenever Congress enacts a statute that qualifies the right of a person to "bring" or "commence" or "institute" an action under federal law, district courts in the Eleventh Circuit will have to conclude that Rule 15(d) is inapplicable, and that courts lack discretion to allow supplemental pleadings to enable a party to state a case or cure a jurisdictional defect. See ante at 2746-47 ("If an amendment or supplement to the pleadings is offered to show that the citizenship of one of the original parties has changed since the lawsuit was filed, that amendment or supplement should be denied as futile.").
91
Further, it is clear from the text of the statute that if Congress had wanted to override a Federal Rule of Civil Procedure, it certainly knew how to do so. In the same statutory section as 42 U.S.C. § 1997e(e), Congress provided in section 1997e(c)(1) that
92
[t]he court shall on its own motion or on the motion of a party dismiss any action brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility if the court is satisfied that the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief.
93
42 U.S.C. § 1997e(c)(1). This statutory provision clearly overrides a defendant's normal obligation to file a Rule 12(b)(6) motion or other responsive pleading with the court in order to obtain a pre-answer dismissal, by allowing the court to dismiss sua sponte a plaintiff's action if it is "frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief." Id. We read each statutory provision with reference to the whole Act. See Massachusetts v. Morash, 490 U.S. 107, 115, 109 S.Ct. 1668, 1673, 104 L.Ed.2d 98 (1989). Where Congress has demonstrated its ability to provide for a particular remedy with specific statutory language, we should not read a statutory provision that contains no such specific language to allow for the particular remedy at issue. See Dean v. American Sec. Ins. Co., 559 F.2d 1036, 1039 (5th Cir.1977); see generally Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 38, 118 S.Ct. 956, 963, 140 L.Ed.2d 62 (1998); West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991). Congress knew how to abrogate the Federal Rules when it wanted to do so, in section 1997e(c)(1). Because Congress enacted no abrogating language in section 1997e(e), it could not have meant that courts should ignore Rule 15(d) of the Federal Rules of Civil Procedure in applying that section of the PLRA.
94
So, the ultimate question remains: if Congress did not mean to override Rule 15(d) in enacting section 1997e(e), what is the remedy for a violation of the statute? The answer, again, is simple. If a federal civil action is brought by a confined prisoner "for mental or emotional injury suffered while in custody without a prior showing of physical injury," then the defendant should move the court to dismiss the case under 42 U.S.C. § 1997e(e). If the plaintiff cannot supplement his complaint to cure the defect, then the court should dismiss the case. If, on the other hand, the plaintiff can cure the defect with notice that section 1997e(e) no longer applies to him, because he has been released from custody, then absent "undue delay, bad faith, dilatory tactics, [or] undue prejudice ..., the motion [to supplement under Rule 15(d) ] should be freely granted." Quaratino, 71 F.3d at 66. Neither this court, nor the Supreme Court, has ever held that when Congress restricts a plaintiff's right to bring a cause of action, we should do anything other than obey the congressional command by using the usual procedures for pleading, adjudication, and dismissal. Absent explicit direction to the contrary, there is no reason to do so today.12
B.
95
Lacking any textual or case support, the majority attempts to prop up the court's holding with references to the legislative history that purportedly establish that Congress' single-minded goal in enacting section 1997e(e) was to curtail prisoner "filing[s]" of lawsuits challenging conditions of confinement. See ante at 2740, 2744-45. Congress was so driven by its objective to stamp out prisoner "filing[s]," we are told, that once a prisoner commits the unpardonable error of "filing" while still incarcerated, all other considerations are out; the suit must be dismissed come hell or high water. First, it is important to note how crucial this legislative history is to the majority's argument, in an opinion that purports to take a textualist approach to statutory interpretation, see ante at 2734-35 ("We begin our construction of section 1997e(e) where courts should always begin the process of legislative interpretation, and where they often should end it as well, which is the words of the statutory provision."). The majority initially tries to justify its holding with the clear language of the statute; this is why its spends so much time trying to answer the mind-numbing question of "whether 'bring' means to commence or start a lawsuit, or instead means to maintain or continue it to conclusion." Ante at 2735. As we have already seen, however, the conclusion that "bring" means "commence" does nothing to buttress the court's holding. Under the majority's reading of the statute, it would not matter whether "bring" meant to "commence," to "maintain," or to "immediately cease and desist." No matter what the word means, if a prisoner does it while confined, then the case must be dismissed, no questions asked. This is the ultimate conclusion that the majority must establish-that whatever section 1997e(e) prohibits, if a person who is confined in a jail, prison, or other correctional facility does it, then Congress intended that courts ignore Rule 15(d) and dismiss the case regardless of whether section 1997e(e) has ceased to apply in the individual's circumstances. The clear text cannot establish this conclusion because section 1997e(e) says nothing about overriding the existing and facially applicable Rules of Civil Procedure. Therefore, in an effort to find a leg to stand on, the "textualist" majority is forced to rely upon the legislative history to make an argument based upon congressional intent (and not the words that Congress actually enacted).13
96
While its attempt to glean from the legislative history a congressional fixation on prisoner "filing" is laudable, the majority misses the mark here as well. In the first place, the "filing" argument is belied by the plain language of the statute, which states that "[n]o Federal civil action may be brought by a prisoner confined...." 42 U.S.C. § 1997e(e) (emphasis added). Part III.D.1 of the panel opinion (now reinstated) held that this language only precludes prisoners from bringing damages actions for mental or emotional injury suffered while in custody, and does nothing to prevent prisoners from bringing actions for declaratory or injunctive relief. See Harris, 190 F.3d at 1287-89. If Congress had wanted to stamp out all prisoner filings, why leave the injunctive avenue of relief available? Under the statute, prisoners can still seek injunctive relief from ongoing mental or emotional injury; they are just precluded from seeking damages.
97
Moreover, the legislative history, itself, demonstrates that Congress' purpose in enacting section 1997e(e) was a bit more nuanced than stamping out prisoner "filings." The majority unwittingly stumbles upon this conclusion when it opines,
98
[a]s the Seventh Circuit has explained, "Congress deemed prisoners to be pestiferous litigants because they have so much free time on their hands and there are few costs to filing suit." Kerr v. Puckett, 138 F.3d at 323. The distinction between current and former prisoners makes sense for that reason, and because "[o]pportunity costs of litigation rise following release, diminishing the need for special precautions against weak suits." Id.; see also Madrid v. Gomez, 190 F.3d 990, 996 (9th Cir.1999) ("[I]t is certainly conceivable that, because of significant potential gains and low opportunity costs, prisoners generally file a disproportionate number of frivolous suits as compared to the population as a whole."); Tucker v. Branker, 142 F.3d 1294, 1301 (D.C.Cir.1998) (noting that "prisoners have a lower opportunity cost for their time than other indigent (and in all likelihood, non-indigent) litigants.").
99
Ante at 2740-41. As the majority indirectly recognizes, the real purpose of section 1997e(e) was not simply to end prisoner "filings," but to curtail what was viewed as the largely meritless litigation (money damages suits for mental or emotional injury) being pursued by a group of people (prisoners) who face uniquely low opportunity costs in pursuing such litigation. The legislative history is replete with references to the idea that prisoners put an especially heavy burden on courts' civil dockets because they have little else to do other than think up ways to sue their jailors. See, e.g., 141 Cong. Rec. S7524-26 (daily ed. May 25, 1995) (statements by Senators Dole and Kyl) (prisoners have a unique incentive to file frivolous lawsuits because litigation "has become a recreational activity for long-term residents of our prisons," because prisoners "have little to lose and everything to gain," and because frivolous complaints are "a means of gaining a short sabbatical to the nearest Federal courthouse") (citations and internal quotation marks omitted). If Congress just wanted to cut down on court "filings," why focus on prisoners at all? Congress could have focused its attention on any number of groups that were deemed to be especially litigious. Instead, however, Congress chose to preclude the bringing of federal civil actions by prisoners because they constituted the group that was particularly well-positioned in the litigation arena. Prisoners have more free time, and often easier access to legal resources than most of the American population. See Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977) (holding "that the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law"); but see Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (holding that Bounds did not eliminate the requirement that an inmate allege actual injury that has resulted from a deprivation of adequate legal resources before he can gain standing to sue in federal court). Because they often file as indigents, prisoners have less to lose and more to gain by bringing lawsuits than the average citizen.
100
This understanding of the legislative purpose contradicts the majority's holding that a court should dismiss a plaintiff's action under section 1997e(e) even if the plaintiff is no longer incarcerated. As the Seventh Circuit has recognized, the "[o]pportunity costs of litigation rise following release, diminishing the need for special precautions against weak suits." Kerr, 138 F.3d at 323.14 If the purpose of the PLRA was to curtail frivolous prisoner litigation, then there is no reason to apply it to persons who are no longer prisoners under the meaning of the Act. Prisoners who are released while their suit is still pending immediately begin to face the same opportunity costs of prosecuting their action as everyone else. They no longer have the same free time or access to legal resources as they did while in custody. Treating former prisoners as if they were still prisoners by dismissing their complaints under section 1997e(e) not only contravenes the clear language of the statute, and Rule 15(d) of the Federal Rules of Civil Procedure, but it also fails to make any sense in light of the statutory purpose.
C.
101
Because today's holding is contradicted by the clear language of the PLRA, ignores Rule 15(d) of the Federal Rules of Civil Procedure, departs radically from all applicable case law, is unsupported by the legislative history, and makes no sense in light of the statutory purpose (thus exhausting all legitimate avenues of statutory construction), I can only conclude that the majority is dissatisfied with what Congress has done in enacting section 1997e(e). The real problem the majority has in this case is that former prisoners can file suits "for mental or emotional injury suffered while in custody without a prior showing of physical injury" on the day they are released from incarceration. It is difficult to argue that Congress wanted courts to enforce the PLRA with such vigor that they should ignore the normal rules of pleading, and disallow supplements indicating that a plaintiff has been released from custody, when what Congress actually did was to enact a statute that ceases to apply on the same day a prisoner is released. The two notions do not gel; the majority's "dog won't hunt." Reynolds v. Roberts, 207 F.3d 1288 (11th Cir.2000).
102
The majority has therefore sought to enhance the PLRA with an interpretation that is not supported by the statutory text. Seizing on a few passages from the legislative history (none of which are even remotely related to the issue of supplemental pleadings), the majority has tried to "put some teeth" into the PLRA, ante at 2738 (quoting Gay v. Texas Dept. of Corrections State Jail Div., 117 F.3d 240, 242 (5th Cir.1997)), by levying one all-purpose sanction on any prisoner who seeks to prosecute a claim for mental or emotional injury, even if the PLRA no longer applies in his case. Why this dissatisfaction with the statute that Congress actually enacted? The answer can be found in the majority's discussion of the number of prisoner filings, bemoaning the fact that "[l]ast year alone, there were 3,465 prisoner lawsuits filed in the district courts of this circuit." Ante at 2742.15 The PLRA may go some distance in reducing the volume of prisoner litigation, but the majority has decided that it does not go far enough. So, because Congress did not quite get it right, we will "help out the legislature" today by means of a judicial amendment that takes the unprecedented step of inferring a remedy for a violation of section 1997e(e) that can be found nowhere in the statute, and that was never mentioned during the legislative debates.
103
Congress could have done a lot of things when it enacted the PLRA. It could have provided for criminal penalties for a violation of section 1997e(e), or a civil fine to be imposed every time a prisoner files while incarcerated. It even could have rendered Rule 15(d) inapplicable in prisoner litigation, so that a prisoner would be precluded from supplementing his complaint to reflect the fact of his release. We know that when Congress wanted to alter the Rules of Civil Procedure, as in section 1997e(c)(1) (court shall "on its own motion ... dismiss any action ... [that is] frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief"), it certainly knew how to do so. Congress, however, provided for none of these remedies for a violation of section 1997e(e). It simply provided that "[n]o Federal civil action may be brought." Without congressional authorization, it is utterly inconceivable that the majority could infer from these words such a drastic remedy as dismissal, regardless of whether the statute actually applies.
104
In an effort to assist Congress in stamping out prisoner lawsuits, the majority has forgotten the one very basic, but fundamental truth that "there is no liberty if the power of judging be not separated from the legislative and executive powers." The Federalist No. 78, at 466 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (quoting Montesquieu, The Spirit of the Laws, vol. I, p. 181). Quite frankly, it is not our job to "put some teeth" into the PLRA, or any other statute that Congress enacts; our job is to follow the congressional command by enforcing the statute as written. "Courts are not authorized to rewrite a statute because they might deem its effects susceptible of improvements." Badaracco v. Commissioner, 464 U.S. 386, 398, 104 S.Ct. 756, 764, 78 L.Ed.2d 549 (1984); see also Blount v. Rizzi, 400 U.S. 410, 419, 91 S.Ct. 423, 429, 27 L.Ed.2d 498 (1971) ("[I]t is for Congress, not this Court, to rewrite the statute."); Korman v. HBC Florida, Inc., 182 F.3d 1291, 1296 (11th Cir.1999) ("It is not the business of courts to rewrite statutes."); cf. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 865, 104 S.Ct. 2778, 2793, 81 L.Ed.2d 694 (1984) ("Courts must, in some cases, reconcile competing political interests, but not on the basis of judges' personal policy preferences."); cf. also Chandler v. James, 180 F.3d 1254, 1275 (11th Cir.1999) (Tjoflat, J., specially concurring) (discussing the separation of powers concerns that arise when courts use the injunctive remedy beyond what Congress has prescribed). The fact that the majority thinks that it is following Congress' purpose is no justification for encroaching upon the legislative domain by inferring remedies that cannot plausibly be drawn from the statutory language. When we blur the boundaries between the judicial and political branches, we threaten the supremacy of the legislature when it comes to the creation of law.
III.
105
The immediate effects of today's decision are troubling. Despite the majority's desire to cut down on prisoner litigation, today's holding will simply spawn needless litigation as the district courts in this circuit are forced to dismiss a prisoner's case without prejudice, and then reconsider the case without the physical injury component after the prisoner is released from custody. I appreciate the majority's candor in acknowledging that because "some ... claims will be re-filed after the [prisoner] is released ..., more total effort may well be required to adjudicate those particular claims than if [the majority's interpretation of] the section 1997e(e) bar did not exist." Ante at 2743. I doubt, however, that the majority realizes the magnitude of the "total effort" that district courts will now have to invest in implementing today's decision. The issue of whether a prisoner can meet section 1997e(e)'s physical injury requirement may not be decided, in many cases, until summary judgment or at trial. Thus, a district court now faces the prospect of bringing its resources to bear on a prisoner's claim, only to conclude on motion for summary judgment or at trial that, since the prisoner suffered no physical injury, it must dismiss the case. The court's efforts will have gone for naught because its determination that there was no physical injury will be of no moment in the court's consideration of the former prisoner's claim, asserted in a new suit filed subsequent to his release, that he suffered mental or emotional injury while in custody.
106
Following, I set out Congress' purpose in enacting section 1997e(e). I then compare, in light of the congressional purpose, the practical effects of my interpretation of section 1997e(e), with the practical effects that will surely flow from the majority's interpretation.
A.
107
As noted supra in Part II.B, the purpose of section 1997e(e) was not just to cut down on prisoner "filing." Such a myopic view of the statute misses the forest for only one tree. The purpose of the statute was to curtail what was viewed as the largely meritless litigation (money damages suits for mental or emotional injury) being pursued by a group of people (prisoners) who face uniquely low opportunity costs in pursuing such litigation. This broad understanding of the congressional design actually imputes two, interrelated motives to Congress. In enacting the PLRA, Congress sought to (1) conserve judicial resources, and (2) continue to allow prisoners to pursue meritorious litigation.
108
First, Congress sought to preserve judicial resources by enacting a series of measures that function as gate-keepers to the district courts.16 Prior to the enactment of the PLRA, 28 U.S.C. § 1915(d) was the only gate-keeping mechanism that district courts had at their disposal to screen out frivolous prisoner lawsuits. That section allowed a court to dismiss a case, sua sponte, if the court was "satisfied that the action [was] frivolous or malicious." 28 U.S.C. § 1915(d) (1994). Because Congress deemed section 1915(d) inadequate to safeguard judicial resources from the onslaught of prisoner lawsuits, it enacted several provisions of the PLRA to serve as heightened gate-keepers.
109
28 U.S.C. § 1915(b), for example, qualifies a prisoner's right to bring a civil action in forma pauperis by requiring partial payment of the filing fee up-front, and then monthly payments to cover the balance of the fee. This provision increases the costs of bringing a civil action for the prisoner, and thus makes it more likely that prisoners will only bring suits that have some merit. Certainly, section 1915(b) will decrease prisoner "filings." But why is that, in the view of Congress, a good thing? The answer, of course, is because fewer "filings" means fewer judicial resources expended on prisoner lawsuits. The ultimate goal is not just to decrease prisoner "filings;" the goal is to save the judiciary the expenditure of time and resources.
110
The same is true of section 1997e(e). The requirement that prisoners demonstrate physical injury serves as a gate-keeping mechanism by screening out a certain class of cases-cases in which a prisoner seeks damages for mental or emotional injury only. This raises the bar on a prisoner who wants to bring a damages action while incarcerated, by forcing the prisoner to demonstrate an element (physical injury) that is not necessarily required to state a claim for relief under the Eighth Amendment.17 Thus, the district courts' resources are preserved for cases in which a prisoner can demonstrate physical injury. A court is empowered to make an up-front determination of whether the prisoner has alleged injury sufficient to meet the section 1997e(e) requirement; if not, then the case can be disposed of without substantially taxing the court's resources.
111
The second purpose animating the PLRA is Congress' desire to continue to allow prisoners to pursue meritorious litigation. The legislative history is replete with examples of frivolous prisoner lawsuits that were so ridiculous that they would be humorous, but for the fact that they were constituting a serious drain on judicial resources. See, e.g., 141 Cong. Rec. S7498-01, S7524 (daily ed. May 25, 1995) (statement of Sen. Dole) ("[P]risoners have filed lawsuits claiming such grievances as insufficient storage locker space, being prohibited from attending anniversary party, and yes, being served creamy peanut butter instead of the chunky variety they had ordered."); 141 Cong. Rec. S14408-01, S14418 (daily ed. Sept. 27, 1995) (statement of Sen. Hatch) ("In one frivolous case ..., an inmate sued demanding that he be issued Reebok or L.A. Gear brand shoes instead of the Converse brand being issued. In another case, an inmate deliberately flooded his cell, then sued the officers who cleaned up the mess because they got his Pinochle cards wet."); 141 Cong. Rec. S14611-01, S14626 (daily ed. Sept. 29, 1995) (statement of Sen. Reid) (among "top 10 lawsuits in Nevada filed by prisoners," were claims that the prisoner should not be required to open his window slot when meals are served, that the delivery of mail interfered with prisoner's usual sleeping pattern, and that the prisoner was given a size five tennis shoe, when the actual size of his foot was four and three-fourths). It is this class of litigation, frivolous prisoner lawsuits, that Congress sought to screen out. Congress had no intent to prevent meritorious suits filed by prisoners from being adjudicated in the courts.
112
Section 1997e(e) perfectly illustrates the congressional desire to continue to allow prisoners to bring meritorious lawsuits. Congress could have eliminated all damages actions by plaintiffs confined in a jail, prison, or other correctional facility. This would certainly have been the most effective route if Congress' sole purpose in enacting the PLRA was to conserve judicial resources. But section 1997e(e) only affects actions brought solely for mental or emotional injury, and does not impair a prisoner's right to bring an action for physical injury. Why the distinction? Obviously, Congress made a determination that suits brought solely for mental or emotional injury were more likely to be without merit than cases in which a prisoner sustains some physical injury.
113
This determination certainly comports with traditional legal principles; tort law, for example, is notorious for redressing the claims of those who have undergone a nonconsensual "touching," while virtually ignoring those who claim to have suffered some damage from "verbal harassment." Because Congress wanted to conserve judicial resources while still allowing prisoners to pursue meritorious litigation, it identified a certain class of cases as being particularly likely to be without merit-cases in which prisoners sued for mental or emotional injury only-and then screened off those cases as not deserving of judicial consideration.
B.
114
My interpretation of section 1997e(e) is faithful to the congressional purpose of conserving judicial resources while still allowing prisoners to pursue meritorious claims. Consider a case in which a prisoner alleges that prison guards physically abused him, and seeks damages for both the physical injury, and the mental or emotional distress that resulted. In one scenario, the case will move along, the parties will engage in discovery, and the defendant will move for summary judgment, contending that the prisoner has failed to demonstrate physical injury and that the case should therefore be dismissed. Before the court rules on the defendant's motion, assume that the plaintiff is released from incarceration, and seeks to supplement his complaint to notice the fact of his release and to delete his allegation of physical injury.
115
If, as under my interpretation of section 1997e(e), the court has discretion to permit the supplement, then the court can adjudicate the plaintiff's claim for mental or emotional injury only. The section 1997e(e) bar will no longer apply, and the court can adjudicate the case in one proceeding. The judicial machinery will only be set in motion one time in order to dispose of the whole case.
116
Now consider a second scenario. It is entirely likely that many prisoners will be able to proffer enough evidence of physical injury to preclude the court from dismissing their claims for damages on motion for summary judgment. In that case, the issue of whether the prisoner suffered physical injury will go to trial. If a prisoner is released from incarceration during trial, then under my interpretation of section 1997e(e), the district judge will have discretion to allow the plaintiff to supplement his complaint, and to delete his allegation of physical injury. Because the court is able to exercise its discretion, the parties can litigate the claim for mental or emotional injury to final judgment. Again, the section 1997e(e) bar will no longer apply, and the court will only have to oversee one proceeding in order to dispose of the whole case.
117
The key to understanding this interpretation of section 1997e(e) is to realize that the value of the statutory provision, in terms of conserving judicial resources, depends on how quickly the district judge acts on a prisoner's complaint, specifically, the prisoner's allegation of physical injury. If the district judge can determine from the pleading that the prisoner has failed to allege physical injury sufficient to withstand the section 1997e(e) bar, then the litigation has not cost very much in terms of judicial resources. It is true that the prisoner will be able to re-file his claim for mental or emotional injury once he is released, and thus subject the judiciary to two, almost identical lawsuits. But the costs of dismissing the suit while the prisoner was incarcerated were not very high; therefore, the sanction of forcing the prisoner to re-file the case once he is released has not come at a high cost to the judiciary.
118
The further along the case proceeds, the more it costs in terms of judicial resources, and the closer the date of the prisoner's release from custody. If the case reaches the summary judgment stage or goes to trial, then a substantial amount of judicial effort has been invested in determining whether the prisoner suffered physical injury. If the prisoner is released from incarceration, and the court determines (either on summary judgment or at trial) that his evidence of physical injury is insufficient, the costs of dismissing the case, requiring the former prisoner to re-file it, and forcing the court to entertain the litigation all over again, impose a very high price on the judiciary. This is because once the case is re-filed, the court will have to address it anew. All of the court's work in determining whether the plaintiff suffered physical injury will have been for naught, because physical injury will no longer be an element of the plaintiff's claim. This seems like an exorbitantly high price to pay merely to extract a second filing fee from the plaintiff (who may not have to pay the filing fee after all, because he will likely be able to proceed in forma pauperis ). Thus, the sensible solution, and the solution obviously intended by Congress when it fashioned section 1997e(e) not to abrogate Rule 15(d), is to allow released prisoners to supplement their complaints and continue their lawsuits.
C.
119
Today's holding, on the other hand, requires a district court to engage in the administrative absurdity of dismissing a case no matter what stage the litigation has reached, and regardless of whether the plaintiff has been released from incarceration, and then entertain the case anew when the former prisoner files his action again.18 In the first scenario discussed above (where plaintiff seeks to supplement his complaint to notice the fact of his release and withdraw his allegation of physical injury before summary judgment is entered), the court's holding today will mean that the district court will lack discretion to permit the supplement. Thus, if the court resolves the issue of physical injury against the plaintiff-because it either treats the plaintiff's motion as a concession that the plaintiff cannot demonstrate physical injury, or grants partial summary judgment on the issue of physical injury-it will have to dismiss (without prejudice) the case under section 1997e(e). The plaintiff will immediately re-file, seeking damages for mental or emotional injury only. The court will then be forced to consider, in a second proceeding, the plaintiff's claim for mental or emotional injury, all because it had to dismiss the previous case under the court's holding today. All the court's work in the previous case will have been for naught.
120
The even worse scenario, of course, is where the prisoner's case actually goes to trial. If a court cannot grant the released prisoner's motion to supplement at trial, then the court faces the prospect of dismissing the case under section 1997e(e) (even though the plaintiff has been released from incarceration), and then adjudicating the case once again when the plaintiff re-files for mental or emotional injury. In this scenario, the court's holding today will force the district court to engage in a full-blown trial that will ultimately serve no purpose other than requiring the plaintiff to pay a second filing fee (in the event that he is ineligible for in forma pauperis status).
121
The majority's interpretation not only wastes judicial resources; it is also unfaithful to the second congressional purpose of continuing to allow prisoners to pursue meritorious lawsuits. If a prisoner is able to surmount the summary judgment hurdle-that is, convince a district judge that his claim for physical injury has enough evidentiary support to warrant a fact determination-then his case is meritorious by definition. Thus, by forcing district courts to dismiss a plaintiff's case whenever it becomes apparent that the plaintiff has suffered no physical injury (even if that determination is not made until trial), the court's holding punishes plaintiffs who did not violate section 1997e(e). It is at least arguable that if a plaintiff can get by summary judgment on the issue of physical injury, then he did not bring a case "for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e).19 It therefore seems odd to punish a plaintiff (by dismissing his case and forcing him to pay a second filing fee) after his release from incarceration, when the action, as originally brought, was meritorious. The majority punishes a whole class of plaintiffs (those who bring meritorious cases) who Congress never intended to subject to punishment.
122
In addition to unduly taxing district court resources, the court also imposes a burden on defendants to defend the action all over again when plaintiffs re-file. After the defendant has already invested enormous amounts of time and money in defending the lawsuit, why would the defendant ever want the court to dismiss the case without resolving all of the plaintiff's claims? If the court dismisses the action, then the plaintiff will re-file, and the defendant will have to defend a second time. Because a defendant will most likely want the court to address the plaintiff's whole case (including the plaintiff's claim for mental or emotional injury only) in one proceeding, the defendant may request the court to grant the plaintiff's motion to supplement and carry the case to final judgment. If the court granted the defendant's request, its ruling would be insulated from appellate review under the invited error doctrine.
123
The majority's sole justification for imposing on the district courts' scarce resources is that a prisoner who violates section 1997e(e) must be made to suffer some "burden, inconvenience, or expense," ante at 2747. The sum total of this "burden, inconvenience, or expense" comes down to this: the former prisoner will have to pay a second filing fee when he re-files his claims for mental or emotional injury. There are two reasons why the majority's "burden, inconvenience, or expense" may be no burden at all.
124
First, because the PLRA will no longer apply, it is likely that many former prisoners will not have to pay a second filing fee, because they will be entitled to file in forma pauperis under 28 U.S.C. § 1915(a)(1). Second, even if they do have to pay the fee, this punishment will have been extracted at a disproportionate cost to the judiciary, and the defendant. As discussed above, if the district judge is forced to dismiss the case at summary judgment or trial (even though the plaintiff has been released from incarceration, and thus relieved of the burden of demonstrating physical injury), then all the time and resources invested by the court and the defendant will have been wasted. When one compares the cost of a second filing fee to the plaintiff with the costs today's decision imposes upon the judicial system, one wonders exactly who the majority seeks to punish in this case.
IV.
125
For the foregoing reasons, I dissent from the court's holding that section 1997e(e) of the PLRA required the district court to dismiss plaintiffs' complaint, even though that section no longer applies to plaintiffs because they are no longer prisoners within the meaning of the Act. I would reinstate fully the panel opinion in this case, vacating the district court's dismissal of claims for compensatory and punitive damages for plaintiffs Chadwick, Harris, Cook, Hooks, Nation, and Dailey, and remanding the case to the district court for further proceedings.
126
I concur in the court's judgment insofar as it reinstates those parts of the panel opinion that dispose of the claims of plaintiffs Locklear, Kilgore, Langes, Brinkley, and Wade.
NOTES:
1
The only issues remaining in this case involve plaintiffs Danny Chadwick, Frederick Harris, Lenois Cook, Willie Hooks, Farrell Nation, and William Dailey. All references to "plaintiffs" herein refer to these six plaintiffs only.
2
I concur in the majority opinion insofar as it reinstates those parts of the panel opinion that dispose of the claims of plaintiffs Samuel Locklear, Alan Kilgore, Leroy Langes, Dayton Brinkley, and James Wade. See Harris v. Garner, 190 F.3d 1279, 1281-84, 1285-90, vacated and reh'g en banc granted, 197 F.3d 1059 (11th Cir.1999).
3
The complaint was filed against "Wayne Garner, Commissioner of the Georgia Department of Corrections; A.G. Thomas, Director of Facilities Division of the Georgia Department of Corrections; Duke Blackburn, Executive Assistant, Special Operations of the Georgia Department of Corrections; and Twenty-Two Unnamed Tactical Squad Officers of the Georgia Department of Corrections, in their individual and official capacities."
4
In this context, a prison "shakedown" is a systematic search of a correctional institution during which prison officials search for illegal drugs and other contraband by means of body cavity searches, searches of inmates' living quarters, and searches of other areas of the institution. For details regarding the alleged "shakedown," see Harris, 190 F.3d at 1282-83.
5
42 U.S.C. § 1997e(e) only precludes prisoners from bringing actions for compensatory and punitive damages. It does not apply to actions for declaratory or injunctive relief. See Harris, 190 F.3d at 1287-89.
6
The panel stated that the magistrate judge and district court treated the complaint as "amended" for purposes of noticing plaintiffs' release from custody. Harris, 190 F.3d at 1284. Technically, this was an error since the magistrate judge and district court actually treated the complaint as "supplemented" under Rule 15(d); plaintiffs release from custody was a "transaction[ ] or occurrence[ ] or event[ ] which ... happened since the date of the [original] pleading," Fed.R.Civ.P. 15(d), and not an event which happened prior to the date of the original complaint. Only prior events are properly treated as amendments under Rule 15(a). The error is substantively unimportant, however. See Glatt v. Chicago Park Dist., 87 F.3d 190, 194 (7th Cir.1996) (holding that the standard applied to cases in which parties seek to supplement their pleadings under Rule 15(d) is the same as the standard applied to cases in which plaintiffs seek to amend their pleadings under Rule 15(a)).
7
I am thus uncertain why the majority is not "entirely convinced that the complaint was actually amended." Ante at 2743. The majority appears suspicious of the panel's conclusion that "the magistrate judge treated the complaint as amended" to reflect the fact of plaintiffs' release from the GDC, Harris, 190 F.3d at 1283, because
[n]o motion to amend the complaint was filed, and neither the magistrate judge nor the district court said the complaint had been amended. The plaintiffs did file a motion to withdraw their request for injunctive relief, which simply acknowledged that there was no longer any need for an injunction in view of their release. But the court did not formally rule on that motion. Instead, the magistrate judge (whose recommendations were adopted by the district court without relevant change) concluded: "These plaintiffs cannot obtain monetary relief because they alleged only mental or emotional injuries and their injunctive claims are moot since they have been released from prison."
Ante at 2743 n. 10. The majority recognizes that plaintiffs did file a motion alerting the court that they had been released from custody, and seeking to withdraw their claims for injunctive relief because their release had mooted such claims. Therefore, it is simply not true that "[n]o motion to [supplement] the complaint was filed." Id. The motion was not titled "MOTION TO SUPPLEMENT PLAINTIFFS' COMPLAINT TO REFLECT THE FACT OF PLAINTIFFS' RELEASE FROM CUSTODY, AND TO ALERT THE DISTRICT COURT THAT PLAINTIFFS ARE NO LONGER SUBJECT TO 42 U.S.C. § 1997e(e);" plaintiffs' motion concerned, instead, their claims for injunctive relief (not covered by section 1997e(e)). But it is clear that the magistrate judge treated the complaint as supplemented for the purpose of determining whether section 1997e(e) applied to plaintiffs' claims for compensatory and punitive damages, even though plaintiffs were no longer incarcerated; the record reflects that the magistrate judge (1) recognized in his report and recommendation to the district court that plaintiffs had been released from the custody of the GDC, and (2) recommended dismissal of plaintiffs' claims for compensatory and punitive damages based on the erroneous conclusion that " § 1997e(e) is applicable to the claims of prisoners who have been released." The district court, in its order adopting the magistrate judge's recommendations, likewise treated plaintiffs' complaint as supplemented to reflect the fact of plaintiffs' release, but nevertheless dismissed plaintiffs' complaint under an erroneous reading of section 1997e(e).
There is no doubt that the magistrate judge and the district court had the power, even the obligation, to treat plaintiffs' complaint as supplemented to reflect the fact of their release. See Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 229- 30, 9 L.Ed.2d 222 (1962) (courts have an obligation to read the parties' pleadings with the intent of the parties in mind); cf. Fed.R.Civ.P. 15(b) (allowing parties to amend their pleadings to conform to the evidence, either at trial or even after judgment, and stating that "[i]f evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits"). The majority's assertion that "the requirements of Rule 15(d) were not met," ante at 2743-44, is curious. In Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976), the Supreme Court made clear that Rule 15(d)'s "requirements" should not be read to impede a decision on the merits because of a technical error or omission. In Mathews, as in the instant case, "[t]here was no [formal] motion to supplement the pleadings." Ante at 2744 n. 11. Despite this omission, the Supreme Court held that
"[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." 28 U.S.C. § 1653. Although the defect in [plaintiff's] allegations must be cured by supplemental pleading, instead of amended pleading, the statutory purpose of avoiding needless sacrifice to defective pleading applies equally to this case.... Despite [plaintiff's] failure to supplement the complaint, the District Court was aware that he had filed his application; since the Secretary stipulated that the application had been filed, the defect in the pleadings surely did not prejudice him.
Mathews, 426 U.S. at 75 n. 9, 96 S.Ct. at 1889 n. 9 (citations omitted) (emphasis added). As in Mathews, the district court in the instant case was obviously aware of the critical fact (that plaintiffs had been released from incarceration), since plaintiffs filed a motion alerting the court that they had been released from custody, and seeking to withdraw their claims for injunctive relief. Also, there is no reasonable argument that the court's allowance of a motion to supplement the complaint in any way prejudiced the defendants, since defendants cited Zehner v. Trigg, 952 F.Supp. 1318 (S.D.Ind.1997) (holding that section 1997e(e) applies to the claims of prisoners who have been released from custody), in their motion to dismiss plaintiffs' complaint. Defendants, therefore, anticipated that plaintiffs' release would require them to convince the court that section 1997e(e) should bar plaintiffs' claims for mental or emotional injury, even though plaintiffs were no longer incarcerated. Treating Rule 15(d) as if it has certain "requirements" that can never be waived by the district court, even if waiver would facilitate a proper decision on the merits, does not comport with the concept of notice pleading, and the purpose behind the Federal Rules. See infra at 2755-61 (discussing the 1963 amendment to Rule 15(d) and the philosophy of the Federal Rules of Civil Procedure).
8
In its discussion of the statutory language, the majority suggests that one line of cases, interpreting the full payment provision of the PLRA, does more than establish that "brought" means "commenced." 28 U.S.C. § 1915(b)(1) (1994 & Supp. II 1996) provides that
if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of-
(A) the average monthly deposits to the prisoner's account; or
(B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.
In Gay v. Texas Dept. of Corrections State Jail Div., 117 F.3d 240 (5th Cir.1997), and in Robbins v. Switzer, 104 F.3d 895 (7th Cir.1997), the Fifth and Seventh Circuits held that this part of the PLRA requires former prisoners to pay amounts due under the statute through the time of their release in order to continue prosecuting claims filed while in custody. This interpretation of section 1915(b)(1) makes sense because, as the D.C. Circuit has observed, if a prisoner has not complied with the filing fee provisions of the statute, he still has "past due, unmet obligations" even if he is later released. In re Smith, 114 F.3d 1247, 1251-52 (D.C.Cir.1997). All of the circuits interpreting section 1915(b)(1) recognize that the statute ceases to apply when a prisoner is released; it has not been applied to require prisoners to pay fees that would accrue after the prisoner is released. As the D.C. Circuit held in Smith,
[plaintiff's] liability for the PLRA fees that should have been paid prior to his release from prison under § 1915(b) [should] be calculated, and [plaintiff] must pay that amount.... However, [plaintiff] may rely on in forma pauperis status for the balance of the filing fee ..., as his current poverty does not pose a bar to relief, except with respect to past due amounts under the PLRA that were assessed based upon a calculation that Smith had means to pay them when due.
Id. at 1252 (citations omitted); see also Robbins, 104 F.3d at 898 ("[I]f according to the trust account statements [plaintiff] could (and therefore should) have paid $50 at the time he filed his appeals, and the trust accounts received no income before his release, then he must pay $50 now and may apply for in forma pauperis status on the balance. How much [plaintiff] actually must prepay depends on the application of the formula in § 1915(b) to the balances and income of his trust account through the day of his release."). It is reasonable to require former prisoners to meet past due obligations that constitute a condition precedent to their ability to bring suit, even after they have been released from custody. The full payment provision of section 1915(b)(1) is not being applied to them as former prisoners, but as persons who have incurred a debt that has not yet been satisfied. In the instant case, the majority uses section 1997e(e) to bar plaintiffs claims, even though the statute no longer applies in their cases. The majority's analogy would work if Congress had provided for a civil fine for violations of section 1997e(e) (e.g., a fine of $10 for each pre-release filing); in that circumstance, even after his release a former prisoner would still owe the fine for filing while incarcerated, because the fine owed would constitute a past due amount. But it seems odd to suggest, as the majority does, that plaintiffs in the instant case are owed a "past due dismissal" because they filed while incarcerated. Cf. Murphy v. Magnusson, No. Civ. 98-439-P-C., (D.Me. July 27, 1999) (refusing to dismiss plaintiff's claim filed while incarcerated even though plaintiff had not complied with the administrative exhaustion requirement of 42 U.S.C. § 1997e(a), because plaintiff had since been released from custody; "where Plaintiff could immediately refile his claims without exhausting administrative remedies ... it would not serve judicial efficiency to dismiss Plaintiff's Complaint. Because circumstances have changed such that Plaintiff is no longer required ... to exhaust administrative procedures, the Court will not now require Plaintiff to exhaust available administrative remedies.").
9
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
10
The majority makes the remarkable assertion that the approach taken in M.G.B. Homes is "problematic," and suggests that the "continuing validity" of the case may be in doubt in light of the Supreme Court's decision in Freeport-McMoRan, Inc. v. KN Energy, Inc., 498 U.S. 426, 111 S.Ct. 858, 112 L.Ed.2d 951 (1991). Ante at 2747. Freeport-McMoRan had nothing to do with a federal court's ability to allow a plaintiff to supplement his complaint to cure a jurisdictional defect in the original pleading when, as in M.G.B. Homes and in the instant case, the court's jurisdiction is premised on the existence of a federal question. In that case, the Supreme Court merely reaffirmed the longstanding rule that "diversity of citizenship is assessed at the time the action is filed.... [I]f jurisdiction exists at the time an action is commenced, such jurisdiction may not be divested by subsequent events." Id. at 428, 111 S.Ct. at 860. As I explain infra at 2759-60 n. 11, the issue of diversity jurisdiction implicates unique considerations that do not apply in cases in which the federal court's jurisdiction is premised on the existence of a federal question. It seems odd for the majority to assert casually that the "continuing validity" of M.G.B. Homes is in doubt, when the only evidence the majority cites for that proposition is a Supreme Court case that is clearly inapposite.
11
The majority analogizes the instant case to a situation in which the federal court has jurisdiction over a claim only because of the diversity of the parties' citizenship, and states, correctly, that "only citizenship of the original parties ... matters for purposes of determining whether diversity jurisdiction exists." Ante at 2746. The unique considerations involved in addressing the existence of diversity jurisdiction, including concerns over parties acting strategically to defeat the statutory requirement, see Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 2403, 57 L.Ed.2d 274 (1978), make necessary a "brightline policy of determining diversity as of the date of commencement of the action." 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3608 (2d ed.1984).
This is not a diversity case, but a case in which our jurisdiction is premised upon the existence of a federal question of no less than constitutional dimension; plaintiffs sued for violations of their Fourth, Eighth, and Fourteenth Amendment rights. Therefore, the diversity analogy is inapposite. The distinction between diversity and federal question jurisdiction, as it relates to the issue of whether parties can supplement their pleadings to cure a jurisdictional defect, is made clear by the myriad cases I cite that allow plaintiffs to supplement their original complaints with notice that, since filing, they have fulfilled the jurisdictional prerequisites to bring suit. These cases include Supreme Court precedent which explicitly states, in a case in which the Court's jurisdiction was premised on the existence of a federal question, that
"[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." 28 U.S.C. § 1653. Although the defect in [plaintiff's] allegations must be cured by supplemental pleading, instead of amended pleading, the statutory purpose of avoiding needless sacrifice to defective pleading applies equally to this case.
Mathews, 426 U.S. at 75 n. 9, 96 S.Ct. at 1889 n. 9.
The majority is correct to note that just as this is "not a diversity case ..., neither is it a social security case or a copyright case." Ante at 2747. But that is not the point. The point is that this is a case in which our jurisdiction is premised on the existence of a federal question, and not a case in which we have jurisdiction only because the parties are diverse. Plaintiffs did not attempt to supplement their complaint to notice the fact of their acquired diversity; they sought to supplement their complaint to notice the fact that a federal law (section 1997e(e)) no longer applies in their case.
12
The majority calls this "no remedy" at all, ante at 2747, because the practical effect of such a holding is that plaintiffs who have been released from incarceration following their violation of section 1997e(e) will suffer no sanction (other than the burden of alerting the court to the fact of their release). The majority states, "[w]e disagree, because we do not think the way to enforce congressional enactments is by removing any burden, inconvenience, or expense from those who violate them." Ante at 2747. Much like the rest of the majority opinion, this sounds good at first blush but it is ultimately without substance. First, the judicial task is to enforce Congress' enactments as written, not to dream up "burden[s], inconvenience[s], [and] expense[s]" to levy on those who violate the congressional command. Where Congress has given us no indication that the remedy we would like to pursue is available under the statute, then it is a violation of the separation of powers for us to enact a remedial scheme that was never envisioned by the legislature. Second, for all its grandstanding about the need to sanction disobedient plaintiffs, the sum total of the "burden[s], inconvenience[s], [and] expense[s]" that the majority has imposed is a second filing fee on plaintiffs, when they re-file their suit after being released from incarceration. Finally, as discussed infra in Part III, the real "burden[s], inconvenience[s], [and] expense[s]" that flow from the majority's holding are going to be visited upon the judiciary, when courts are forced to dismiss suits (sometimes at summary judgment or at trial), and then go through the administrative nightmare of entertaining the same suit again when the plaintiff re-files his action.
13
The absence of textual support (and the resort to congressional intent) becomes especially apparent when the majority attempts to distinguish Mathews and all the other cases I cite for the proposition that plaintiffs in the instant case should be allowed to supplement their complaint under Rule 15(d) of the Federal Rules of Civil Procedure. See ante at 2745-46. The difference between all of those cases and the instant case, we are told, is that "in this case permitting the plaintiffs to proceed would undermine the statutory purpose of prohibiting these types of claims...." Ante at 2746. "Congressional intent" is a tricky thing. Ever since the Legal Realist movement of the early 20th Century, scholars have criticized the whole concept of a legislative "intent" or "purpose" as undiscoverable at best, and at worst, a facade used by activist judges that can be endlessly manipulated in the service of a judge's personal policy preferences. See, e.g., Max Radin, "Statutory Interpretation," 43 Harv. L.Rev. 863, 870-71 (1930) ("That the intention of the legislature is undiscoverable in any real sense is almost an immediate inference from a statement of the proposition. The chances that several hundred men each will have exactly the same determinate situations in mind as possible reductions of a given [statutory issue], are infinitesimally small.... Even if the contents of the minds of the legislature were uniform, we have no means of knowing that content except by the external utterances or behavior of these hundreds of men, and in almost every case the only external act is the extremely ambiguous one of acquiescence, which may be motivated in literally hundreds of ways...."). Perhaps this is one reason why, in recent years, the federal courts have turned more and more to focus on the text of a statute, as opposed to the statutory purpose (often revealed in the legislative history). Though congressional intent (and legislative history) still have a legitimate place in the interpretive enterprise, this court has embraced the notion that we should always begin with the statutory text, and that where the congressional command is clear, we should follow the statute as enacted. See United States v. Gilbert, 198 F.3d 1293, 1298 (11th Cir.1999) ("We begin our construction of the Hyde Amendment where courts should always begin the process of legislative interpretation, with the words of the statutory provision themselves."); Kay v. Apfel, 176 F.3d 1322, 1325 (11th Cir.1999) ("We begin, as we must, with the statutory text itself."); United States v. Pielago, 135 F.3d 703, 712 (11th Cir.1998) ("We begin, as always, with the text of the Sentencing Guidelines."); Hunter v. United States, 101 F.3d 1565, 1574 (11th Cir.1996) ("We begin where courts interpreting statutory and rule provisions should, with the language of the provisions.").
In the instant case, it is clear that Congress did not abrogate Rule 15(d) when it enacted section 1997e(e). No such abrogation is mentioned in the statutory text. Therefore, under our normal mode of statutory interpretation, we would allow plaintiffs to supplement their complaint to notice the fact of their release, and continue their lawsuit against employees of the GDC. This result is certainly not "absurd," such that we might be entitled to reformulate the statute. See Rector, Holy Trinity Church v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892). The result the majority reaches, requiring a court to dismiss and then open the plaintiffs' case anew when plaintiffs re-file their action, seems far more bizarre than simply allowing the suit to continue since section 1997e(e) no longer applies in the case. Because the text is clear, and the obvious result is not absurd, it is troubling that a court that has so adamantly embraced a textualist mode of statutory interpretation should now base its decision almost entirely on statutory "purpose." See ante at 2746. The difference between the majority position and my own is not "crystalized in [my] proposition that a prisoner who files his claim in direct contravention of section 1997e(e) while he is incarcerated ought to be allowed to continue with that claim after release, because '[p]risoners who are released while their suit is still pending immediately begin to face the same opportunity costs of prosecuting their action as everyone else.' " Ante at 2745. The fact that the majority thinks that this is the crucial difference only exposes the degree to which the majority has eschewed the text of section 1997e(e), and has gotten carried away by considerations of policy.
14
Aside from the majority's bald assertion that "the Seventh Circuit would reach ... the same [result as the majority reaches today,]" ante at 2737 (thus invoking the "thin air" doctrine, see Carlisle v. United States, 517 U.S. 416, 429, 116 S.Ct. 1460, 1468, 134 L.Ed.2d 613 (1996)), there is no indication that the Seventh Circuit would agree with the majority's holding today under the reasoning of Kerr. In that case, Judge Easterbrook went on at some length about the need for courts to "implement the [statutory] language actually enacted." Kerr, 138 F.3d at 323. In response to the district court's argument that "common sense" necessitated that section 1997e(e) bar the claims of former prisoners who had been released from custody, the court responded:
"Common sense" is a treacherous guide to statutory interpretation. One person's "common sense" is another's bete noire. Statutes are compromises among legislators who may hold incompatible conceptions of the public weal. Some legislators opposed the PLRA outright; others wanted more sweeping restrictions on prisoners' litigation; the actual statute satisfied few completely. Instead of relying on "common sense", which is an invitation to treat the law as if one side or the other had its way, a court should implement the language actually enacted-provided the statute is not internally inconsistent or otherwise absurd.
Id. How this language could support the majority's contention that we should extend the PLRA to cover suits by former prisoners to whom the statute no longer applies, by reading the statute to preclude supplemental pleadings to notice the fact of the prisoners' release, escapes me.
15
I dislike frivolous prisoner litigation as much as my colleagues do. Suits that are truly meritless (such as Eighth Amendment claims that prisoners have a constitutional entitlement to chunky peanut butter, see 141 Cong. Rec. S14408-01, S14413 (daily ed. Sept. 27, 1995) (statement of Sen. Dole)) impair the courts' judicial resources, and increase overall delay-at both the trial and appellate levels-in a circuit that is already extraordinarily burdened. Frustration with frivolous lawsuits, however, does not give us the authority to enact legislation to cure the problem. We are bound by Congress' enactments, and where Congress has spoken to the question of remedies, we may go no further.
16
In enacting the PLRA, Congress also sought to preserve state court resources. Because this case focuses on litigation in the federal courts, I tailor my remarks accordingly.
17
As Justice Blackmun wrote in Hudson v. McMillian, "[i]t is not hard to imagine inflictions of psychological harm-without corresponding physical harm-that might prove to be cruel and unusual punishment." He cited as an example, "Wisniewski v. Kennard, 901 F.2d 1276, 1277 (5th Cir.) (guard plaining revolver in inmate's mouth and threatening to blow prisoner's head off), cert. denied, 498 U.S. 926, 111 S.Ct. 309, 112 L.Ed.2d 262 (1990)." Hudson v. McMillian, 503 U.S. 1, 16, 112 S.Ct. 995, 1004, 117 L.Ed.2d 156 (1992) (Blackmun, J., concurring).
18
As opposed to the majority's somewhat exotic hypothetical where a prisoner is confined, and then released, and then picked up again and jailed, and then bailed out, and then returned to prison, ante at 2741, the spectacle of a court dismissing an action, just so it can entertain the action again when the former prisoner files his action anew is not hypothetical; it is the result of the majority opinion.
19
There are two ways that one could read section 1997e(e)'s proscription on bringing suits for mental or emotional injury suffered while in custody without a prior showing of physical injury. One could interpret the provision as precluding a prisoner from bringing all damages actions in which the trier of fact does not ultimately find that the prisoner suffered physical injury. Alternatively, one could read the statute as precluding only those lawsuits in which the prisoner does not have enough evidence of physical injury to get past summary judgment. It seems unlikely that Congress intended the first interpretation. The issue of whether the prisoner intentionally violated section 1997e(e) would become irrelevant to the statutory construction, because if the prisoner has enough evidence of physical injury to surpass the summary judgment hurdle, he obviously did not intend to violate the statute when he filed his suit. If a district court does not grant summary judgment to the defendant, then when the prisoner brought the action, the case was meritorious enough to preclude a district judge from throwing it out. Whether the prisoner's violation of section 1997e(e) was intentional, however, must at least play some role in our interpretation; this is because, as discussed supra, in enacting section 1997e(e) Congress only intended to screen out frivolous suits from the district courts' dockets. The focus was on punishing those prisoners who repeatedly abuse the judicial process by filing claims that are patently without merit. This does not mean that we should impose some mens rea requirement on the functioning of section 1997e(e). But the issue of intent, as it relates to whether a prisoner's case is so frivolous that he obviously knew he was violating section 1997e(e) when he brought the action, is relevant to determining whether a violation has actually occurred.
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652 F.Supp. 1394 (1987)
Michael R. PIAZZA and Eleanor M. Piazza, Plaintiffs,
v.
CARSON CITY, et al., Defendants.
No. Civ. R-86-268 BRT.
United States District Court, D. Nevada.
February 3, 1987.
*1395 Madison & Works (Wm. J. Works), Carson City, Nev., for plaintiffs.
Davenport & Perry, Robert H. Perry, Reno, Nev., for Dunn.
Charles P. Cockerill, Chief Deputy Dist. Atty., Carson City Dist. Atty's. Office, Carson City, Nev., for Carson City, Bandera, Waters and Loomis.
ORDER DENYING MOTION TO DISBAR PLAINTIFFS' ATTORNEYS
BRUCE R. THOMPSON, District Judge.
Defendant Hal V. Dunn, prompted by his attorney, Robert H. Perry, has filed, in camera, on November 24, 1986, a motion to disbar William Works and Gerald Madison from practicing before the United States District Court for the District of Nevada. The motion is filed as a procedural step in the action entitled above, which was commenced to vindicate alleged deprivations of plaintiffs' civil rights by defendants.
The motion to disbar is hotly contested by Madison and Works and there appears to be a substantial evidentiary dispute respecting the three charges of professional misconduct, i.e., subornation of a false affidavit of a witness, procurement of a false affidavit from Mr. Madison, and failure to disclose a partial settlement proposal to their clients, the plaintiffs.
In bringing the motion to disbar, defendant relies upon Fed.R.Civ.P. 11, and L.R. 100-3, 120-8 and 130-6.
Rule 11 Fed.R.Civ.P. permits the imposition of sanctions for the bad faith misconduct of counsel including "an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee." It was never contemplated that an "appropriate sanction" under the rule would be disbarment from practice.
Similarly, the "sanctions authorized by statute or rule" permitted by Rule 100-3 of the Local Rules of Practice for the United States District Court for the District of Nevada do not encompass the discipline of disbarment from practice before the court.
L.R. 120-8 is the rule which treats specifically of "Ethical Standards, Disbarment, Suspension and Discipline" of attorneys admitted to practice before this court. The rule states:
(a) The standards of conduct of the members of the bar of this court, of nonresident Government attorneys, and of nonresident attorneys admitted to practice before this court in a particular case shall be those prescribed by the Code of Professional Responsibility and the Model Rules of Professional Conduct as such may be adopted from time to time by the Supreme Court of Nevada *1396 except as such may be modified by this court. Any member of the bar of this court who violates the aforementioned standards of conduct may be disbarred, suspended from practice for a definite time, reprimanded or subjected to such other discipline as the court may deem proper. This subsection is not a restriction on the court's contempt power.
(b) Whenever any member of the bar of this court or any other attorney admitted to practice before this court has been:
(1) Disbarred or suspended from practice by the Supreme Court of the State of Nevada or the highest court of the State, Commonwealth or territory or of the District of Columbia in which he/she regularly practices law or has been convicted of a felony in any court, such attorney shall be suspended forthwith from practice before this court; or
(2) Transferred to disability inactive status on the grounds of incompetency or disability by the Supreme Court of the State of Nevada or the highest court of the State, Commonwealth or territory or of the District of Columbia in which he/she regularly practices law, such attorney shall be placed on disability inactive status;
unless good cause to the contrary is shown, there shall be entered after notice and an opportunity for a hearing, an order of disbarment or suspension or transfer to disability inactive status, for such time as the court may fix.
It is noteworthy that the rule provides no procedural machinery for the initiation in this court of a disbarment proceeding except for the last sentence of Rule 120-8(b)(2), supra, which applies only after discipline has been ordered "by the Supreme Court of the State of Nevada or the highest court of the State, Commonwealth or territory or the District of Columbia in which he/she regularly practices law." The failure to provide such procedural machinery in the local rules was not accidental. It was deliberate. The rules contemplate that serious charges of professional misconduct which might lead to suspension or disbarment from practice should be processed pursuant to the procedures established by Rules 99 to 119 of the Rules of the Supreme Court of the State of Nevada.
L.R. 120-8(a) specifically acknowledges the availability of the contempt power to sanction less serious professional misconduct of an attorney and, of course, many provisions of the Federal Rules of Civil Procedure provide for sanctions in specific instances of procedural violations.
This is not to say that the judges of this court are precluded from consideration of a motion or petition pursuant to L.R. 120-8(a), supra, looking toward the disbarment, suspension, reprimand or other discipline of an attorney admitted to practice before this court if the judge or judges, in his or their discretion, deem it appropriate to do so. If such a situation should occur, procedures may be devised by special order to conform with the requirements of due process. Absent an exceptional case, however, discipline contemplating disbarment or suspension should be processed under the rules of the Supreme Court of the State of Nevada.
This very case is a prime example of the wisdom of this course. If this court should undertake to try the charges and counter-charges made in the bulky written representations of counsel, this procedure might well take longer than the trial of the principal action. The rights of the litigants should not be disregarded or impaired by embarking on this sort of collateral undertaking.
It is clear that a disbarment order from the Supreme Court of Nevada would not be binding upon this court but would be entitled to great weight. Clark v. State of Washington, 366 F.2d 678 (9th Cir.1966). Accordingly, L.R. 120.8(b)(2) provides for notice to the attorney and an opportunity for a hearing if a petition for disbarment is predicated upon a prior order of the Supreme *1397 Court of Nevada. Thus the requirements of due process are fulfilled. In re Los Angeles County Pioneer Society, 217 F.2d 190 (9th Cir.1954).
We recognize that in Ceramco, Inc. v. Lee Pharmacuticals, 510 F.2d 268 (2d Cir. 1975), the Second Circuit made a strong statement which facially imposes upon this court the duty to try and decide motions for disbarment:
The disqualification order is properly before this court. The district court was incorrect in its view that the various bar associations constitute the only proper forum for investigation of a claim of professional misconduct. On the contrary, the courts have not only the supervisory power but also the duty and responsibility to disqualify counsel for unethical conduct prejudicial to his adversaries. See, e.g., General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir.1974); Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 496 F.2d 800 (2d Cir.1974) (en banc); Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir.1973). Further, as we made clear in Silver Chrysler Plymouth, Inc., supra, 496 F.2d at 805-806, an order denying disqualification of counsel is "a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it" and is thus directly appealable under the doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
After so stating, however, the court proceeded to summarize all the circumstances of that case and found that "while counsel's behavior is not to be commended ... the typical situation in which disqualification has been found to be an appropriate remedy has involved a conflict of interest such that continued representation by chosen counsel clearly prejudiced the rights of the opposing party and ... posed a substantial threat to the integrity of the judicial process." The court concluded:
In sum, Ceramco's counsel's actions, while demonstrating an unfortunate, insensitivity to the etiquette of the bar, had no possibility of so prejudicing the opponent that the firm should be barred from the case entirely or the client punished by precluding reliance on counsel's work product. Accordingly, if any corrective action is to be taken, it should be accomplished under the auspices of the appropriate bar association and should in no way be permitted to affect the decision on the merits of the case.
The present motion by defendant Dunn, under the guise of invoking attorney discipline, would have this court decide in such a collateral proceeding a critical issue of the credibility of a witness, Kathy Russell. So to proceed would not only be disruptive of orderly processing of this action but might infringe the rights of the parties to a jury trial wherein the jurors would have this same issue of credibility for their determination. We do not, of course, condone the charged misconduct of plaintiffs' counsel, if true, but, as observed in Lee Pharmacuticals, supra, the continued representation of plaintiffs by present counsel will not prejudice the rights of defendants or pose a substantial threat to the integrity of the judicial process.
In consideration of the premises,
IT HEREBY IS ORDERED that the motion to disbar Madison and Works, attorneys, is denied without prejudice to any proceedings which may be initiated pursuant to the rules of the Supreme Court of the State of Nevada.
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Filed 7/11/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 188
State of North Dakota, Plaintiff and Appellee
v.
Dennis Shipton, Defendant and Appellant
Nos. 20190040 & 20190041
Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Donald Hager, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Chief Justice.
Max W. LaCoursiere, Assistant State’s Attorney, Grand Forks, ND, for
plaintiff and appellee; submitted on brief
Dennis Shipton, self-represented, Terre Haute, IN, defendant and appellant;
submitted on brief.
State v. Shipton
Nos. 20190040 & 20190041
VandeWalle, Chief Justice.
[¶1] Dennis Gene Shipton appealed from district court orders summarily dismissing
his petition for a writ of error coram nobis and his motion to reconsider. We affirm.
I
[¶2] In April 1993, Shipton pleaded guilty to possession of methamphetamine with
intent to deliver and possession of marijuana with intent to deliver. Pursuant to N.D.
Sup. Ct. Admin. R. 19, the case files were destroyed in 2007. Shipton filed a petition
for a writ of error coram nobis on October 22, 2018. The petition alleged violations
of the Fifth Amendment and ineffective assistance of counsel based on counsel’s
failure to seek dismissal on the grounds of double jeopardy. Shipton did not allege
newly discovered evidence.
[¶3] In its order, the district court noted that North Dakota does not recognize a writ
of error coram nobis and instead would treat the petition as one for post-conviction
relief. After applying post-conviction relief standards, the court summarily dismissed
Shipton’s petition as untimely and frivolous. Shipton filed a motion to reconsider,
arguing that the State prejudiced him by prematurely destroying records from his
cases. The court denied Shipton’s motion.
II
[¶4] North Dakota “will treat [a petition for writ of error coram nobis] as one for
post-conviction relief under Chapter 29-32, North Dakota Century Code, the Uniform
Post-Conviction Procedure Act.” State v. Lueder, 242 N.W.2d 142, 144 (N.D. 1976).
Post-conviction relief proceedings are civil in nature and governed by the North
Dakota Rules of Civil Procedure. Atkins v. State, 2019 ND 146, ¶ 4, 928 N.W.2d 438.
This Court has explained that summary dismissal of an application for post-conviction
1
relief “is analogous to dismissal of a civil complaint under N.D.R.Civ.P. 12(b) for
failure to state a claim upon which relief can be granted.” Chase v. State, 2017 ND
192, ¶ 6, 899 N.W.2d 280. On appeal from a dismissal under N.D.R.Civ.P. 12(b)(6),
this Court construes the application in the light most favorable to the applicant,
accepting the well-pleaded allegations as true. Id. We will affirm a dismissal for
failure to state a claim “if it would be impossible for the applicant to prove a claim for
which relief can be granted.” Id. “A petitioner for post-conviction relief has the
burden of establishing grounds for post-conviction relief.” Atkins, at ¶ 4.
[¶5] A petitioner must file an application for post-conviction relief within two years
of the date the conviction becomes final. N.D.C.C. § 29-32.1-01(2). An exception to
the two-year time limit exists if the petitioner alleges the existence of newly
discovered evidence. N.D.C.C. § 29-32.1-01(3)(a)(1). “Post-conviction relief may be
granted when ‘evidence, not previously presented and heard, exists requiring vacation
of the conviction or sentence in the interest of justice.’” Kovalevich v. State, 2018 ND
184, ¶ 4, 915 N.W.2d 644 (quoting N.D.C.C. § 29-32.1-01(1)(e)). An application
alleging newly discovered evidence must be filed within two years of the date the
petitioner discovers or reasonably should have discovered the existence of the new
evidence. N.D.C.C. § 29-32.1-01(3)(b).
III
[¶6] Shipton bears the burden of establishing grounds for post-conviction relief.
Atkins, 2019 ND 146, ¶ 4, 928 N.W.2d 438. In this case, Shipton filed his petition
twenty-five years after his 1993 convictions. To allow this Court to examine his
petition past the two- year statutory limitation for post-conviction relief, Shipton
needed to allege newly discovered evidence that, “if proved and reviewed in light of
the evidence as a whole, would establish [he] did not engage in the criminal conduct
for which [he] was convicted.” N.D.C.C. § 29-32.1-01(3)(a)(1). Neither Shipton’s
petition nor the record suggest newly discovered evidence.
2
[¶7] Shipton alleges the destruction of the case files from his 1993 conviction
prejudiced him. However, the record shows Shipton was unaware of the destruction
of the case files in 2007 when he filed his 2018 petition. Shipton only learned the files
had been destroyed when the State noted the destruction in its answer to his petition.
More importantly, any evidence included in the 1993 case files would have already
been known or reasonably should have been discovered by Shipton. See N.D.C.C. §
29-32.1-01(3)(b). No new evidence existed within the case files and the State did not
err in destroying the files. Without newly discovered evidence, Shipton has failed to
meet his burden for post-conviction relief.
IV
[¶8] The orders of the district court are affirmed.
[¶9] Gerald W. VandeWalle, C.J.
Jon J. Jensen
Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
3
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576 F.3d 791 (2009)
UNITED STATES of America, Appellee,
v.
Anthony SISCO, Appellant.
No. 07-3161.
United States Court of Appeals, Eighth Circuit.
Submitted: February 12, 2009.
Filed: August 14, 2009.
*792 Floyd A. White, Jr., Kansas City, MO, argued, for appellant.
Kathleen D. Mahoney, Asst. U.S. Atty., Kansas City, MO, argued (John F. Wood, U.S. Atty., on the brief), for appellee.
*793 Before RILEY, SMITH, and SHEPHERD, Circuit Judges.
SMITH, Circuit Judge.
Anthony Sisco pleaded guilty to possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), as part of a written plea agreement. This plea agreement contained a waiver of appellate rights. Despite this waiver, Sisco argues on appeal that the district court[1] committed procedural errors in setting his 480-month sentence. We enforce the waiver and dismiss Sisco's appeal.
I. Background
Police came to Sisco's apartment in Kansas City, Missouri, to investigate an alarm. The officers noticed a strong smell of acetone coming from the apartment and saw marijuana on a coffee table in the living room. While officers were clearing the apartment, Sisco arrived and told officers that he lived alone in the apartment. The police arrested Sisco, who then consented to a search of his apartment. Officers recovered 51.69 grams of cocaine base (i.e. "crack cocaine"), 2.99 kilograms of marijuana, 20.10 grams of powder cocaine, $5,850 in United States currency, four guns with ammunition, three scales, and drug paraphernalia.
A federal grand jury indicted Sisco with possession with intent to distribute 50 grams or more of crack cocaine. As part of a written plea agreement, Sisco entered a plea of guilty to the lesser included offense of possession with intent to distribute five grams or more of crack cocaine. Sisco remained on pre-trial supervision pending sentencing.
Sisco's plea agreement contained a waiver of his right to appeal his sentence on any ground except a sentence imposed in excess of the statutory maximum or an illegal sentence. The plea agreement contained the following relevant provisions:
6.a. in determining the appropriate sentence, the Court will consult and consider the United States Sentencing Guidelines promulgated by the United States Sentencing Commission; these Guidelines, however, are advisory in nature, and the Court may impose a sentence either less than or greater than the defendant's applicable Guidelines range, unless the sentence imposed is "unreasonable[.]"
* * *
6.d. the Court may impose any sentence authorized by law, including a sentence that is outside of, or departs from, the applicable Sentencing Guidelines range....
* * *
15.b. The defendant expressly waives his right to appeal his sentence, directly or collaterally, on any ground except a sentence imposed in excess of the statutory maximum or an illegal sentence, that is, sentencing error more serious than a misapplication of the Sentencing Guidelines, an abuse of discretion, or the imposing of an unreasonable sentence.
* * *
19. If the defendant commits any crimes, violates any conditions of release, or violates any term of this plea agreement between the signing of this plea agreement and the *794 date of sentencing, or fails to appear for sentencing, or if the defendant provides information to the Probation Office or the Court that is intentionally misleading, incomplete, or untruthful, or otherwise breaches this plea agreement, the United States will be released from its obligations under this agreement. The defendant, however, will remain bound by the terms of the agreement, and will not be allowed to withdraw his plea of guilty.
Before sentencing and while on pre-trial release, Sisco was charged with first degree murder, first degree assault, and two counts of armed criminal action in connection with a shooting that occurred in Kansas City, Missouri. Video surveillance at the Filling Station Bar and Grill showed Sisco and his brother, Sylvester Sisco, arguing with two other bar patrons. The Sisco brothers then each pulled out a firearm and shot one of the patrons several times. Police found the victim dead on the bar floor. The video further revealed that, after the shooting, Sisco struck another bar patron on the head with his firearm several times, rendering the patron unconscious. The Sisco brothers then fled the scene in separate vehicles. Later, they surrendered to police.
Based upon Sisco's conduct, the government filed a motion to declare Sisco in breach of his plea agreement, alleging that the state law crimes Sisco committed in Kansas City, Missouri, while on supervised release violated the condition of Sisco's federal plea agreement that prohibited the commission of "any crime." Sisco denied any breach of his plea agreement.
A preliminary presentence investigation report (PSR) issued before the Missouri charges had concluded that Sisco's Guidelines range was 121 to 151 months. After the Missouri charges, a revised PSR concluded that Sisco should not receive a three-level reduction for acceptance of responsibility and set his Guidelines range from 168 to 210 months. The government also filed notice that if the court found that Sisco breached his plea agreement, the government would seek an upward departure based on U.S.S.G. §§ 4A1.3 ("Departures Based on Inadequacy of Criminal History Category") and 5K2.0(a)(2) (Departures Based on Circumstances of a Kind Not Adequately Taken into Consideration).
At sentencing, Sisco did not oppose the government's motion to withdraw from the plea agreement. The government then filed a motion for an upward departure. The government entered into evidence the surveillance videotapes that showed Sisco and his brother at the bar shooting the unarmed victim eight times. Based on this evidence, the district court granted the government's motion to depart upward based upon an understated criminal history and sentenced Sisco to the maximum term of 480 months' imprisonment for the narcotics charges.
II. Discussion
Sisco argues on appeal that the district court erred in sentencing him to 480 months' imprisonment contrary to the agreed term stated in his plea agreement. Sisco contends that the court should not have enhanced his sentence "based merely on charged misconduct for which there had been no trial or other adjudication of guilt." The government responds that the appeal waiver in Sisco's plea agreement is valid and should be enforced. We agree and hold that Sisco's plea agreement and waiver are valid and, therefore, preclude any review on the merits.
*795 A. Plea Agreement and Waiver of Appellate Rights
A plea agreement is essentially a contract between the government and the defendant. United States v. Andis, 333 F.3d 886, 890 (8th Cir.2003). A defendant may waive his appellate rights pursuant to that agreement. Id. at 889. We have held that "[w]hen reviewing a purported waiver, we must confirm that the appeal falls within the scope of the waiver and that both the waiver and plea agreement were entered into knowingly and voluntarily." Id. at 889-90. But, we will not enforce a waiver that results in a "miscarriage of justice." Id. at 890. The burden of proof is on the government to prove that "a plea agreement clearly and unambiguously waives a defendant's right to appeal." Id. Any ambiguities in the agreement are construed against the government. Id. Whether a valid waiver of appellate rights occurred is a question of law that we will review de novo. United States v. Young, 223 F.3d 905, 909 (8th Cir.2000).
Sisco argues that the government breached its plea agreement duty not to seek an upward departure. The government counters that Sisco knowingly and voluntarily waived his right to appeal and that he cannot now challenge the sentence imposed unless he establishes that the sentence is illegal or constitutes a miscarriage of justice. To determine whether the waiver is enforceable we first must determine whether Sisco's appeal falls within the waiver's scope. If it does, we must then determine whether Sisco knowingly and voluntarily waived his appellate rights. Finally, we must determine whether the resulting sentence imposed would result in a miscarriage of justice. Only if we conclude that Sisco did not waive his right to appeal will we examine Sisco's argument that the government breached his plea agreement by seeking an enhanced sentence.
1. Scope of Waiver
Sisco pleaded guilty pursuant to a written plea agreement to possession with intent to distribute five grams or more of crack cocaine. At sentencing, the district court sentenced Sisco to the statutory maximum of 480 months' imprisonment, departing upward from the Guidelines range of 168 to 210 months. The district court departed upward based upon the unobjected to facts in the PSR and evidence introduced by the government showing Sisco's conduct that led to state murder charges while he was released pending sentencing in this case. The court permitted the government to seek an upward departure based upon Sisco's violation of his plea agreement conditions of release. The court concluded that Sisco's criminal history was understated and enhanced his sentence to account for his new state criminal charges.
Sisco's appeal waiver is broad and specifically states that Sisco "expressly waives his right to appeal his sentence, directly or collaterally, on any ground except a sentence imposed in excess of the statutory maximum or an illegal sentence, that is, sentencing error more serious than a misapplication of the Sentencing Guidelines, an abuse of discretion, or the imposition of an unreasonable sentence." The sentence imposed, while lengthy, does not exceed the statutory maximum for the crime of conviction. Nor is the sentence imposed an illegal sentence. We have repeatedly held that, in the face of a valid appeal waiver, any sentence within the statutory range is not subject to appeal. Andis, 333 F.3d at 892; United States v. Benitez-Diaz, 337 F.3d 1080, 1082 (8th Cir.2003). Sisco's argument on appeal that the district court erred in departing upward from *796 the Guidelines is not a ground excepted by the plea agreement. Sisco's appeal falls within the scope of the waiver.
2. Knowingly and Voluntarily
We have held that for a plea agreement to be valid, the defendant must enter into the agreement knowingly and voluntarily. DeRoo v. United States, 223 F.3d 919, 923 (8th Cir.2000). Examples where an agreement may be entered into without the requisite knowledge and voluntariness include an agreement entered upon the ineffective assistance of counsel or undue coercion. Andis, 333 F.3d at 890. In Andis, we stated that a district court can help ensure that a plea agreement and corresponding waiver are entered into knowingly and voluntarily by "properly question[ing] a defendant about his or her decision to enter that agreement." Id. at 891.
Here, the district court conducted the plea colloquy in which Sisco acknowledged reading the plea agreement, discussing it with his attorney, and signing it. The district court asked Sisco if he was under the influence of alcohol or narcotics to which he replied, "No, sir." The court asked Sisco if he had any concerns or complaints about the legal representation of his attorney to which Sisco replied, "No, sir." The court asked Sisco if he had read the agreement and discussed it with his attorney. Sisco replied, "Yes, sir." Sisco stated that no one had forced him to enter the agreement. Finally, the district court emphasized to Sisco that the plea agreement included a waiver of Sisco's right to appeal for a finding of guilt and his right to appeal his sentence. Sisco acknowledged understanding these consequences. Based on this colloquy, we hold that Sisco knowingly and voluntarily entered into the plea agreement.
3. Miscarriage of Justice
We will not enforce an "otherwise valid waiver if to do so would result in a miscarriage of justice." Id. Because waivers are contractual agreements between the government and the defendant, we will not lightly void these agreements. Id. Therefore, the "miscarriage of justice" exception is a narrow one that may arise in only limited contexts. Id. at 891-92. For example, we have held that a defendant may appeal an illegal sentence despite a valid waiver. Id. at 891-92. A sentence is illegal where it exceeds the statutory maximum. Id. at 992 (citing United States v. Greatwalker, 285 F.3d 727, 729 (8th Cir. 2002)). But "[a]ny sentence imposed within the statutory range is not subject to appeal." Id. at 892. Any appeal challenging a statutory sentence "should be summarily dismissed based on [the] waiver." Id. at 893. Sisco does not argue that the sentence is illegal because it exceeds the statutory maximum. Rather, Sisco argues that the sentence is unreasonable based upon an alleged Guidelines departure error committed by the district court in arriving at the statutory maximum.
The record shows that the court accepted the PSR factual allegations and the evidence introduced by the government to show that Sisco had engaged in conduct that violated his release conditions and his plea agreement. In assessing criminal history, the sentencing judge may take into account charged offenses as well as convictions. U.S.S.G. § 4A1.3(a)(2)(D) (stating that information forming the basis for upward departure may include "[w]hether the defendant was pending trial or sentencing on another charge at the time of the instant offense."); see also United States v. Collins, 104 F.3d 143, 145 (8th Cir.1997) (holding that "[u]ncharged conduct can properly be considered when departing under U.S.S.G. § 4A1.3"). The *797 government presented a videotape that captured the initial altercation between the Sisco brothers and their victims. The video showed in graphic detail Sisco and his brother fatally shooting a victim and dragging a second victim. The video also shows Sisco beating the second victim with a handgun until the victim became unconscious. Moreover, Sisco did not object to the findings in the revised PSR that detailed the slaying and subsequent assault. We have held that "unless a defendant objects to a specific factual allegation contained in the PSR, the [district] court may accept that fact as true for sentencing purposes." United States v. Moser, 168 F.3d 1130, 1132 (8th Cir.1999). The relative brevity of the sentencing hearing alone does not establish that the sentence ultimately imposed was illegal. Based on this record, it was not a miscarriage of justice for the district court to find that Sisco's criminal history was understated when unobjected-to and uncontradicted evidence demonstrate that he shot and killed one victim and pistol-whipped another victim. This conduct certainly represents an unusual and egregious circumstance of a kind not adequately taken into account under § 5K2.0.
Sisco also argues that because the plea agreement did not outline his appellate rights in the event of a breach, the agreement should be construed against the government. Sisco's assertion that "ambiguities [in the plea agreement] are construed against the government" is correct. Andis, 333 F.3d at 890. But Sisco's plea agreement, knowingly and voluntarily entered, is not ambiguous. The plea agreement expressly states as follows:
19. If the defendant commits any crimes, violates any conditions of release, or violates any term of this plea agreement between the signing of this plea agreement and the date of sentencing, or fails to appear for sentencing, or if the defendant provides information to the Probation Office or the Court that is intentionally misleading, incomplete, or untruthful, or otherwise breaches this plea agreement, the United States will be released from its obligations under this agreement. The defendant, however, will remain bound by the terms of the agreement, and will not be allowed to withdraw his plea of guilty.
According to the plea, Sisco "will remain bound by the terms of the agreement" even if he breaches the agreement. The agreement is unambiguous. Sisco's breach of the agreement did not absolve him of his duties thereunder.
Sisco's breach of his plea agreement released the government from its duty to not seek an enhanced sentence, but it did not restore to Sisco the appeal rights he expressly waived. Sisco's actions did not render the entire plea agreement a legal nullity. If that were so, any defendant dissatisfied with the terms of his plea agreement could violate a condition and unilaterally declare its remaining terms unenforceable. In United States v. Young, we held that the government could use statements made during plea negotiations at trial despite a breach of the plea agreement by the defendant. 223 F.3d 905, 907, 911 (8th Cir.2000). The defendant pleaded guilty to conspiracy to distribute and possession with intent to distribute methamphetamine. Id. at 907. The defendant executed an affidavit admitting each element of the crimes charged. Id. After executing the plea agreement, but before sentencing, the defendant was arrested for absconding from pre-trial supervision. Id. The government informed the defendant that it intended to introduce the affidavits at trial. Id. at 908. The defendant filed a *798 motion in limine to exclude the affidavits. Id. The district court agreed with the defendant finding that he did not knowingly waive his Federal Rule of Criminal Procedure 11(e)(6) and Federal Rule of Evidence 410 protections because the defendant was not made aware of these rights in the plea agreement. Id. On appeal, we held that the defendant knowingly and voluntarily waived his rights under the plea agreement. Id. at 911. The government was entitled to the "benefit of its bargain," and we allowed the use of the affidavit at trial. Id.
Here, Sisco knowingly and voluntarily entered into the plea agreement. As in Young, Sisco's unawareness of the precise consequences in the event of his plea breach does not make the waiver of appeal unknowing. Id. The agreement expressly states that, in the event of breach, the government would be released from its obligations but Sisco would "remain bound by the terms of the agreement." The government acted consistent with the plea agreement when it moved for an upward departure. Sisco validly waived his appeal rights. The consequences of Sisco's appeal waiver are severe, but, given the record in this case, it is not unjust. The district court's application of the Guidelines was covered by the waiver, and Sisco has not shown that the sentence ultimately imposed was illegal or constituted a miscarriage of justice under existing applicable precedent.
III. Conclusion
Accordingly, we dismiss this appeal.
NOTES
[1] The Honorable Gary A. Fenner, United States District Judge for the Western District of Missouri.
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406 F.2d 1259
69-1 USTC P 9226
George G. ABRAHAM and Herbert Abraham, Trustees of theAbraham Trust, Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee.
No. 18470.
United States Court of Appeals Sixth Circuit.
Feb. 13, 1969.
Taylor Malone, Jr., Memphis, Tenn., for plaintiffs-appellants.
Lester B. Snyder, Dept. of Justice, Washington, D.C., for defendant-appellee; Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, William A. Friedlander, Marco S. Sonnenschein, Attys., Dept. of Justice, Washington, D.C., on brief; Thomas L. Robinson, U.S. Atty., Memphis, Tenn., of counsel.
Before WEICK, Chief Judge, and O'SULLIVAN and EDWARDS, Circuit judges.
EDWARDS, Circuit Judge.
1
This case presents a single legal issue: Where a trust instrument provides the trust with the normal characteristics of a corporation and gives the trustees the normal powers necessary to conduct business, do these facts require that the trust be regarded as an 'association' which is taxable like a corporation, even though its actual activities are consistent with those of a liquidating trust?1
2
Chief Judge Bailey Brown, sitting in the United States District Court for the Western District of Tennessee, answered this question affirmatively and granted appellee's motion for summary judgment.
3
Except for a conflict of opinion in the decided cases in this circuit, we would affirm on Judge Brown's well-reasoned opinion. Abraham v. United States, 272 F.Supp. 807 (W.D.Tenn.1967).
4
The background facts of this case are not in dispute. The District opinion recites them thus:
5
'Plaintiffs, George G. Abraham, and Herbert Abraham, Trustees of the Abraham Trust, have sued the defendant, United States of America, for a refund of federal income taxes in the amount of $70,054.63 for the taxable years ending October 31, 1960, through October 31, 1963, which the Abraham Trust paid under protest. These income taxes were assessed as a result of the Internal Revenue Service's determination that the Abraham Trust was an association taxable as a corporation, under the Internal Revenue Code of 1954, 7701, and Treasury Regulations 301.7701.
6
'For a period of approximately forty years prior to May 20, 1950, Abraham Bros. Packing Company (Abraham Bros.), a Tennessee corporation, was engaged in Memphis, Tennessee, in the business of slaughtering and processing livestock and in packing and selling meat, meat products, and meat by-products. In the operation of this business, Abraham Bros. owned a plant and premises, consisting of certain real estate, buildings, machinery, and other improvements, together with railroad sidings and sewage facilities. The business was a closely-held family corporation which, in 1950, had about five hundred employees.
7
'For various reasons, the officers and stockholders of Abraham Bros. decided to cease operating as a meat packinghouse and on May 20, 1950, the corporation leased its packing plant to Wilson & Co., Inc. The lease covered certain real estate, buildings, machinery, and equipment and was for an initial term of twety years at an annual rental of $100,000 for each of the first two years and $80,000 per year thereafter. At the expiration of the initial term, Wilson & Co. had an option under the lease to purchase the leased property for $500,000, and as an alternative, the lessee had the option to renew for an additional twenty years on the same terms and conditions, except that the rental was to be reduced during this second twenty-year period to $32,150.04 per year. At the end of the second twenty-year period, Wilson & Co. had the option to purchase the leased property for $100,000. If Wilson & Co. failed to purchase, the leased property was to revert to its owners. In general, the obligations with respect to the leased property, such as paying real estate taxes, fell on the lessee, although some remained with the lessor. As an example of the latter, during the first fifteen years of the lease, if it became necessary to erect facilities as a substitute for or an adjunct to the public sewage facilities, such installation was to be the joint responsibility of the lessor and lessee. On May 23, 1950, Wilson & Co. took possession of the premises, rehired most of the five hundred former employees of Abraham Bros., retained George G. Abraham, one of the plaintiff trustees, as General Manager of the plant, and began making monthly payments to Abraham Bros. as provided for in the lease.
8
'On October 30, 1050, the Board of Directors of Abraham Bros. voted to liquidate the corporation in not more than two years, and notice of the adoption of the plan of liquidation was given to the Commissioner of Internal Revenue as required by law.
9
'On October 27, 1952, the stockholders of Abraham Bros., of whom there were over thirty, voted to direct the appropriate officers of the corporation to surrender its charter and this was done two days later. At this same meeting, the stockholders considered and approved a document entitled 'Agreement and Declaration of Trust,' which authorized the appropriate officers to convey all the assets of the corporation to Ben Abraham, George Abraham and George G. Abraham, as Trustees of the Abraham Trust, and this was done forthwith. The terms of this trust agreement are set forth hereafter.
10
'In the early part of 1963, after negotiations among Wilson & Co., Inc., John Morrell & Co., and the trustees, the lease was terminated by agreement and the leased property was sold by the Abraham Trust to John Morrell & Co. for a cash payment of $500,000 and assumption of a mortgage on the leased property, the balance of which was $309,557.87. The proceeds of this sale were paid to the beneficiaries of the trust as final distributions.
11
'From 1950 until its dissolution in 1952, Abraham Bros. filed corporate income tax returns and paid income taxes; from 1953 through 1959, the trustees have filed only fiduciary income tax returns and have paid no income tax. However, after an audit, the Internal Revenue Service determined that the Abraham Trust was an association taxable as a corporation and it was able to and did assess deficiencies in corporate income taxes and interest for the 1960-1963 taxable years in the total amount of $70,054.63. Plaintiffs thereupon filed corporate returns for these years and paid these taxes, all under protest. On April 21, 1965, claims for refund for the aforesaid amount were filed, these claims were disallowed, and plaintiffs thereafter instituted suit in this court.' Abraham v. United States 272 F.Supp. 807, 808-09 (W.D.Tenn.1967).
12
The trust agreement provided for distribution of trust shares to the more than 30 former corporate shareholders in exact proportion to their stockholdings. It provided for transferability of the trust shares. It provided for division of the trust income. It provided for liability as to trust shareholders to be limited to the value of their shares. And the management of the trust was centralized in three trustees, who held title to trust property as a continuing body. The trust agreement also provided for a seventy-five year life for the trust which could be extended.
13
These are, with one addition, the exact criteria described in the leading case, Morrissey v. Commissioner of Internal Revenue, 296 U.S. 344, 56 S.Ct. 289, 80 L.Ed. 263 (1935), in which Chief Justice Hughes defined when a trust is an 'association' for purposes of federal income tax laws (now Int.Rev.Code of 1954 7701, and Treas.Reg. 301.7701).2
14
The additional requirement for a trust to be considered an 'association' for purposes of section 7701 is, in the language of Morrissey, that it be 'an enterprise for the transaction of business.' Morrissey v. Commissioner of Internal Revenue, supra at 356, 56 S.Ct. at 295. And in a companion case, Chief Justice Hughes defined how that determination was to be made:
15
'We agree with the Circuit Court of Appeals that weight should be given to the purpose for which the trust was organized, but that purpose is found in the agreement of the parties. Not only were they actually engaged, as the Board of Tax Appeals determined, in carrying on an extensive business for profit, but the terms of the trust instrument authorized a wide range of activities in the purchase, improvement and sale of properties in the cities and towns of the state. The parties are not at liberty to say that their purpose was other or narrower than that which they formally set forth in the instrument under which their activities were conducted.' Helvering v. Coleman-Gilbert Associates, 296 U.S. 369, 373-374, 56 S.Ct. 285, 287, 80 L.Ed. 278 (1935).
16
Applying the test of these cases, which have never been overruled or modified, we find broad powers to conduct business conveyed to the Abraham trustees by the trust instrument:3
17
'The trustees shall have entire control and management of the trust property to be conveyed to it, subject to any and all outstanding leases thereon. They shall collect any and all rents due under any and all outstanding leases, and shall perform all of the obligations and undertakings of the landlord in such outstanding leases. They may further convey good and valid title to any real estate conveyed to them under this trust, if any options to purchase the same which may be outstanding are exercised. They may also sell any property or any part thereof not covered by outstanding lease or option contracts on such terms and at such times and on such conditions as they may think best. They are hereby authorized to borrow money for temporary exigencies, or for erecting any buildings on any lands which may be conveyed to them hereunder, in such manner and upon such terms as they think best; and they are authorized to execute and deliver their notes as trustees for any such sums borrowed. They may also execute deeds of trust or mortgage securities for any sums so borrowed.
18
'No purchaser, mortgagee, lessee or lender shall be responsible for the application of money paid as grant or otherwise to the trustees, or loaned to the trustees. The trustees may exchange land and purchase additional land if in their judgment the same should be necessary. They may grant releases and acquire easements of any kind and character over any land to be conveyed to them or hereafter acquired by them. They may maintain, at the expense of the trust, suitable offices for the transaction of the business of the trust, if such be necessary; and may incur such other expenses, including, but without limitation, the right to engage employees, agents and servants and lawyers as they may think best; and they may execute, acknowledge and record any and all instruments necessary or convenient for the purposes of this trust. They may make any and all such contracts and do any and all such things as they think best for the maintenance, management and operation of the trust property and of the trust, and are authorized to pay any expenses necessary to the conduct and operation of this trust out of the assets thereof.
19
'The trustees shall collect any and all income arising from the rental, sale, or other disposition of the trust property. They shall annually, or oftener in their discretion, divide the net income received from the trust property among the shareholders; Provided, however, that the trustees may set aside before paying any dividends whatever, such sums as they see fit for sinking funds or contingcy funds, to be applied to the repaying of loans made by the trustees or by their predecessors in title, whether secured or unsecured by mortgage on all or part of the trust property or otherwise; to the making of repairs or alterations in said property; and to meeting extraordinary expenses. They shall further pay any indebtedness, secured or unsecured by their predecessors in title which was outstanding at the time of the conveyance of the trust property to them. They may invest and reinvest any funds and any money coming into their hands in any assets or securities that they may see fit. The decision of the trustees as to what shall constitute not income shall be conclusive.'
20
Where such broad powers as these for conducting a business for profit have been carefully spelled out, we do not think they can be negated by the self-serving limiting declaration contained in the last paragraph of the trust instrument.4
21
We think it is clear that the Abraham trustees after transformation of the corporation into a trust in 1952 had all the requisite powers which were necessary to conduct the prior business (or other business) for profit under the express language of the trust instrument.
22
We do not, however, read appellants' brief as denying the breadth of the language of the trust instrument. The essential point appellants make is that whatever the trust instrument may have provided, the trustees and beneficiaries of the trust never intended to conduct a business for profit, and aside from the requirements for liquidating the original corporation and a few items more or less incidental thereto, they never in fact did so.
23
The District Judge specifically found that the trustees collected rents from Wilson & Co., sold certain properties, borrowed and repaid money, and operated a business office. If the trust instrument had limited the trustees to those activities which were required for normal liquidation of the prior corporation and activities incidental thereto, we doubt that the activities referred to above would have served to change a liquidating trust into an association taxable like a corporation. See United States .v Davidson, 115 F.2d 799 (6th Cir. 1940).
24
But the basis for our affirmance of the judgment of the District Court is the power granted to the trustees to conduct a business for profit rather than the acts performed by them in doing so. While we recognize that in some sense this seems to elevate form over substance, the problems with any other interpretation of the revenue code and regulations are substantial ones. Taxability of a trust set up with all the normal powers and incidents of a profit corporation should not depend upon the success or failure of those forming such a trust to find opportunities for the profitable conduct of business. The determination of what is or is not an 'association' for purposes of section 7701 must be made in accordance with the declared intentions of the persons setting up the trust in the trust instrument rather than by the favorable or unfavorable business opportunities or results which follow.
25
Appellants argue, and we readily concede, that the express language in Commissioner of Internal Revenue v. Gibbs-Preyer Trusts Nos. 1 & 2, 117 F.2d 619 (6th Cir. 1941), must be read as exactly contrary to the holding just expressed. In that case this court said:
26
'It is contended by the petitioner that it was not competent to controvert by parol testimony the plain terms of the written instruments creating the trusts and that the purpose of their creation and taxability as associations must be determined from the language appearing in the instruments. This concept must be rejected. The crucial test in determining whether a trust is an association, taxable as a corporation, must be found in what the trustees actually do and not in the existence of long unused powers.' Id. at 622-623.
27
As early as 1944, however, this court correctly recognized the thrust of the Morrissey case (Morrissey v. Commissioner of Internal Revenue, 296 U.S. 344, 56 S.Ct. 289, 80 L.Ed. 263 (1935)) saying:
28
'In theMorrissey case, supra, the supreme Court declared that the character of the trust was determined by the trust instrument, and pointed to many attributes of a corporation which we find characteristic of the trust in the instant case.' Sherman v. Commissioner of Internal Revenue, 146 F.2d 219, 225 (6th Cir. 1944).
29
This view has since been reiterated in Main-Hammond Land Trust v. Commissioner of Internal Revenue, 200 F.2d 308 (6th Cir. 1952), and in Scofield's Estate v. Commissioner of Internal Revenue, 266 F.2d 154 (6th Cir. 1959), both of which cases cited and relied upon the Morrissey decision.
30
We now expressly overrule the language quoted above from Commissioner of Internal Revenue v. Gibbs-Preyer Trusts Nos. 1 & 2.
31
The judgment of the District Court is affirmed.
1
The Treasury Regulations define a liquidating trust as follows:
'(d) Liquidating trusts. Certain organizations which are commonly known as liquidating trusts are treated as trusts for purposes of the Internal Revenue Code. An organization will be considered a liquidating trust if it is organized for the primary purpose of liquidating and distributing the assets transferred to it, and if its activities are all reasonably necessary to, and consistent with the accomplishment of that purpose. * * *' Treas.Reg. 301.7701-4(d).
2
Treasury Regulation 301.7701-2 states the criteria for determining whether an association is taxable like a corporation:
'(a) Characteristics of corporations. (1) The term 'association' refers to an organization whose characteristics require it to be classified for purposes of taxation as a corporation rather than as another type of organization such as a partnership or a trust. There are a number of major characteristics ordinarily found in a pure corporation which, taken together, distinguish it from other organizations. These are: (i) Associates, (ii) an objective to carry on business and divide the gains therefrom, (iii) continuity of life, (iv) centralization of management, (v) liability for corporate debts limited to corporate property, and (vi) free transferability of interests. Whether a particular organization is to be classified as an association must be determined by taking into account the presence or absence of each of these corporate characteristics. The presence or absence of these characteristics will depend upon the facts in each individual case. In addition to the major characteristics set forth in this subparagraph, other factors may be found in some cases which may be significant in classifying an organization as an association, a partnership, or a trust. An organization will be treated as an association if the corporate characteristics are such that the organization more nearly resembles a corporation than a partnership or trust. See Morrissey et al. v. Commissioner of Internal Revenue (1935) 296 U.S. 344, 56 S.Ct. 289, 80 L.Ed. 263.'
3
Cf. A.A. Lewis & Co. v. Commissioner of Internal Revenue, 301 U.S. 385, 57 S.Ct. 799, 81 L.Ed. 1174 (1937)
4
'This trust is created soley for the reason that Abraham Bros. Packing Company, a Tennessee corporation, is in process of liquidation. The trustees hereby declare that it is not their purpose to create a plan for carrying on business in the ordinary corporate sense. * * * The trust hereby created shall not be deemed or considered a trust operated for financial profit. * * *'
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0018n.06
Case No. 15-2445
FILED
UNITED STATES COURT OF APPEALS Jan 10, 2017
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
GARY WATKINS, )
)
Petitioner-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
JODI DEANGELO-KIPP ) MICHIGAN
)
Respondent-Appellant. )
) OPINION
)
BEFORE: CLAY, KETHLEDGE, and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. Prior to a jury trial for charges arising
from the murder of Quincy Varner, Gary Watkins submitted four times to psychiatric evaluation.
Though the first evaluator found him incompetent, subsequent evaluators found him competent
and criminally responsible for his actions. Despite his bizarre behavior during trial, including
exhibiting paranoid beliefs and urinating on a television screen, defense counsel did not request a
fifth psychiatric evaluation. A jury found Watkins guilty as charged. Nearly four years after
filing a timely habeas petition alleging ineffective assistance of counsel for “failure to investigate
and raise a defense,” Watkins filed an amended petition arguing ineffective assistance of counsel
for failure to request another psychiatric evaluation after Watkins’ conduct during trial. The
district court granted Watkins’ request for habeas relief. However, because Watkins cannot
Case No. 15-2445
Gary Watkins v. Jodie DeAngelo
establish that his amended petition relates back to his original petition or that he is entitled to
equitable tolling, we REVERSE the district court and DISMISS this portion of his petition as
untimely. Because we conclude that the petition is untimely, we decline to address the merits of
Watkins’ ineffective assistance of counsel claim.
I.
A jury convicted Watkins of second degree murder, two counts of felony-firearm
possession, and assault with intent to murder. Prior to trial, defense counsel requested that
Watkins be evaluated for competence to stand trial and for criminal responsibility. Watkins was
first evaluated on March 27, 2006 and was deemed incompetent to stand trial. During the
interview, Watkins refused to respond, verbally or otherwise, to the evaluator’s questions, so the
evaluator “was unable to formally assess his emotional, cognitive, or intellectual function,” and
had to rely on “collateral information.” March 27, 2006 Evaluation 3, 5, ECF. No. 15-23, Page
ID 885, 887. Specifically, the evaluator reviewed prison and hospital reports, which revealed
that: Watkins did not display behavioral problems until March 3, 2006 when he became hostile
with staff members who refused to give him pain medication, complained of weakness on the left
side of his body, and cried in his cell. He was then transported to the hospital, the reports said,
where it was determined that his actions appeared voluntary and were not the result of an organic
disorder. Several days later, the reports stated, Watkins was involuntarily hospitalized because
he began urinating on himself, stopped responding to staff, stopped eating, and became
combative with staff. He also began to say “bizarre” things, like claiming to be Jesus Christ, and
claiming his father was a demon who framed him for murder. Id. at 4, Page ID 886. Based on
the reports, the evaluator deemed Watkins incompetent to stand trial “at this time,” but
postulated that there was a “substantial probability” that Watkins could regain competency “if
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Case No. 15-2445
Gary Watkins v. Jodie DeAngelo
provided a structured, inpatient, hospital setting with provision for appropriate therapeutic
intervention.” Id. at 5, Page ID 887.
After several weeks of the suggested inpatient treatment, Watkins was deemed competent
to stand trial. During treatment, Watkins “indicated that he was unable to speak or hear, but his
behavior did not appear consistent with this.” April 13, 2006 Evaluation 2, ECF No. 15-22, Page
ID 840. For example, Watkins pleasantly interacted with other patients, the patients told staff
that Watkins spoke to them, and staff members, including the evaluator, observed Watkins
speaking. Though at times Watkins was combative with staff, he eventually started speaking
with them, and appeared “goal directed, logical and coherent” without signs of “disorientation or
confusion.” Id. The results of the psychological testing indicated “exaggeration and possible
malingering of psychopathology.” Id. The evaluator determined that Watkins was “capable of
working with his attorney in his defense” if he so chose.” Id. at 3, 841. Based on these
evaluations, the court found Watkins competent to stand trial.
At defense counsel’s request, the court ordered a third evaluation. This evaluator found
that Watkins was criminally responsible for his actions. The evaluator noted that Watkins was
uncooperative and unresponsive, combative with staff “in a seemingly unpredictable manner,”
and made allegations that the staff was trying to murder him. July 17, 2006 Evaluation 2, ECF
No. 17-1, Page ID 1151. The evaluator’s determination of criminal responsibility was based on
observation of Watkins’ behavior; Watkins’ previous hospitalizations and evaluations; an
interview with Watkins’ mother indicating Watkins’ increased paranoia in recent years; an
interview with Watkins’ probation officer, who spoke to Watkins in December 2005 and
indicated that Watkins was able to engage in a “logical and relevant manner”; and an interview
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Case No. 15-2445
Gary Watkins v. Jodie DeAngelo
with a detective who interviewed Watkins in January 2006 and indicated that Watkins was calm
and spoke clearly with a lot of detail. Id. at 4–6, Page ID 1153–55.
Defense counsel then moved for a fourth psychiatric evaluation, which the court granted.
The evaluator’s report is not in the record, but defense counsel stated that the evaluator found
insufficient evidence to make a finding of a lack of criminal responsibility.
The case proceeded to trial, during which Watkins made various bizarre outbursts. The
first morning of trial, the State expressed concerns that Watkins’ behavior posed a threat of
injury or escape. A county sheriff testified that Watkins had been combative with officers and
had thrown feces and urine at them. Watkins interjected: “I ain’t got no time for your games.
This ain’t no real court. Get me back to the real world. I’m going back to my wife and I’m
eating dinner.” Trial Tr. Vol. 1 10:10–13, Jan. 8, 2007, ECF No. 15-9, Page ID 406. He later
spit on the table. During jury selection, Watkins exclaimed, “Guilty” several times. Id. at 34:25,
40:17, Page ID 412, 414. When the court warned him about interjecting during jury selection,
Watkins flipped over the counsel table, and was removed to watch and listen to the proceedings
on a closed circuit television. While outside of the courtroom, Watkins spit on an officer and
urinated on the television. On the next day of trial, against counsel’s advice, Watkins took the
stand to testify, pronouncing, “I want Jesus to be my judge.” Trial Tr. Vol. 2 75:21, Jan. 9, 2007,
ECF No. 15-10, Page ID 545. He was convicted as charged.
On July 28, 2010, Watkins filed a pro se motion for equitable tolling, which the district
court denied as moot because the filing was, in fact, timely. So, the court construed the filing as a
petition for writ of habeas corpus because Watkins listed the claims he wished to raise in his
habeas petition. Watkins v. Haas, 143 F. Supp. 3d 632, 637–38 & n.4 (E.D. Mich. 2015). On
July 23, 2014, he then filed an amended habeas petition, which the district court granted. Id. at
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Case No. 15-2445
Gary Watkins v. Jodie DeAngelo
634. Without any analysis or explanation of the facts presented in the original petition, the
district court concluded that under Mayle v. Felix, 545 U.S. 644 (2005), Watkins’ supplemental
habeas petition related back to the original petition because the two petitions shared a “common
core of facts.” Watkins, 143 F. Supp. 3d at 640. With equally scant analysis, the court further
concluded that, regardless, Watkins would be entitled to equitable tolling of the statute of
limitations because his mental disability prevented his timely filing. Id.
Then, turning to the merits of the ineffective assistance of counsel claim, the district court
held that:
[i]n light of petitioner’s extensive history of mental and psychiatric problems, his
continued bizarre behavior and delusional or paranoid statements, his non-
responsive answers to some of the judge’s or counsel’s comments, and his utter
inability to cooperate with counsel or follow his advice, counsel was clearly
ineffective in failing to request an additional competency evaluation.
Id. at 643. Without addressing whether Watkins established the requisite element of prejudice,
the district court concluded that Watkins was entitled to habeas relief. Id.
II.
This court reviews de novo the district court’s determination regarding the timeliness of a
habeas petition. DiCenzi v. Rose, 452 F.3d 465, 467 (6th Cir. 2006).
A.
The parties do not dispute that Watkins’ supplemental habeas petition was filed after the
expiration of the statute of limitations. Rather, their disagreement centers on whether the
supplemental petition relates back to the date of the original petition. The State contends that it
does not. It argues that the original petition only raised a claim of ineffective assistance of trial
counsel for failure to investigate or present a defense before trial, which “is based on facts that
differ in time and type from a claim regarding the failure to request an evaluation based on
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Case No. 15-2445
Gary Watkins v. Jodie DeAngelo
behavior during trial.” CA6 R. 11, Appellant Br. at 34. In response, without mention of any of
the facts presented in the original petition, Watkins insists that the facts underlying the amended
petition “are simple, straightforward, and uncontroverted, and were clearly alleged in the original
pleading.” CA6 R. 18, Appellee Br. at 29.
An untimely amendment to a habeas petition “relates back” to an original petition filed
within the Antiterrorism and Effective Death Penalty Act’s (AEDPA) one-year limitations period
if the original petition and the amended petition arise out of the same “conduct, transaction, or
occurrence.” Fed. R. Civ. P. 15(c)(1)(B); see also 28 U.S.C. §§ 2242, 2244(d)(1). The Supreme
Court in Mayle defined the standard for relation back in the context of a habeas petition. There,
the petitioner argued that his amended petition, which alleged his Fifth Amendment rights were
violated during pretrial interrogation, related back to his original petition, filed pro se, where he
argued that the admission of videotaped evidence during trial violated his rights under the Sixth
Amendment’s Confrontation Clause. 545 U.S. at 648–49, 651–52. The Court emphasized that,
in filing the petition, the petitioner must specify all grounds for relief, stating the facts supporting
each ground. Id. at 649, 655, 661. Consequently, it held that an amended habeas petition does
not relate back to the original petition “when it asserts a new ground for relief supported by facts
that differ in both time and type from those the original pleading set forth.” Id. at 650. Rather,
to qualify for relation back, the original and amended petitions must “state claims that are tied to
a common core of operative facts.” Id. at 664. The Court cautioned not to read the “conduct,
transaction, or occurrence” requirement, so broadly as to render meaningless the statute of
limitations. Id. at 662–64. Turning to the facts of the case, the Court concluded that the
petitioner’s untimely amended petition did not relate back to the timely original petition because
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Case No. 15-2445
Gary Watkins v. Jodie DeAngelo
the two petitions “targeted separate episodes”: the pretrial interrogation of the witness, and the
petitioner’s own interrogation, which occurred “at a different time and place.” Id. at 660.
Though Mayle dealt with two separately designated claims—a Fifth Amendment
violation versus a Sixth Amendment violation—its reasoning equally applies to claims with the
same designation—here, ineffective assistance of counsel—that do not rely on the same common
core of operative facts, or that target separate episodes. For instance, in United States v. Clark,
637 F. App’x 206, 209 (6th Cir. 2016), the petitioner raised in his original petition a claim that
appellate counsel was ineffective for not challenging his career offender enhancement. We held
that the claim in the petitioner’s amended petition that appellate counsel was ineffective in not
challenging the drug amounts used to calculate the petitioner’s base offense level “was an
entirely new claim.” Id. Therefore, his amended petition did not relate back to his original
petition. Id.; see also Evans v. United States, 284 F. App’x 304, 305, 313 (6th Cir. 2008)
(concluding that the claim in the petitioner’s amended petition that trial counsel gave him
incorrect advice regarding the sentence he would receive through a plea agreement versus after
trial did not relate back to his timely petition raising ineffective assistance of counsel for failure
to pursue a particular avenue of impeachment); Cox v. Curtin, 698 F. Supp. 2d 918, 931 (W.D.
Mich. 2010) (“[A] petitioner does not satisfy the Rule 15 ‘relation back’ standard merely by
raising some type of ineffective assistance in the original petition, and then amending the petition
to assert another ineffective assistance claim based upon an entirely distinct type of attorney
misfeasance.” (quoting United States v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005))). But see
Cowan v. Stovall, 645 F.3d 815, 819 (6th Cir. 2011) (stating that the petitioner’s amended
petition would have related back to the original petition because they both asserted that counsel
was ineffective for failure to interview witnesses).
-7-
Case No. 15-2445
Gary Watkins v. Jodie DeAngelo
As an initial matter, Watkins’ original petition does not raise any facts supporting the
underlying ineffective assistance of counsel claim. The only portion of the petition relating to
ineffective assistance of counsel reads as follows: “Defendant was denied his state and federal
constitutional right to effective assistance of trial counsel, by counsels [sic] failure to investigate
and raise a defense, and also ineffective assistance of appellate, by counsel [sic] failure to raise
meritorios [sic] issues, and failure to perfect a competent appeal.” Original Habeas Petition 11,
ECF No. 1, Page ID 11. It says nothing of counsel’s failure to request another psychiatric
evaluation. It alleges only that trial counsel failed “to investigate and raise a defense.” Id.
Counsel’s conduct in investigating before trial and presenting a defense to the jury during trial is
a distinct “episode” from counsel’s conduct in not requesting that the judge order a fifth
psychiatric evaluation during trial. To read the original petition’s language more expansively
would contravene the Supreme Court’s warning against construing “conduct, transaction, or
occurrence” so broadly as to render meaningless AEDPA’s statute of limitations. See Mayle,
545 U.S. at 662–64. Watkins’ amended petition, therefore, does not relate back to the original
petition.
B.
Next, regarding Watkins’ equitable tolling argument, the State argues that Watkins
cannot demonstrate extraordinary circumstances based on his alleged incompetence. First,
Watkins alleges he was diagnosed with a mental illness in 2007, not deemed incompetent.
Moreover, the State insists, Watkins cannot show that incompetence caused his untimely filing,
as illustrated by the fact that, during the limitations period, he raised the instant ineffective
assistance of counsel claim in state court through appellate counsel, and filed various pro se
pleadings. Watkins responds simply that the State’s argument “fail[s] to give any weight to the
-8-
Case No. 15-2445
Gary Watkins v. Jodie DeAngelo
mental illness he suffered at the time he filed his initial § 2254 petition, without the benefit of
counsel, and that the mental illness inhibited his efforts at compiling a comprehensive petition.”
CA6 R. 18, Appellee Br. at 31.
AEDPA’s limitations period is not jurisdictional, so may be tolled for equitable reasons.
Holland v. Florida, 560 U.S. 631, 645–49 (2010). A petitioner is entitled to equitable tolling
only if he establishes “‘(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way’ and prevented timely filing.” Id. at 649 (citation
omitted). We have held that a petitioner’s mental incompetence can constitute an extraordinary
circumstance that tolls the limitations period, but the petitioner bears the burden to establish that
“(1) he is mentally incompetent and (2) his mental incompetence caused his failure to comply
with AEDPA’s statute of limitations.” Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011). But we
must take care to only apply the equitable tolling doctrine “sparingly.” Id. at 741.
Watkins’ case is similar in some respects to that presented by the petitioner in Kitchen v.
Bauman, 629 F. App’x 743 (6th Cir. 2015). There, the petitioner alleged that he was mentally
incompetent before trial, and that his incompetence carried through to the relevant tolling period.
Id. at 747–48. However, the court determined that he presented no evidence of his mental health
status during the limitations period and that the record suggested that he was stable. Id. The
court also concluded that any alleged incompetency did not cause the untimely filing. Id. The
petitioner was declared competent to stand trial twice before he was tried and nothing in the
record indicated that his mental illness hindered his ability to assist trial counsel. Id. at 748.
Moreover, during the limitations period, the petitioner filed a civil suit challenging his
confinement, which also indicated that his mental status did not hinder his ability to make timely
filings. Id.; see also Ramirez-Matias v. Lynch, 631 F. App’x 339, 343–44 (6th Cir. 2015)
-9-
Case No. 15-2445
Gary Watkins v. Jodie DeAngelo
(concluding that though the petitioner may have been mentally incompetent, her ability to reach
out to attorneys to discuss her immigration status suggested that her psychological impairments
did not prevent her timely filing).
Even assuming that Watkins was diligently pursuing his rights, he cannot establish
entitlement to equitable tolling. First, like the petitioner in Kitchen, Watkins presents no
evidence of his mental health status during the limitations period. The statute of limitations
began to run on August 25, 2009, Watkins, 143 F. Supp. 3d at 637, over two years after Watkins’
2007 diagnosis. Like the petitioner in Kitchen, Watkins appears to argue that the 2007 diagnosis
carried over into the limitations period. However, this argument fails for several reasons. First,
mental illness is not the same as mental incompetence. See Cowans v. Bagley, 639 F.3d 241,
247–48 (6th Cir. 2011). Watkins was diagnosed with “Psychotic Disorder NOS” and given a
treatment plan that included regular therapy and medication. 2007 Psychiatric Evaluation 1–4,
ECF No. 15-23, Page ID 916–19. There is nothing to indicate that this diagnosis altered the
previous evaluation deeming Watkins competent. Moreover, even assuming that failure to
comply with the treatment plan would render him incompetent, Watkins does not allege that he
failed to comply with the plan.
More importantly, Watkins has not established that any alleged incompetency caused his
untimely filing. See Ata, 662 F.3d at 742. In fact, after the limitations period began to run,
Watkins filed at least two timely motions in state court, one through counsel and one pro se,
raising the instant ineffective assistance of counsel claim. Additionally, he timely filed, pro se,
the original habeas petition. That he was able to make these timely filings indicates that his
mental illness was not the cause of his untimely amended habeas petition. See Kitchen, 629 F.
App’x at 748. Though Watkins faults his mental illness for his failure to compile
- 10 -
Case No. 15-2445
Gary Watkins v. Jodie DeAngelo
“a comprehensive petition,” CA6 R. 18, Appellee Br. at 31, “the relevant inquiry is whether
petitioner’s mental incompetency prevented him from filing a timely petition, not a meritorious
one,” Kitchen, 629 F. App’x at 748. Consequently, Watkins’ “blanket assertion of mental
incompetence is insufficient” for equitable tolling. See Ata, 662 F.3d at 742.
III.
For the foregoing reasons, we REVERSE the district court’s determination that Watkins’
amended petition was timely, DISMISS the portion of the petition pertaining to the ineffective
assistance claim discussed herein, and REMAND for the district court to determine the
timeliness—and if timely, the merits—of Watkins’ remaining claims consistent with the analysis
we have employed in this opinion.
- 11 -
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"pile_set_name": "FreeLaw"
} |
451 F.2d 823
78 L.R.R.M. (BNA) 2808, 66 Lab.Cas. P 12,182
LIPMAN MOTORS, INC., Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent,andAmalgamated Laundry Workers, Joint Board, AmalgamatedClothing Workers of America, AFL-CIO, Intervenor.
Nos. 222-23, Dockets 35813, 71-1554.
United States Court of Appeals,Second Circuit.
Argued Oct. 15, 1971.Decided Nov. 4, 1971.
Jay S. Siegel, Hartford, Conn. (Siegel & O'Connor, Hartford, Conn., of counsel), for petitioner.
Jack H. Weiner, Washington, D. C., Atty. (Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Warren M. Davison, Deputy Asst. Gen. Counsel, on the brief), for the N.L.R.B.
Aaron J. Carr, New York City (Jacob Sheinkman, New York City, on the brief), for Intervenor.
Before FRIENDLY, Chief Judge, CLARK, Associate Justice,* and KAUFMAN, Circuit Judge.
KAUFMAN, Circuit Judge:
1
Lipman Motors, Inc., petitions this Court for review of an order of the National Labor Relations Board requiring it to bargain with the Amalgamated Laundry Workers. The Company argues that the Board's certification of the Union, which underlies the determination that the Company violated Sections 8(a) (1) and (5) of the National Labor Relations Act, 29 U.S.C. Sec. 159, by refusing to bargain, is invalid. The Union also petitions for review of the Board's order, on the ground that the Board abused its discretion in denying the Union a "make-whole" remedy. Were it not for the Company's contention that the Board's failure to consider the "whole" record vitiates the certification of the Union, this would be a routine representation election case presenting questions of the Board's discretion to regulate elections and the right to an administrative hearing. The disposition, nevertheless, is clear-we reject the positions of both the Company and the Union, deny their petitions and grant the Board's cross-petition for enforcement of its order.
2
Lipman Motors is a Hartford, Connecticut, automobile dealership. On February 26, 1970, the Board conducted a representation election in a unit comprised of the Company's mechanics, bodymen and service department employees.1 Twenty-eight employees voted in favor of representation by the Union, nine voted against representation and one ballot was challenged.
3
The Company promptly filed objections to the election on the grounds that the Union had misrepresented to the employees that they would be eligible for a pension if the Union were elected, even if the Company failed to agree; and that the Union had conducted a poll prior to the election which unduly coerced the employees.2 After conducting an ex parte investigation of the election, see 29 C.F.R. Sec. 102.69(c), the Acting Regional Director filed his report recommending that the Board overrule the Company's objections. Thereupon, the Company reiterated its position in exceptions to the report filed with the Board. But the Board, finding that the exceptions "do not raise any substantial issues of fact or law which would require overruling the Regional Director's recommendations or the holding of a hearing," adopted his findings and certified the Union as the statutory bargaining representative of the employees without a hearing.
4
Seeking to obtain judicial review of the Board's certification,3 the Company refused to bargain with the Union. A complaint issued charging the Company with unfair labor practices in contravention of Section 8(a) (1) and (5), and the Board, invoking its "rule against relitigation" in again refusing to grant a hearing, entered summary judgment against the Company.
I.
5
The Company claims that the Board should have invalidated the election because of Union misrepresentations, citing the well-established standard of Hollywood Ceramics Company, 140 NLRB 221, 224 (1962).4 We disagree. Hollywood Ceramics, recently approved by us in Bausch & Lomb, Inc. v. N. L. R. B., 451 F.2d 873 (2 Cir. 1971), is an outgrowth of the Board's policy of regulating pre-election campaigns to ensure that representation elections are conducted under "laboratory conditions" and that employees exercise a free and informed choice. See General Shoe Corporation, 77 NLRB 124 (1948). The Company, from the time of its initial objections to the election, consistently has maintained that the Union misled the employees into believing that they would be eligible for the Union's standard pension plan without the Company's agreement if the Union were elected. Although the Regional Director found on the basis of conflicting evidence that there was no such misrepresentation, he also found, and the Company admits,5 that management was aware of the Union statements a full week before the election. In the circumstances of this dispute, this finding is decisive of the Company's claim.
6
One of the important elements of the Hollywood Ceramics test is that the misrepresentation occur "at a time which prevents the other party or parties from making an effective reply." That one week was sufficient time for the Company to merely inform the employees that any benefits promised by the Union were indeed contingent upon the Company's agreement during collective bargaining seems to us to be self-evident.6
7
Accordingly, we need not tarry over whether the Acting Regional Director's finding, later adopted by the Board, that there was no misrepresentation is supported by substantial evidence or, if there was a misrepresentation, whether it would come within the Hollywood Ceramics' test of materiality. See Bausch & Lomb, supra, at 146-150.
II.
8
The Company's second challenge to the certification is grounded on events at a Union meeting held on February 24, two nights before the election. These events are best described by the findings of the Acting Regional Director:
9
* * * Near the end of the meeting, and prior to Union Agent Harold Biging's calling for nominations for an observor at the Board election, Biging asked if anyone wanted to say anything, express an opinion, or speak for the Company or the Union. There was no reply. He then asked, "Is there anyone now who feels he can't vote for the Union? If there is let him speak up." There was a slight pause and someone in the group shouted "* * * Let's see who's for it." At that point just about everyone present raised his hand, and there were a few shouts of enthusiasm. There was no count taken, no tally was drawn and no ballots were used. It is clear that the show of hands was in response to the "* * * Let's see who's for it" stimulus from the floor.
10
The Company argues that this "poll" requires us to set aside the election, citing Offner Electronics, Inc., 127 NLRB 991, 992 (1960). In Offner the Board set aside an election where the employer had conducted a secret-ballot straw poll prior to the election. The opinion included the following broad language:
11
* * * after the Board directs a representation election, or the parties agree to a Board-conducted election, the responsibility to conduct a secret ballot election for the resolution of the question concerning representation rests solely with the Board, and any secret balloting or polling of the employees on the representation issue by the parties, or by others on a party's behalf * * * may be used by an innocent party as a basis for setting aside the Board election.
12
We do not agree that Offner is apposite to this case, but in concluding as we do, we neither approve nor disapprove the Board's current position that the rationale of Offner applies only to employer-conducted polls.7
13
The spontaneous show of hands "in response to the '* * * Let's see who's for it' stimulus from the floor," a bit reminiscent of the college rally on the eve of the big game, is hardly conduct which "rendered employee free choice impossible." See Offner Electronics at 992. The employees here were not confronted with the pressure of a formal straw poll, conducted by the Union representative, with the ayes and nays carefully recorded. We cannot say that the Board abused its discretion in determining that the Union meeting did not interfere with "laboratory conditions."8
III.
14
Our conclusion, of course, is based upon the assumption that the Acting Regional Director's description of the events in question is factually correct. Normally we would inquire whether his findings, adopted by the Board, were supported by substantial evidence. But, when none of the parties raises a substantial and material factual issue in its objections to the Regional Director's report, the Board, without a hearing may adopt those findings, and those findings are then conclusive on the reviewing court. See 29 U.S.C. Sec. 160(e); 29 C.F.R. Sec. 102.62(e).9
15
The Company claims, however, that there were substantial and material factual issues which entitled it to a hearing, either before the Board certified the Union or before it entered its unfair labor practice order in summary fashion. In its exceptions to the Acting Regional Director's Report, the Company alleged that both employer and employee affidavits submitted to the Acting Regional Director established that the Union had misrepresented the conditions relating to pension plan coverage. The Company also alleged that the Union solicited the showing of hands and compelled "the employees present to publicly divulge what their vote would be. * * *"
16
A hearing is not required, however, "unless by prima facie evidence the moving party presents substantial and material factual issues which, if resolved in its favor, would warrant setting aside the election. * * *" Polymers, Inc. v. N. L. R. B., 414 F.2d 999 (2d Cir. 1969), cert. denied, 396 U.S. 1010, 90 S.Ct. 570, 24 L.Ed.2d 502 (1970). Conclusory allegations questioning the ultimate findings of the regional director are not sufficient. See also N. L. R. B. v. Tennessee Packers, Inc., 379 F.2d 172, 178 (6th Cir.), cert. denied, 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 364 (1967).
17
The Company's claim for a hearing on the misrepresentation issue is clearly illfounded. This is an instance where the alleged factual dispute, centering as it does on what was said and not on when it was said or when the Company learned of the statements, would not warrant setting the election aside even if the dispute were resolved in the Company's favor. As we have set forth in our earlier discussion, timing, which here works against the Company, is an essential element of the Hollywood Ceramics test.
18
Nor is the Company entitled to a hearing on the polling issue. Its bald assertion that the Union conducted the poll is not supported by any specific factual allegations controverting the Acting Regional Director's findings which would lead us to believe the show of hands was not spontaneous. For example, the Company does not charge that the Union, according to a preconceived design, had planted the employee who yelled "Let's see who's for it."
19
Finally, there is no merit to the Company's claim that the Board's "rule against relitigation" deprived it of due process. In an unfair labor practice proceeding based upon a refusal to bargain, the Board is required to reopen the question of certification only when the party requesting the hearing presents newly discovered evidence. See, e. g., Polymers, Inc., supra, at 1005; Tennessee Packers, Inc., supra, at 179-180. This rule, which is essential to the orderly settlement of labor disputes and the prevention of costly procedural delays, is not dependent upon a prior hearing, but only on the prior opportunity to present any evidence which might require a hearing.
IV.
20
The Company argues vociferously that the record before the Board and this court is incomplete. The Acting Regional Director in his report relied on several employees' affidavits. These affidavits were not before the Board when it reviewed the report. Accordingly, the Company argues, the Board could not have reviewed the "entire record" as it claimed, and the certification must be vacated. We do not share the Company's views.
21
Section 102.69(f) of the Board's Rules and Regulations, 29 C.F.R. Sec. 102.69(f) provides:
22
The notice of hearing, motions, rulings, orders, stenographic report of the hearing, stipulations, exceptions, documentary evidence, all of which, together with the objections to the conduct of the election or conduct affecting the results of the election, any report on such objections, any report on challenged ballots, exceptions to any such report, any briefs or other documents submitted by the parties, the decision of the regional director, if any, and the record previously made as described in Sec. 102.68, shall constitute the record in the case. Immediately upon issuance of a report on objections or challenges, or both, upon issuance by the regional director of an order transferring the case to the Board, or upon issuance of an order granting a request for review by the Board, the regional director shall transmit the record to the Board.
23
Although the Board has stated that a rather similar definition of the record in Sec. 102.68 does not include affidavits such as those in issue here, LTV Electrosystems, Inc., 166 NLRB 938 n. 2 (1967), enforced, 388 F.2d 683 (4th Cir. 1968), we are not required to consider this interpretation or resolve the procedural question the Company raises. What is decisive here is that the Company's exceptions, even viewed in the light most favorable to it, do not warrant setting aside the election.10
V.
24
We are left only with the Union's claim that the Board abused its discretion in denying a "make-whole" remedy. When the Union moved for summary judgment upon the complaint charging the Company with unfair labor practices, it requested that the Board in addition to the traditional bargaining order (1) grant the employees compensatory damages for the monetary losses suffered as a result of the Company's refusal to bargain and (2) require the employees to be assembled to hear an explanation by the General Counsel of the Board and the Union concerning the Company's violations. The Board denied this request and issued its traditional order requiring the Company to cease and desist from the unfair labor practices, to bargain with the Union upon request and to post appropriate notices.
25
It is now axiomatic that the Board has broad discretion in fashioning an affirmative remedy under Section 10(c) to "effectuate the policies of the Act." See, e. g., N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 612 n. 32, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); Fibreboard Paper Products Corp. v. N. L. R. B., 379 U.S. 203, 216, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). Recently this Court upheld the Board's refusal to grant monetary damages, noting that "[t]he award of monetary relief for an employer's failure to bargain is an unusual remedy which has been used very sparingly by the Board." Herald Company v. N. L. R. B., 444 F.2d 430, 436-437 (2d Cir. 1971). The Company pursued the only procedural course available to secure judicial review of the Board certification. This commonplace attack on the Board's decision certainly does not warrant a direction by us to the Board to undertake the speculative adventure of fixing damages by "determining" whether the parties would have reached an agreement if they had bargained in good faith and what the terms of that hypothetical agreement would have been.11
26
The Union in its brief has not asked the Court to require the Board to amend its order to provide for the requested meeting of employees. But we note that in the past this relief also has been limited to undoing the effect of egregious unfair labor practices. See, e. g., J. P. Stevens & Co. v. N. L. R. B., 380 F.2d 292, 305 (2d Cir.), cert. denied, 389 U.S. 1005, 88 S.Ct. 564, 19 L.Ed.2d 600 (1967). Here too, the Board did not exceed its broad discretion in denying the Union's request.
27
Petitions for review denied; order enforced.
*
United States Supreme Court, retired, sitting by designation
1
The Company and the Union, with the approval of the Acting Regional Director, entered into a "Stipulation for Certification Upon Consent Election." This stipulation waives all objections to the holding of the election or the composition of the bargaining unit, but does not affect the Board's post election procedures. See 29 C.F.R. Sec. 102.62(b)
2
Although in form the Company listed three objections, the last objection was merely a conclusory statement based upon factual allegations in the first two
3
The only procedure to obtain judicial review of a Board order certifying a statutory bargaining representative is to invite an unfair labor practice charge by refusing to bargain. The certification and the record of the Regional Director's investigation are included in the transcript of the entire record reviewed by the court which reviews the unfair labor practice order. See 29 U.S.C. Secs. 160(e), 159(d)
4
"We believe that an election should be set aside only where there has been a misrepresentation or other similar campaign trickery, which involves a substantial departure from the truth, at a time which prevents the other party from making an effective reply, so that the misrepresentation, whether deliberate or not, may reasonably be expected to have a significant impact on the election. (Footnote omitted.)"
5
Harvey Lipman, the Company Vice President, admitted in an affidavit filed with the Acting Regional Director that an employee had informed him of the Union statements approximately one week before the election
6
The Company argues in its brief that there was insufficient time to reply because "[t]he pension plan involved the Laundry Workers Union and existed, if at all, in an industry totally unrelated to that of the Employer here." But it was not necessary for the Company to confirm all the details of the Union's plan before it replied
The Company also argues that the alleged misstatements were repeated at a Union meeting just two days prior to the election. Even if two days were not sufficient time to reply to this latter statement, our conclusion that the Company could and should have replied to the prior Union statements would not be affected. We note, moreover, that the Company, which had ready access to the thirty-eight employees at a moment's notice and did not have to do any research to refute the alleged position of the Union, easily could have replied within the intervening forty-eight hours. Compare Bausch & Lomb, supra, at 876.
7
Because the union ordinarily does not have the power of the sword or purse, there is some merit to the Board's argument that a union poll may not be as coercive as an employer poll. But it does not necessarily follow that the Board should tolerate any deliberate coercion
8
Assuming the existence of substantial evidence to support the Board's factual determinations, abuse of discretion is the proper standard for reviewing a Board decision to validate or set aside an election. See, e. g., Bausch & Lomb, supra, at 877 n. 6; Follett Corp. v. N.L.R.B., 397 F.2d 91, 94-95 (7th Cir. 1968)
9
Section 102.69(e) of the Board's Rules and Regulations, 29 C.F.R. Sec. 102.69(e), in relevant part provides:
* * * if exceptions are filed, either to the report on challenged ballots or objections, or both if it be a consolidated report, and it appears to the Board that such exceptions do not raise substantial and material issues with respect to the conduct or results of the election, the Board may decide the matter forthwith upon the record. * * *
Section 10(e) of the Act, 29 U.S.C. Sec. 160(e), in relevant part provides:
No objection that has not been urged before the Board * * * shall be considered by the court, * * *. The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.
Whether one characterizes the Company's conclusory allegations as "no objection" or as raising no material factual issues, the findings adopted by the Board are conclusive.
10
We note that if the Company had been afforded a hearing, Section 102.118(b) of the Board's Rules and Regulations requires the written statements of witnesses in a postelection hearing to be produced for the purpose of cross-examination. 29 C.F.R. Sec. 102.118(b). See also N.L.R.B. v. Golden Age Beverage Co., 415 F.2d 26, 34 (5th Cir. 1969)
11
It is by no means clear, and we do not decide whether or not the Board has the power to grant compensatory damages for refusal to bargain
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36 N.Y.2d 95 (1975)
Robert H. Kleinfeldt, on Behalf of Himself and All Others Similarly Situated, et al., Respondents,
v.
New York City Employees' Retirement System, Appellant, and Attorney-General of the State of New York, Intervenor-Appellant.
Court of Appeals of the State of New York.
Argued January 13, 1975.
Decided February 18, 1975.
Adrian P. Burke, Corporation Counsel (Nina G. Goldstein and L. Kevin Sheridan of counsel), for appellant.
Michael Klein for respondents.
Louis J. Lefkowitz, Attorney-General (John Q. Driscoll and Ruth Kessler Toch of counsel), for intervenor-appellant.
Charles G. Moerdler and Vivienne W. Nearing for The Uniformed Sanitationmen's Association, amicus curiae.
Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.
*97Chief Judge BREITEL.
In a class action the New York City Employees' Retirement System and the State's Attorney-General, as intervenor, appeal from the granting of a summary declaratory judgment to plaintiff, a New York City transit employee. The judgment declared that subdivision 4 of section 431 of the Retirement and Social Security Law, as applied to any civil service employee who became a member of a public *98 retirement system before the statute's effective date, violates section 7 of article V of the State Constitution.
The issue is whether the recently enacted statutory limitation on the amount of increased compensation which may be considered in determining the final average salary for retirement purposes diminishes or impairs the benefits of membership in violation of the Constitution.
The Supreme Court declared the statute unconstitutional as applied to plaintiff and all others similarly situated who became members of a public retirement system prior to April 1, 1972, the "effective date" of the statute. The court held that plaintiff is entitled to receive a retirement allowance based upon his full final salary for the 12-month period immediately preceding his retirement, without consideration of the statutory limitation. The Appellate Division unanimously affirmed.
There should be a modification. Subdivision 4 of section 431 of the Retirement and Social Security Law, as applied to any civil service employee who became a member of a public retirement system prior to its effective, independent of its operative, date, prescribes a diminution and impairment of the benefits of membership in the retirement system, in violation of the Constitution. However, the effective date of subdivision 4 of section 431 is June 17, 1971, the date of its enactment, and not April 1, 1972, the operative date from which excess compensation, as defined in the statute, would no longer be included in final average salary. Thus, the statutory limitation may not be applied to those who became members before June 17, 1971.
Section 7 of article V of the Constitution, effective January 1, 1939, provides that, after July 1, 1940, "membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired." Subdivision 4 of section 431 of the Retirement and Social Security Law limits the amount of increased compensation earned in any year which may be considered in the computation of the final average salary for pension purposes to a maximum of 20% over the previous year.
The facts are undisputed. Plaintiff Robert H. Kleinfeldt was employed continuously in the municipal transit system from February 25, 1952 until May 6, 1972. In 1968, plaintiff elected to be covered by a retirement plan provision which would permit *99 him to retire after 20 years with a retirement allowance payable at or after reaching the age of 50 (see Administrative Code of City of New York, § B3-36.6, subd. b). On March 8, 1972, plaintiff executed and filed his retirement application to take effect May 6, 1972. At retirement, plaintiff had more than 20 years of service and was over 50 years of age.
Under a collective bargaining agreement between the Transit Authority and the Transport Workers Union, plaintiff's salary was increased as of October 11, 1971 to $4.6525 per hour. The salary increase, together with other increments, triggered the 20% limitation of the statute. In the period subject to the limitation, April 1, 1972 to May 6, 1972, plaintiff earned as a result of the increases a gross salary of $956.90. For the corresponding period one year earlier, his gross pay was $769.50. Since the later gross salary exceeded his gross salary for the earlier period by more than 20%, the Retirement System computed his retirement benefits in accordance with subdivision 4 of section 431. Consequently, plaintiff's final average salary for retirement purposes was reduced by $33.50, lowering his annual retirement allowance by $16.75.
Before section 7 of article V of the Constitution became operative in 1940, members of a public retirement system did not have vested rights before retirement. Inchoate benefits could be modified or revoked, at the will of the Legislature (see Roddy v. Valentine, 268 N.Y. 228, 231-232). It was against this background that section 7 of article V of the Constitution was enacted to remedy the situation (see Matter of Ayman v. Teachers' Retirement Bd., 9 N Y 2d 119, 125; Birnbaum v. New York State Teachers Retirement System, 5 N Y 2d 1, 8-9; Matter of Day v. Mruk, 307 N.Y. 349, 354). The constitutional amendment characterized membership in a public retirement system as contractual, and provided that benefits might not be diminished or impaired.
Attempts to circumvent the constitutional protections by devices designed to limit future retirement benefits of prior members have been held invalid. In Birnbaum v. New York State Teachers Retirement System (5 N Y 2d 1, 7, supra), the Teachers' Retirement System adopted updated mortality tables which would have, in effect, reduced, by approximately 5%, future allowances upon retirement. The court held that application *100 of the updated mortality tables to members who entered the system before the effective date of the new tables, constituted an impermissible diminution and impairment of benefits (pp. 9-12). Similarly, in Matter of Ayman v. Teachers' Retirement Bd. (9 N Y 2d 119, supra), the court held invalid an attempt to calculate teachers' annuities on actuarial values at the time of retirement, although it permitted use of tables modified prior to the operative date of the constitutional amendment (pp. 124-125). (See, to the same effect, e.g., Matter of Donner v. New York City Employees' Retirement System, 33 N Y 2d 413, 416; Matter of Fisher v. New York State Employees' Retirement System, 279 App. Div. 315, 318-319, affd. 304 N.Y. 899; Cashman v. Teachers' Retirement Bd., 193 Misc. 57, 59, affd. 275 App. Div. 908, affd. 301 N.Y. 501; see, generally, 44 N. Y. Jur., Pensions and Retirement Systems, §§ 25, 27.)
While section 431 of the Retirement and Social Security Law (L. 1971, ch. 503, § 19) was enacted as one of a series of measures designed to control burgeoning and burdensome increases in retirement benefits, retroactive application to prior members of a public retirement system has been rejected. In Kranker v. Levitt (30 N Y 2d 574), retroactive application of subdivision 1 of section 431 was held unconstitutional. It would have eliminated inclusion in final average salary of cash payments for accumulated vacation credits (p. 575). In Matter of Weber v. Levitt (34 N Y 2d 797, 799-800, affg. on opn. at App. Div. 41 A D 2d 452, 463), subdivision 2 of that section, prohibiting inclusion of termination pay in final average salary, was held unconstitutional as applied to prior members.
Thus, it should be evident that subdivision 4, as retroactively applied to those who became members of a public retirement system before its effective date, similarly constitutes a diminution and impairment of membership benefits. An employee's rate of compensation is the most significant part of the formula for determining retirement allowances. It is a more important part of the formula than are the mortality and annuity tables used to calculate retirement benefits. Indeed, the actuarial tables are factors superimposed on the salary base as defined as final average salary. Moreover, the theory of retirement systems is to provide a retirement allowance representing predeterminable *101 fractions of the salary base. If in the Birnbaum and Ayman cases (supra) mortality and annuity tables were entitled to constitutional contractual protection, and could not be modified to the detriment of retiring employees, a fortiori increases in salary may not be excluded from final average salary for prior members. The system plan and the expectations of its members are intimately involved in retirement allowances based on final average salary. Given its significance, as part of an integrated formula, it is one entitled to protection as any other part accorded constitutional protection. This does not mean necessarily, and it should not be decided now, that no part of the formula, however trivial, or however within the contemplation of the "contracting parties" would never be subject to retroactive modification. The retirement plan like any other human contract is not inscribed on tablets of stone.
A minor problem concerns the date from which retroactivity is determined. Bill section 20 of chapter 503 of the Laws of 1971 provides that section 431 would take effect immediately, and the statute became law by approval of the Governor on June 17, 1971. It is this date, the effective date of the statute, which controls the constitutional reach of subdivision 4. Hence, subdivision 4 may not be applied to limit the retirement benefits of one who became a member of the system before June 17, 1971. True, Kranker v. Levitt (30 N Y 2d 574, 575, supra), used April 1, 1972, the date from which accumulated credits would no longer be includible in final average salary, as the "effective" date for purposes of retroactive application of the statute. The questionable logic of so determining retroactivity should hardly be extended (see, indeed, the effective date provision of section 7 of article V of the Constitution, namely, January 1, 1939, although there has never been any dispute that the section did not become operative according to its terms until July 1, 1940).
The court is not insensitive to the grave problem posed by spiraling costs of retirement benefits. Although fiscal relief is a current imperative, an unconstitutional method may not be blinked. As stated in Birnbaum v. New York State Teachers Retirement System (5 N Y 2d 1, 11, supra):
"The constitutional amendment * * * prohibits official action during a public employment membership in a retirement *102 system which adversely affects the amount of the retirement benefits payable to the members on retirement under laws and conditions existing at the time of his entrance into retirement system membership.
* * *
"[The Retirement System] argues that if this court [so] holds * * * the system will be plunged into bankruptcy. The answer to that argument must be that * * * we are not at liberty to hold otherwise".
Accordingly, the order of the Appellate Division should be modified to direct that the declaratory judgment provide that subdivision 4 of section 431 of the Retirement and Social Security Law, as applied to those members who entered the retirement system before June 17, 1971, is violative of section 7 of article V of the State Constitution, and as so modified, should be affirmed, without costs.
Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.
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Electronically Filed
Intermediate Court of Appeals
CAAP-13-0006130
19-MAR-2014
08:25 AM
| {
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} |
961 A.2d 1289 (2008)
LINN
v.
DUNCAN.
No. 1375 WDA 2007.
Superior Court of Pennsylvania.
August 4, 2008.
Affirmed.
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888 F.Supp. 17 (1995)
Richard SALUTE and Long Island Housing Services, Plaintiffs,
v.
STRATFORD GREENS, a co-partnership, Gerald Monter, Elliot Monter and Holiday Management Associates, Defendants.
No. 93 CV 4874 (JG).
United States District Court, E.D. New York.
May 31, 1995.
Richard F. Bellman, Lewis M. Steel, Miriam F. Clark, Steel, Bellman, Ritz & Clark, P.C., New York City, for plaintiffs.
Kenneth Novikoff, Michael Penner, Rivkin, Radler & Kremer, Uniondale, NY, for defendants.
MEMORANDUM AND ORDER
GLEESON, District Judge:
Richard Salute and Long Island Housing Services have brought this purported class action[1] against Stratford Greens, Gerald Monter, Elliot Monter and Holiday Management Associates, alleging that the defendants' refusal to rent Salute an apartment in the Stratford Greens apartment complex constitutes a violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq., and the United States Housing Act, 42 U.S.C. § 1437 et seq. Before the Court are the plaintiffs' motions (1) to amend the complaint to add Marie Kravette as a plaintiff and (2) for a preliminary injunction requiring the defendants to *18 rent an apartment to Kravette at the Stratford Greens complex in Hauppauge, New York.
The defendants have abandoned their opposition to the first motion, which is therefore granted. For the reasons set forth below, the motion for preliminary injunctive relief is also granted.
A. The Claims of Richard Salute
The plaintiffs allege that Richard Salute is a disabled person as defined by the Fair Housing Act, 42 U.S.C. § 3602(h). (Plaintiffs' Second Amended and Supplemental Complaint ("Complaint") ¶ 14.) Due to Salute's handicap, he currently receives disability payments from the Social Security Administration as well as food stamps and other benefits. (Id. ¶ 15.)
In the late 1980s, while Salute was living in a basement apartment in East Northport, New York, his medical condition allegedly forced him to seek alternative housing. Salute applied for and after a wait of five years received a "Section 8 certificate" from the Suffolk Community Development Corporation. (Complaint ¶ 19.) Under the Section 8 program, a certificate holder pays a maximum of 30% of his income toward rent, and the federal government pays the difference. However, in order to participate in the program, a certificate holder must locate an apartment which has a rent that falls within the Department of Housing and Urban Development's ("HUD's") fair market rent guidelines for the community in question. In the event that the certificate holder is unable to locate a suitable apartment within a limited time period, the certificate reverts back to the issuing agency. See generally Deborah Kenn, Fighting the Housing Crisis with Underachieving Programs: The Problem with Section 8, 44 Wash. U.J.Urb. & Contemp.L. 77 (1993).
Salute alleges that in February of 1993, he visited Stratford Greens in search of an apartment. After being shown an apartment which met his needs, Salute was rejected as a tenant on account of his participation in the Section 8 program. Salute further alleges that he was not able to locate another suitable apartment within the statutory period, and thus was forced to give up his Section 8 certificate. (Complaint ¶¶ 21-28.)
Salute contends that Stratford Greens' refusal to accept him as a tenant violated the Fair Housing Act in two respects: (a) it violated 42 U.S.C. § 3604(f)(1) and (f)(2) because the policy of excluding Section 8 certificate holders has a discriminatory impact on Suffolk County's handicapped population; and (b) it violated 42 U.S.C. § 3604(f)(3)(B) because the policy, when applied to Salute, constitutes an unlawful refusal to make the "reasonable accommodations" necessary to afford handicapped persons an equal opportunity to use and enjoy a Stratford Greens apartment. Salute also alleges that the defendants violated the United States Housing Act, 42 U.S.C. § 1437f(t)(1)(A), because Stratford Greens already had at least one tenant who was a Section 8 certificate holder, and once a landlord elects to participate in the program, it may not refuse a prospective tenant on the ground that he is a Section 8 certificate holder.
B. The Plaintiffs' Motion to Amend The Complaint
The plaintiffs seek to amend their complaint in order to add Marie Kravette as a plaintiff. Kravette, like Salute, claims that she was discriminated against by Stratford Greens because she is a Section 8 participant. As noted above, the defendants no longer oppose plaintiffs' motion to amend and supplement their complaint, and that motion is granted.
C. Kravette's Motion for a Preliminary Injunction.
Kravette moves for a preliminary injunction directing Stratford Greens to rent to Kravette a one-bedroom apartment that is currently available in Building No. 5 of the Stratford Greens apartment complex. In order for Kravette to prevail, she must demonstrate (1) that she will suffer irreparable harm if an injunction is not granted, and (2) either (i) a likelihood of success on the merits or (ii) sufficiently serious questions going to the merits combined with a balance of hardships weighing decidedly in her favor. Bristol-Myers *19 Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1038 (2d Cir.1992). Kravette has advanced the same three legal theories that have been raised by Salute.
I find that Kravette has demonstrated that she will suffer irreparable harm in the absence of injunctive relief and that she is likely to succeed on the merits of her United States Housing Act claim. Accordingly, the preliminary injunction will be granted.[2]
1. Irreparable Harm
On May 26, 1995, the Court held a hearing on Kravette's motion, at which she testified. Based on that hearing and the other submissions of the parties, the Court makes the following findings.
Kravette is a 49-year old divorced woman who suffers from degenerative rheumatoid arthritis, which affects her spine, neck, wrists and knees. She also suffers from clinical depression. These afflictions prevent her from working (she was a hairdresser for many years), and she has received Social Security disability payments since approximately 1988.
In the early 1980s, Kravette submitted an application to participate in the Section 8 program. She finally received a certificate in 1990, and on June 1 of that year began residing as a Section 8 tenant in a two-bedroom apartment in Coram, New York. She resided in that apartment with her son.
On March 9, 1995, Kravette notified the housing authority that had issued her certificate that her son had moved out. She was informed that she no longer qualified for the two-bedroom apartment, and must begin looking for a one-bedroom unit. She was directed to relocate to such an apartment at the conclusion of her current lease, which expires on May 31, 1995.
Kravette began searching for a qualified one-bedroom apartment, and on approximately March 15, 1995, looked at one at Stratford Greens in Hauppauge, New York. She disclosed her participation in the Section 8 program to the rental agent, was told that she would be able to rent the apartment beginning June 1, 1995, and filled out a rental application. Kravette thereupon gave the required 60-day notice to her present landlord that she would not be renewing her lease.
Subsequently, Stratford Greens informed Kravette that it would not approve her application because it did not want to participate in the Section 8 program. As stated in the affidavit of defendant Gerald Monter, the Chief Executive Officer responsible for the management of Stratford Greens, the justification for Stratford Greens' practice of refusing such applications "is quite simple: Section 8 is a voluntary program and I simply choose not to participate. I do not want to get involved with the federal government and its rules and any accompanying regulations pertaining to the relationship I have with my tenants at Stratford Greens." (Monter Aff. ¶ 4.)
Despite having looked at numerous other apartments, Kravette has been unable to find an apartment that will accept Section 8 tenants and is legal, habitable, and within the applicable market rent guidelines. Moreover, it is especially important for Kravette to find such an apartment in or near Hauppauge, where her friend, Margie D'Angelis, resides. For the past three years, D'Angelis, a retired nurse, has taken care of Kravette by cooking, cleaning and shopping for her and by driving her to the doctor and chiropractor. The trip from Hauppauge to Coram, where Kravette currently resides, is 25-30 minutes each way. If the care she provides to Kravette is to continue, D'Angelis, who is 60 years of age, will need to have a shorter drive. She resides less than a mile from Stratford Greens.
Thus, Kravette faces the prospect of eviction from her current apartment on June 1, 1995. On that date, she will need alternative housing. The harm she may suffer is not limited to the prospect of becoming homeless. It includes the prospect of losing the extremely valuable assistance of D'Angelis. *20 Perhaps most importantly, if Kravette has not secured alternative housing which satisfies the Section 8 guidelines by June 1, 1995, her Section 8 certificate itself, for which one must wait years, is in jeopardy of reverting back to the issuing agency. Kravette thus faces the prospect of returning, perhaps for years, to the life she led before she received her certificate: living in her car or in friends' garages. The Court thus finds that Kravette will suffer actual and imminent harm if injunctive relief is not granted, and that such harm would not be remedied by monetary damages.
2. The Likelihood Of Success On The Merits
Kravette's first contention is that the defendants violated 42 U.S.C. § 1437f(t)(1)(A) when they refused to rent her a one-bedroom unit because of Kravette's status as a Section 8 participant. Section 1437f(t)(1)(A) of the Housing Act makes it illegal for an "owner who has entered into a contract for housing assistance payments under this section on behalf of any tenant" to refuse "to lease any available dwelling unit ... to a holder of a certificate of eligibility under this section a proximate cause of which is the status of such prospective tenant as a holder of such certificate." Id. As both parties have acknowledged, this provision prohibits a landlord who has elected to accept Section 8 certificates from "picking and choosing" from among that class of prospective tenants.
It is undisputed that Stratford Greens has on four occasions the most recent being March 1, 1995 accepted Section 8 participation by its tenants, and currently has two such tenants. However, the defendants point out that the only circumstances in which this has occurred involve existing tenants who have become indigent while already living in Stratford Greens. The defendants contend that accepting these tenants' Section 8 certificates was an act of compassion, not an election to become a full-fledged Section 8 apartment complex. They further contend that a decision applying § 1437f(t)(1)(A) to Stratford Greens would not only be unfair to the defendants, who have made a decision not to participate in a voluntary government program, but would create an incentive for other non-Section 8 landlords to oust existing tenants who fall on financial hard times and seek to supplement their rent with Section 8 assistance.
The defendants candidly admit that they seek a judicially-created exception to a statute that, on its face, unambiguously governs this case. Specifically, they seek a ruling that although § 1437f(t)(1)(A) facially applies to an "owner who has entered into a contract for housing assistance payments under this section on behalf of any tenant ...," an exception should be created when such a contract or contracts are entered into only with existing tenants by a landlord who otherwise declines to participate in the Section 8 program. 42 U.S.C. § 1437f(t)(1)(A) (emphasis added).
The defendants have cited no authority in support of such an exception. In addition, the Court is not convinced, at least at this early stage, that it would be appropriate for a court rather than the legislature to afford the defendants the relief they seek. Accordingly, I find that Kravette has demonstrated a likelihood of success on the merits of this claim.
Finally, I should note that in seeking to enforce this statutory provision against the defendants, the plaintiffs contend that § 1437f(t)(1)(A) creates a private cause of action. Although the defendants have not seriously disputed this contention, only one court in this circuit, and only a few in the nation, have addressed it. In Glover v. Crestwood Lake Section One Holding Corp., 746 F.Supp. 301, 308 (S.D.N.Y.), Judge Lowe held that § 1437f(t)(1)(A) creates a private right of action. Moreover, the Seventh Circuit recently became the first court of appeals in the nation to rule on this issue, and it agreed with Glover. Knapp v. Eagle Property Management Corp., 54 F.3d 1272, 1275-1277 (7th Cir.1995). Both decisions are well-reasoned, and although they by no means assure Kravette's success in this lawsuit, they buttress the conclusion that there is a substantial likelihood of success on this claim.
*21 D. Conclusion.
The defendants are hereby ordered to rent to Marie Kravette a one-bedroom unit on the first floor in Building No. 5 at the Stratford Greens apartment complex for a monthly rent of no more than $800 beginning no later than June 1, 1995. The defendants are further directed to execute the necessary leases with Kravette and the local housing authority to ensure that Kravette may avail herself of the benefits of the Section 8 program. If the defendants ultimately prevail on the merits, such leases may be terminated on terms to be established by the Court.
By agreement of the parties, the cross-motions for summary judgment relating to the claims of Salute, which are currently scheduled for July 14, 1995, shall also include the claims advanced by Kravette.
So Ordered.
NOTES
[1] The parties have agreed to postpone the motion for class certification pending the outcome of their cross-motions for summary judgment.
[2] Because injunctive relief is available to Kravette on this claim, I need not address her claims under the Fair Housing Act.
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499 S.W.2d 634 (1973)
Carl A. MOORE, Appellant,
v.
Eunice (Moore) SMITH, Appellee.
Nos. 73-84 and 73-85.
Supreme Court of Arkansas.
October 8, 1973.
*635 Milton G. Robinson, Stuttgart, for appellant.
HOLT, Justice.
Appellant sought custody of his 12-year-old son which the court denied. The custody of the boy was continued with the appellee mother. On appeal appellant contends that the chancellor's findings are not supported by the evidence. We think the appellant is correct. We review the evidence, as abstracted, since the appellee does not favor us with a brief.
We first observe that the controlling principle in child custody cases, which are always difficult, is focused solely upon the best interest of the child. In Stephenson v. Stephenson, 237 Ark. 724, 375 S.W.2d 659 (1964), we held:
"In custody matters the unyielding consideration is the welfare of the children. It matters not to this court which of the parties `wins' custody, so long as the children are the ultimate winners of good care and home."
Appellant and appellee were divorced in 1963 at which time the appellee was given custody of their 2-year-old son, Carl, Jr. This was appellee's second of five marriages. It appears the appellant and appellee continued to live in the same vicinity. The appellant had enjoyed visitation rights with his son and maintained support payments. For about three months before this litigation, the boy had lived with the appellant *636 father with appellee's consent. The appellee brought contempt proceedings against the appellant at the end of the three months alleging that he had refused to return their son to her. Appellant, by counterclaim, sought custody. The court found that the appellant was not in contempt and continued the custody of the child with the appellee. The appellant appealed from the denial of custody to him. About two weeks after this hearing, the appellant instituted another action seeking custody of his son alleging, inter alia, that the appellee mother had physically abused their son and the boy had fled to the shelter of appellant's home, whereupon the appellant took his son to the police and left him in their care. The police, at the direction of the chancellor who had received two telephone calls from appellee seeking advice, returned the child for the time being to the father. Upon a hearing the court again continued the custody with the appellee. The two adverse decrees as to custody are consolidated on appeal.
In the first custody proceeding, as abstracted, the appellee testified that her son would not mind her although "he minded his father;" her son loves his father more than her; he wanted to live with his father; the father had bought him a mini bike, a Honda, and a sword; she was receiving $93 a month in Social Security payments from appellant for maintenance of the boy until appellant stopped payment to her after she let their son live with appellant for three months; because she had to leave for work at 6:30 a. m., she yielded to appellant's request about three months before this litigation to let the boy stay with the appellant; and this permission was solely for the welfare of the child because the father, who was retired, could let him sleep longer, take him to and pick him up from school. She further testified that the father had kept his agreement with reference to child support; she had never heard the appellant encourage the boy not to mind her, although she could not make the child mind her and that he had no respect for her; and her son had reported to the police that she had "beat" him.
One neighbor testifying for the appellant, stated she had two children approximately the same age as appellant's son and they played together; Carl, Jr., is high strung, high tempered and hard to approach; after he had spent more time with his father his attitude was better; and he played with other children without throwing fits. For the past several months this neighbor had observed a car parked in front of appellee's house on numerous occasions and at times the car was there in the morning; Carl, Jr., said the man's name was Bill; her little girl had made curious inquiry as to why this man was staying there so much; Carl, Jr., was having problems with his grades, although he attended school regularly; and appellee kept Carl, Jr., clean.
The appellant testified that he took his son on short trips with appellee's knowledge; appellee had brought their son to live with him stating he could live there as long as he wanted to; appellee never asked him to return their son to her during the three months until the day he had the $93 Social Security check stopped being sent to her; he had understood they had a binding agreement that their son would live with him and he had refused to allow the child to return because of her living with Bill, her paramour. On legal advice, however, he permitted the boy to return to appellee with the understanding that she would "stick to her agreement" about not living with Bill; the night the boy was returned to appellee he went to the police because the appellee had whipped him and the police brought the boy to him; he loves his son very much and when his mother brought their son to him in March to live with him, their son was sick and disturbed; after a few hours he "calmed down;" appellee admitted to him Bill was staying with her and it was no one's business except hers. The boy needed orthodontic care which would cost $1,500 or $2,000.
The appellant, again testifying, said that after the boy had lived with him for three *637 months he gained weight but lost weight upon his return to his mother; a few days before this first hearing he had taken him to a doctor who had prescribed medicine for the boy's nerves and another prescription for his stomach; the boy had made failing grades until he reached the sixth grade where he made nearly a "C" average because he had three months opportunity to work with him; the appellee admitted to him that it was making their son nervous when she lived with her husband, Max Smith, to whom she was twice married and divorced, inasmuch as they were "having fusses and fights almost continuously."
A playmate of Carl, Jr.'s, testified that a man named Bill lives with the appellee; Bill sometimes stays with the appellee at night and that he had seen them "laying down in bed together," once with their clothes on and another time "they were up under the cover." He further testified that once when he spent the night with Carl, Jr., he awoke and saw Bill going to the bathroom clothed only in his undershorts. He admitted that he and Carl, Jr., were good friends and had enjoyed shooting guns together. He said appellant had promised to give him a gun. However, he denied it was in relation to the trial.
Carl, Jr., testified that a Bill Andrews lived at their house; he had seen him in the bedroom with his mother and observed him leave her bedroom unclothed. When he complained to his mother about the presence of Bill, she told him it was not any of his business; he was afraid of Bill and had told his mother he wanted to live with his father. Carl, Jr., again testifying, stated that he was in the 6th grade; his father had been carrying him to school for the last two or three years when his mother left him with his father as she went to work; he ate breakfast with his father and that his father picked him up after school and fed him; his father helps him with his school work and his mother never assists him; his father takes him to Sunday School and that his mother never does so: he had heard his mother cursing his father as well as a subsequent husband, one to whom she was married twice; she and this husband were constantly fussing and fighting; he had observed her drinking; and that he had never heard his father curse or observe him keeping or drinking intoxicants at his apartment. Carl, Jr., testified several times emphatically that he preferred to live with his father.
A juvenile court officer testified that she had observed Carl, Jr., on two occasions and noticed he had a "nervous mannerism consisting of twisting his hair." This caused bald spots on the front of his head. The minister of a local church testified that the appellant was a member of his church, attended with reasonable regularity, and he had observed the appellant bringing his son with him. The home of the appellant, who lived alone, was clean and well kept. There was other testimony that Bill was seen at appellee's house where drinking occurred; that appellee had attended local night clubs with Bill as well as being unescorted and dancing with strangers.
Appellee's son, by her first marriage, testified that his mother provides a nice home for Carl, Jr., loves him and takes good care of him. On cross-examination, he admitted that when he had lived in his mother's home, with his mother's knowledge, he was dating a married woman, who was pregnant by him, and further she had spent several nights there. She was later divorced and he married her. He further admitted that during the time appellant and his mother were married, appellant supported his mother as well as himself and his sister.
There was evidence by one witness, who was related by marriage to the appellee, that preceding the first hearing appellant had mentioned $500 to her after her husband said to appellant he was "broke." However, she said no one heard appellant make that statement to her and "they had not been talking about this case."
*638 Appellee adduced evidence from her daughter (appellant's stepdaughter) and another witness that appellee maintained an attractive home and environment, had good meals, and Carl, Jr., was well cared for. The appellee denied that she was living with any man; she considered herself a "good mother" and although she has attended various taverns, she does not drink to excess and always left her son in the care of his father because he is "in good hands;" she was married and divorced five times; she could not control her son and he told her he was going to live with his father because he loves him more than he does her; because he cried and wanted to live with his father she had permitted him to stay there three months "until you get yourself straightened up;" and her son would "lie."
The court continued the custody of the child, as previously indicated, with the appellee mother. Approximately a week following this hearing the appellant, as indicated previously, renewed his petition for custody of the child. At a hearing upon that petition the child testified that a few days after his custody was continued with his mother she became angry with him when he told her, in response to a question, that his love for his father was greater than for her and that he didn't love her. She struck him and started pulling his hair. As she tried to find a belt he escaped and ran to his father's house and his father took him to the police station; his mother came and took him to his father's where he lived about a week and then had to go back to his mother's; that presently, when his mother leaves at 6:30, she leaves him with his half sister who takes him to school at an early hour resulting in his having to wait at the schoolyard until the building opens.
The appellant testified that when the boy appeared at his home after the altercation with his mother his eyes were red and his hair messed up. He complained that his mother had mistreated him. Appellant took his son to the police station. The appellee later brought the boy from the police station to his house stating that the judge had advised her to do so. The chancellor verified that he had suggested this solution to the appellee since she had called twice saying her son was "out of her control" and she wanted his advice. The appellee admitted that she slapped the boy because he would not mind her and that he left saying "I still hate you and I am going to live with my dad." Again, Carl, Jr., testified and urgently reiterated that he wanted to live with his father and the three months he lived with him were the "happiest" time he had ever had in his life.
It is true that in custody proceedings the mother is ordinarily favored and this maternal inclination entertained by the courts is based on the child's needs especially at an early age. However, we have said "[T]hat principle, however, loses some of its force as the child grows older and is not so strong in the case of a ten-year-old boy as it would have been much earlier in the child's life." Qualls v. Qualls, 250 Ark. 328, 465 S.W.2d 110 (1971). As indicated in Stephenson v. Stephenson, supra, the courts are primarily concerned with the welfare of the child and if the father seems to be the better parent for the child's best interests then the courts will vest custody in the father. Jackson v. Smith, 250 Ark. 923, 467 S.W.2d 704 (1971), Campbell v. Richardson, 250 Ark. 1130, 468 S.W.2d 248 (1971). The attitudes and wishes of the child, although not controlling, are proper for the consideration of the chancellor in making an award of custody. Campbell v. Richardson, supra. We have recently approved a change of custody of a 15-year-old girl to her father where the girl expressed a strong desire to return and live with her father and three brothers. Ray v. Manatt, 250 Ark. 230, 465 S.W.2d 111 (1971). In that case the change of custody was approved even though the mother was ". . . shown to have been a dedicated and devoted mother making every effort to meet her daughter's special problem. . ." and she was a ". . . very wise, discerning and unselfish mother."
*639 Of course, chancery cases are tried de novo on appeal and the decree will not be disturbed unless it is against the preponderance of the evidence. We also give particular importance to the chancellor's findings in these cases because of his position to observe the witnesses, their credibility, and the affection or lack of affection demonstrated by the competing parents or parties. Wilson v. Wilson, 228 Ark. 789, 310 S.W.2d 500 (1955). However, if the preponderance of the evidence indicates that the chancellor did not award custody to the parent who could best provide for the future welfare of the child, we must reverse. Cox v. Tucker, 251 Ark. 714, 474 S.W.2d 675 (1972). In the case at bar, we definitely are of the view that the future welfare and best interests of the child are with the father. The appellee, the mother, has been married and divorced five times three times following the divorce from Carl, Jr.'s father. Two of these marriages and divorces were to the same man and it appears undisputed that both of these marriages were characterized by constant cursing and fighting. Carl, Jr., failed in his grades although it appears from the testimony that he was socially promoted. According to Carl, Jr., only his father ever helped him with his studies and took him to Sunday School. It does not appear that his mother denied this. There was evidence that his mother permitted her paramour to live in her home and apparent illicit relations were observed by Carl, Jr., and a playmate. Appellee denied this and presented evidence she maintained a "spotless" house and properly cared for her son.
It could be that the father competed for the love and custody of his son by influencing him and his playmate as to their testimony. Also, that the parties' 12-year-old son lied as his mother stated he would do. The mother admitted however, that she could no longer discipline the boy and he was "out of control." A disinterested witness, a juvenile court officer, described him as a nervous child who twisted his hair to such an extent bald spots resulted. A doctor furnished a prescription for his nervousness and another for his stomach. Suffice it to say that Carl, Jr.'s, nervous conduct is a persuasive manifestation of the insecurity and instability generated by his unstable homelife. The emotional and physical impact of his experiences living with his mother, coupled with his unequivocal desire and demonstrated efforts to live with his father is sufficient together with the other circumstances, to clearly establish that the evidence preponderates in favor of the child's custody being awarded to his father.
In Beene v. Beene, 64 Ark. 518, 43 S.W. 968 (1898), we said:
* * * The elder of the boys, now about nine years old, has probably arrived at that age when a father's peculiar character of oversight and control may begin to be more necessary than the mother's * * *.
That reasoning is particularly applicable in the case at bar.
Appellant next contends that the chancellor erred in ordering the defendant to pay attorney's fees for appellee's counsel, since there was no showing of need on her part or ability to pay by appellee. The award of attorney's fees is within the sound discretion of the trial court in a child custody case even though an aftermath of a divorce. Hydrick v. Hydrick, 224 Ark. 712, 275 S.W.2d 878 (1955). In the case at bar the chancellor heard the testimony concerning the wages earned by Mrs. Smith. Appellant misplaces the burden of proof here. The burden is on appellant to show that the chancellor abused his discretion. Appellant does not demonstrate he is unable to pay the fees nor that appellee's financial needs did not require the allowance.
The award of custody is reversed and remanded for proceedings not inconsistent with this opinion. The allowance of attorney's fees is affirmed.
Affirmed in part and reversed in part.
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326 S.C. 614 (1997)
486 S.E.2d 498
In the Interest of THOMAS B.D., a Juvenile Under the Age of 17, Appellant.
No. 2666.
Court of Appeals of South Carolina.
Heard April 8, 1997.
Decided June 2, 1997.
Rehearing Denied August 28, 1997.
*615 Assistant Appellate Defender Lesley M. Coggiola, of South Carolina Office of Appellate Defense, Columbia, for appellant.
Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney Norman Mark *616 Rapoport, Columbia; and Solicitor Ralph J. Wilson, Conway, for respondent.
HOWELL, Chief Judge.
Thomas D., a juvenile, was charged with simple possession of marijuana. The family court found Thomas D. to be delinquent and sentenced him to probation with special conditions. Thomas D. appeals, arguing the family court erred in denying his motion to suppress the marijuana because he was illegally searched. We affirm.
I.
At the hearing on Thomas's motion to suppress, Lt. Nelson Brown of the Georgetown Police Department testified that he received a telephone call from the mother of Thomas D., indicating her son, who was sixteen, had not come home and was staying at the apartment of an older female.[1] Thomas's mother asked Lt. Brown if he could go to the apartment and try to get her son to leave. Lt. Brown and two other officers proceeded to the apartment to try to locate Thomas. They knocked on the door, but no one responded. The officers waited out of sight and eventually observed Thomas leave the apartment. At that point, they stopped him. Although Lt. Brown stated that Thomas was not under arrest, the officers did perform a weapons pat-down search before placing Thomas in the police car. The officers took Thomas to his mother's place of business, where she asked them to take him to school. While en route to Georgetown High School, Thomas asked the officers if he could smoke. Lt. Brown stated he could see a cigarette pack in Thomas's T-shirt pocket. When they arrived at the school, Lt. Brown took the cigarette pack out of Thomas's pocket.[2] At that time, he observed a "marijuana *617 roach" inside the clear cellophane wrapper of the cigarette pack. Thomas was then placed under arrest for possession of marijuana. A further search revealed a packet of marijuana in Thomas's wallet.
Thomas, however, testified that the officers did not pat him down when they placed him in the car. He denied that he asked to smoke, although he admitted the officers saw him smoking when they stopped him outside the apartment. According to Thomas, the officers informed him they would have to search him when they arrived at the school. Thomas also testified that the cigarette pack was in his pants pocket rather than his shirt pocket.
II.
Thomas argued below and argues again on appeal that the officers' search of him when they took the cigarettes violated the Fourth Amendment. According to Thomas, the evidence of the marijuana should be excluded because he was not under arrest at the time the cigarette package was seized, he did not consent to the search, and the officers had no legal basis to search him. The family court judge denied the motion to suppress. From this decision Thomas D. assigns error. We disagree.
The Fourth Amendment to the United States Constitution provides that the right of the people to be free from "unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. Amend IV. The State concedes that Lt. Brown conducted a search of Thomas D. when the officer took the pack of cigarettes from the minor's T-shirt pocket and subsequently discovered the marijuana. However, the State contends the search was valid under the "reasonable suspicion" test articulated *618 in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), a case involving the legality of searches of students conducted on school property by school officials. We disagree.
In T.L.O., a teacher discovered two students smoking in the lavatory in violation of a school rule. The students were taken to the principal's office, where one student denied she had been smoking. At that point, the assistant principal demanded to see the student's purse and found a pack of cigarettes in it. The principal also noticed a package of cigarette rolling papers in the purse. 469 U.S. at 328, 105 S.Ct. at 735-36. Suspecting that a closer examination might lead to evidence of drug use, the principal thoroughly searched the purse and discovered a small amount of marijuana and other material which implicated the student in marijuana dealing. Id. When delinquency charges were brought against the student, she moved to suppress the evidence found in her purse on the ground the principal's search of the purse violated the Fourth Amendment. Id. at 329, 105 S.Ct. at 736.
The Supreme Court concluded that the Fourth Amendment applies to searches conducted by school authorities. 469 U.S. at 333, 105 S.Ct. at 738. Nonetheless, the Court concluded that the warrant requirement "is unsuited to the school environment" because it would "unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools." Id. at 340, 105 S.Ct. at 742. Thus, the Court held that school officials need not obtain a warrant before searching a student so long as the school official has reasonable grounds to suspect that the search will yield evidence of a violation of the law or school rules. 469 U.S. at 340-43, 105 S.Ct. at 742-44. However, the Court was careful to point out that this exception only applied to searches conducted by "school authorities acting alone and on their own authority. This case does not present the question of the appropriate standard for assessing the legality of searches conducted by school officials in conjunction with or at the behest of law enforcement agencies, and we express no opinion on that question." T.L.O., 469 U.S. at 341, n. 7, 105 S.Ct. at 743, n. 7.
Clearly, the search of Thomas D. was not carried out by school officials. The police were not acting on behalf of or as *619 agents for the school when they searched Thomas D. Instead, the search was conducted by police in furtherance of a law enforcement objectivethat is, the removal of Thomas D. from a surrounding detrimental to his welfare and his relocation to the parentally-approved and societally-mandated school environment. While Thomas D. was a student and the search apparently took place on school property, the search was not conducted by a school official.
The State argues the cigarettes were "contraband" and that Thomas D. was prohibited by school policy from possessing cigarettes on school property. If Thomas D. had been searched by a school official on school property based upon a reasonable suspicion of a violation of school rules, the situation might be different. However, the fact remains the warrantless search of Thomas D. was conducted by law enforcement officers who were not connected with the school. Because the police were acting on their own authority and cannot be considered agents of the school, the reasonable suspicion standard set forth in T.L.O. is simply inapplicable to the case at bar. Thus, the question becomes whether the warrantless search of Thomas D. violated the Fourth Amendment's prohibition against unreasonable searches and seizures. We conclude it did not.
Generally, a warrantless search is unreasonable per se and such a search violates the Fourth Amendment prohibition against unreasonable searches and seizures. State v. Bultron, 318 S.C. 323, 457 S.E.2d 616 (Ct.App.1995), cert. denied (December 8, 1995). However, a warrantless search will withstand constitutional scrutiny where the search falls within one of several well recognized exceptions to the warrant requirement.[3] The burden of establishing probable cause and the existence of circumstances constituting an exception to the general prohibition against warrantless searches is upon the prosecution. Id. at 332-33, 457 S.E.2d at 621. With respect to probable cause, the standard for probable cause to *620 conduct a warrantless search is the same as that for a search with a warrant. Id. at 333, 457 S.E.2d at 621.
The State argues that the cigarette pack was in "plain view" in Thomas D.'s T-shirt pocket when it was seized and that the marijuana was then immediately apparent. Thus, the State contends that the search was proper under the plain view exception to the warrant requirement. We agree.
In order for evidence to be seized under the plain view exception to the search warrant requirement three things must be shown: (1) the initial intrusion which afforded the authorities the plain view was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent to the seizing authorities. State v. Culbreath, 300 S.C. 232, 237, 387 S.E.2d 255, 257 (1990).[4] While the first two prongs of test are easily met in this case, the satisfaction of the third prong is not as readily apparent.
Thomas D. was being transported by the police at the request of his mother. This law enforcement function was under the authority of S.C.Code Ann. § 20-7-600(A) (1976),[5] which provides that a child may be taken into custody when his "surroundings are such as to endanger his welfare."[6] Under section 20-7-600, the police are charged with the responsibility of protecting the children they take into custody. While section 20-7-600 states that this custodial arrangement "shall not be termed an arrest," it is, for many purposes, the practical equivalent of an arrest.
Although it is against the law for someone to provide cigarettes to a minor, it is not against the law for a minor to *621 possess cigarettes.[7] Contrary to the State's argument, the mere fact that a minor possesses cigarettes does not necessarily mean the possession by a minor resulted from the criminal act of another or himself. However, when Thomas D. was delivered to the school grounds by the officers in fulfillment of their statutory obligation, the character of the relatively innocent cigarettes changed and became an immediate threat to his continued presence on the school grounds. While the cigarettes may not have been contraband in the traditional legal sense, they nevertheless became a major obstacle to the fulfillment of the officers' responsibilities, given that the cigarettes were prohibited by school policy. Had the officers not seized the cigarettes, their fulfillment of their obligations under section 20-7-600 would have been illusory at best, given that Thomas D. would have been suspended as soon as he entered the school with cigarettes. Thus, the illegality of Thomas D.'s possession of the cigarettes resulted from the interplay between the school policy prohibiting cigarettes and the officers' statutory obligations under S.C.Code Ann. § 20-7-600. It would be an absurd conclusion indeed to hold otherwise and encourage an artificial compliance by the officers with their statutorily required responsibilities.
Thus, the three prongs of the "plain view" exception to the warrant requirement were met, and, under the circumstances, the officers clearly had probable cause to search Thomas D. The family court, therefore, properly denied Thomas D.'s motion to suppress.
Accordingly, for the foregoing reasons, the decision of the family court is hereby
AFFIRMED.
GOOLSBY, J., concurs in result in a separate opinion.
ANDERSON, J., dissents in a separate opinion.
GOOLSBY, Judge (concurring):
This is an appeal from an adjudicatory proceeding concerning a charge of simple possession of marijuana. The family *622 court found Thomas D., the juvenile defendant, to be delinquent and sentenced him to probation with special conditions. Thomas D. appeals. I agree the judgment should be affirmed, but for different reasons.
As I read the record, Lieutenant Nelson Brown of the Georgetown police department received a telephone call from Thomas's mother. She stated Thomas had spent the night at an older female's house. She asked Lieutenant Brown to pick Thomas up and to take him to school. After waiting a short while, Lieutenant Brown found Thomas and placed him in the police car.
Lieutenant Brown and two other officers transported Thomas to Georgetown High School in a police car. While en route, Thomas told the officers he wanted to smoke.[1] After they arrived at the school and while they were "[P]arked directly in front of the Georgetown High School and getting ready to go in the door ...," Lieutenant Brown noticed Thomas had a pack of cigarettes in the pocket of his tee-shirt. Lieutenant Brown, who knew of the school policy that proscribed the possession of cigarettes on school property, took the cigarettes from Thomas. In so doing, Lieutenant Brown inadvertently found marijuana. He then placed Thomas under arrest for simple possession of marijuana and transported him to the police station. There, officers found more marijuana in Thomas's wallet when they searched him.
The seizure by the arresting officer of the pack of cigarettes, which was in plain view, was a reasonable confiscation of property that was illegal for Thomas to possess at that time and place. See Washington v. Chrisman, 455 U.S. 1, 5-6, 102 S.Ct. 812, 815-16, 70 L.Ed.2d 778 (1982) (the "plain view" doctrine "permits a law enforcement officer to seize what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be"); State v. Culbreath, 300 S.C. 232, 237, 387 S.E.2d 255, 257 (1990) ("The `plain view' doctrine is applicable where a police officer is not searching for evidence against the accused but inadvertently comes across an incriminating object."); cf. *623 Johnson v. Multiple Misc. Items 1-424, 523 N.W.2d 238 (Minn.Ct.App.1994) (defining contraband as property that is illegal for a particular offender to possess, even if possession of such property by another would not be illegal). Thus, the subsequent discovery and seizure of the marijuana was lawful as well.
ANDERSON, Judge, (dissenting):
I respectfully dissent.
The majority opinion concludes the search was justified under a probable cause standard. I disagree.
FACTS/PROCEDURAL BACKGROUND
On April 24, 1995, Minor's mother telephoned Lt. Nelson Brown of the Georgetown Police Department. She indicated her son had not come home and was staying at the apartment of a nineteen year old woman. She asked Brown if he could go to the apartment and try to get her son to leave and go to school. At the time of the incident, Minor was sixteen. Lt. Brown and two other officers proceeded to the older woman's apartment to try to locate Minor. They knocked on the door, but no one responded.
The officers went to the woman's mother's house to determine the whereabouts of Minor and the woman with whom he was staying. The woman's mother agreed to try to contact them. When they returned to the woman's apartment, the officers noticed the woman's car was gone. The officers drove around and tried to find the car. When they rode back to the woman's apartment, her car was parked in front. The officers again knocked on the door, but no one responded. The officers waited out of sight and eventually observed Minor leave the apartment and run into some bushes. One of the officers pursued Minor and caught him. The officers then patted Minor down for a weapons check before he was placed in the police car. Lt. Brown stated Minor was not under arrest at that time.
The officers drove Minor to Kensington School, where his mother works. She asked them to take him to school. While he was being transported to Georgetown High School, Minor asked the officers if he could smoke and indicated he had his own cigarettes. Pursuant to school policy, students who possess *624 cigarettes on school grounds get suspended. According to Lt. Brown, he could see the cigarette pack in Minor's T-shirt pocket and, when they arrived at the school, he took the cigarette pack out of Minor's pocket. Lt. Brown stated his department had a program which assigned school resource officers to schools and the department received a handbook from the school that outlined school disciplinary policies. Through this information, he was aware school policy prohibited possession of cigarettes on school grounds. He also testified it was against the law for someone to transfer cigarettes to a minor and the department seizes cigarettes from minors to use as evidence in case they prosecute someone for transferring the cigarettes to the minor.[1]
When he removed the cigarettes from Minor's shirt pocket, Lt. Brown observed a "marijuana roach" inside the clear cellophane wrapper of the cigarette pack. Minor was placed under arrest for possession of marijuana. In a further search, Brown discovered a packet of marijuana in Minor's wallet.
Minor testified the officers did not pat him down when they placed him in the car. He denied he asked to smoke, although he admitted the officers saw him smoking when they stopped him outside the apartment. According to Minor, when they arrived at the school, the officers said they would have to search him. He said the cigarette pack was in his pants pocket, not his shirt pocket.
The family court held a hearing to address Minor's motion to suppress the marijuana. Minor's counsel argued the search violated the Fourth Amendment and the evidence of the marijuana should be excluded because Minor was not under arrest at the time the cigarette pack was seized, he did not consent to the search, and the officers had no legal basis to search him. After testimony, the family court judge denied the motion to suppress.
ISSUE
Did the trial court err in denying Minor's motion to suppress evidence seized by a police officer after search of Minor on school property?
*625 LAW/ANALYSIS
The Fourth Amendment and Reasonable Government Searches
The Fourth Amendment to the United States Constitution provides the federal government shall not violate "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." U.S. Const. Amend. IV. The Fourteenth Amendment extends this constitutional guarantee to searches and seizures by state officers. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). The exclusionary rule, which provides a remedy for a violation of the Fourth Amendment, is also applicable to the states. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
The ultimate measure of the constitutionality of a governmental search is "reasonableness." Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). To conduct a search, a state officer must have probable cause evidenced by a warrant. See Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). However, a warrant is not required to establish the reasonableness of all government searches. Vernonia, supra. When a warrant is not required, probable cause is not invariably required either. Id. A search unsupported by probable cause can be constitutional "`when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.'" Vernonia, 515 U.S. at 653, 115 S.Ct. at 2391. Such "special needs" exist in the public school context. Id.
I. Was the Search Justified as a New Jersey v. T.L.O.[2] School Search?
The State argues the search was a legitimate school search permitted under the holding in T.L.O. The State recognizes Lt. Brown conducted a search of Minor when the officer took the pack of cigarettes from Minor's T-shirt pocket and subsequently discovered the marijuana. However, the State asserts the legal test to be applied is the "reasonable suspicion" test *626 outlined in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985).
In T.L.O., the United States Supreme Court rejected the need for school officials to obtain search warrants before searching students who are under their authority. Moreover, the Court lessened the search and seizure standard for school officials from probable cause to reasonable suspicion. The Supreme Court concluded the Fourth Amendment applied to searches conducted by school authorities and explained:
How, then, should we strike the balance between the schoolchild's legitimate expectations of privacy and the school's equally legitimate need to maintain an environment in which learning can take place? It is evident that the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject. The warrant requirement, in particular, is unsuited to the school environment: requiring a teacher to obtain a warrant before searching a child suspected of an infraction of school rules (or of the criminal law) would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools. Just as we have in other cases dispensed with the warrant requirement when "the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search," Camara v. Municipal Court, 387 U.S. at 532-533, 87 S.Ct. 1727[, 1733], 18 L.Ed.2d 930, we hold today that school officials need not obtain a warrant before searching a student who is under their authority.
The school setting also requires some modification of the level of suspicion of illicit activity needed to justify a search. Ordinarily, a searcheven one that may permissibly be carried out without a warrantmust be based upon "probable cause" to believe that a violation of the law has occurred....
... [T]he accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend *627 simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider "whether the ... action was justified at its inception"; second, one must determine whether the search as actually conducted "was reasonably related in scope to the circumstances which justified the interference in the first place." Under ordinary circumstances, a search of a student by a teacher or other school official will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
Id. at 340-43, 105 S.Ct. at 742-43 (citations and footnotes omitted).[3]T.L.O. limited its application to school authorities acting alone and on their own authority. Id. at 341 n. 7, 105 S.Ct. at 743 n. 7. The T.L.O. Court noted the case did "not present the question of the appropriate standard for assessing the legality of searches conducted by school officials in conjunction with or at the behest of law enforcement agencies...." Id. The Court did not "decide whether individualized suspicion is an essential element of the reasonableness standard we adopt for searches by school authorities." Id. at 342 n. 8, 105 S.Ct. at 743 n. 8. However, in other contexts, the Court held that "although `some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure[,] ... the Fourth Amendment imposes no irreducible requirement of such suspicion.'" Id.
Although Minor was a student and the search took place on school property, the search was not conducted by a school official. The State claims the cigarettes were "contraband" and the minor was prohibited by school policy from possessing cigarettes on school property. If Minor had been searched by a school official on school property based upon a reasonable *628 suspicion of a violation of school rules, the situation might be different. However, the fact remains the warrantless search of Minor was conducted by a law enforcement officer who was not connected with the school. Accordingly, the "reasonable suspicion" test enunciated in T.L.O., supra, is not applicable.
Here, the police officer's search required a standard of probable cause. Absent a direct nexus of the law enforcement officer to school authority, the doctrine enunciated in T.L.O., supra, is inapposite.
In State v. Tywayne H., 123 N.M. 42, 933 P.2d 251 (App. 1997), Mothers Against Drunk Drivers (MADD) co-sponsored an after-prom dance with Clovis High School in the school's gym. Two uniformed police officers from the Clovis Police Department provided security. Students were instructed to enter through the front entrance, where their hands were stamped. Once a student left the gym, he or she was not allowed to return.
Shortly after the dance began, Officer Mondragon and another officer arrived to check on the two officers already present. At approximately 12:45 a.m., two students, Tywayne and a friend, entered through a side door. Officer Mondragon asked one of the school's coaches standing nearby if students were allowed to enter through that door. When the coach said no, the four officers quickly surrounded the two students, and Officer Mondragon put his hand on Tywayne's shoulder. The officers tried to see if the students had stamps on their hands, but it was too dark in the gym to tell. The smell of alcohol emanated from Tywayne's friend. Officer Jackson testified he smelled alcohol on Tywayne and that Tywayne admitted drinking one beer outside. Officer Mondragon asked Tywayne to step outside, and Officer Summers asked the friend to follow. Both students were frisked. Officer Mondragon's pat-down search of Tywayne uncovered a loaded semi-automatic handgun.
Tywayne filed a motion to suppress the evidence seized. The motion was denied and Tywayne was adjudged a delinquent child for unlawfully carrying a deadly weapon on school premises. On appeal, Tywayne claimed the search of his person which uncovered the weapon was unlawful.
Tywayne H., supra, edifies:
*629 The search here was not conducted by school authorities on their own initiative or even by school authorities with or at the direction of a law enforcement agency. Instead, it was conducted completely at the discretion of the police officers. The only police contact with a school official was Officer Mondragon's question to the coach concerning whether students were permitted to enter through the side door. The coach answered that they were not but gave no directive to the officers to search the students. During the pat-down search itself, there were no school authorities present.
We thus determine that T.L.O.'s lowered standard of reasonable suspicion does not apply under the circumstances of this appeal. Probable cause was therefore required to conduct the search of [Tywayne].
Tywayne H., 123 N.M. at___, 933 P.2d at 254.
II. Was the Search Justified Under a Probable Cause Standard?
a. Warrantless Searches
Generally, a warrantless search is per se unreasonable and violates the Fourth Amendment prohibition against unreasonable searches and seizures. See State v. Dupree, 319 S.C. 454, 462 S.E.2d 279 (1995). However, a warrantless search will withstand constitutional scrutiny where the search falls within one of several well recognized exceptions to the warrant requirement. Id. The recognized exceptions to the warrant requirement include (1) search incident to a lawful arrest, (2) "hot pursuit," (3) stop and frisk, (4) automobile exceptions, (5) the "plain view" doctrine, (6) consent, and (7) abandonment. Id. The burden of establishing probable cause and the existence of circumstances constituting an exception to the general prohibition against warrantless searches is upon the prosecution. State v. Bultron, 318 S.C. 323, 457 S.E.2d 616 (Ct.App. 1995). See also Dupree, supra (burden is upon State to justify warrantless search).
The standard for probable cause to conduct a warrantless search is the same as that for a search with a warrant. State v. Peters, 271 S.C. 498, 248 S.E.2d 475 (1978); Bultron, supra. "That is, a justifiable determination, based upon the totality of *630 the circumstances and in view of all the evidence available to law enforcement officials at the time of the search, that there exists a practical, nontechnical probability that a crime is being committed or has been committed and incriminating evidence is involved." Bultron, 318 S.C. at 332, 457 S.E.2d at 621. See also State v. Adams, 291 S.C. 132, 352 S.E.2d 483 (1987) (determination of probable cause depends on totality of circumstances).
In State v. Dupree, 319 S.C. 454, 462 S.E.2d 279 (1995), our Supreme Court discussed probable cause:
"In dealing with probable cause ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." "And in determining whether the officer acted reasonably ... due weight must be given, not to his inchoate and unparticularized suspicion or `hunch,' but to the specific reasonable inferences which he is entitled to draw from facts in light of his experience." Mere suspicions of the officer will not support a finding of probable cause.
....
... The "experience of a police officer is a factor to be considered in the determination of probable cause, ... but the relevance of the suspect's conduct should be sufficiently articulable that its import can be understood by the average reasonably prudent person."
Dupree, 319 S.C. at 458-59, 462 S.E.2d at 282 (citations omitted).
b. Plain View Exception
The State maintains the pack of cigarettes was in "plain view" in Minor's T-shirt pocket when seized and the marijuana was then immediately apparent. Under the plain view doctrine, an officer may make a warrantless seizure of an item in plain view if (1) the officer did not violate the Fourth Amendment in arriving at the place from which the evidence was viewed; (2) the incriminating character of the item was immediately apparent; and (3) the officer had a lawful right of access to the object itself. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). This doctrine is *631 applicable even when the discovery of the item is not inadvertent. Id.
Although it is against the law for someone to provide cigarettes to a minor, it is not against state law for a minor to possess cigarettes.[4] Therefore, the initial intrusion by Lt. Brown into Minor's pocket to obtain the cigarette pack was not lawful as no crime had been committed by Minor. As a result, the plain view exception is not applicable and the search was unjustified.
In discussing the interplay inter sese of the officers' statutorily required responsibilities and school policy, Chief Judge Howell states: "It would be an absurd conclusion indeed to hold otherwise...."
I strongly disagree with the statement it would be "absurd" to hold otherwise. Under a reasonable and commonsensical approach, I do hold otherwise. The officers took this minor from a zone of legal safety to the geographical position of law violator. Until the minor entered school property in the officers' vehicle, the cigarettes were not contraband. The cigarettes were not contraband under the law, whether analyzed under the traditional legal sense or under strict constitutional scrutiny. The character of the cigarettes did not suddenly change from "relatively innocent cigarettes" to a "major obstacle" to law enforcement duties. South Carolina Code Ann. § 20-7-600(A) (1976) (now repealed) does not save the search activity in this case. Every participant in this case agrees Thomas D. was properly in custody.
CONCLUSION
The family court erred in failing to grant Minor's motion to suppress the evidence. The law enforcement officer did not have probable cause to search the shirt pocket of Minor to obtain the cigarette pack. Because the initial search violated the Fourth Amendment, the discovery of the marijuana was *632 inadmissible as "fruit of the poisonous tree."[5] Accordingly, I would reverse the family court's order denying Minor's motion to suppress and remand for a new trial.
NOTES
[1] Lt. Brown was the lieutenant in charge of the criminal investigation division in the youth services section of the Georgetown Police Department.
[2] Lt. Brown stated that his department had a program which assigned school resource officers to schools and that the department received a handbook from the school outlining school disciplinary policies. Through this information he was aware that school policy prohibited possession of cigarettes on school grounds. He also testified that it was illegal for someone to transfer cigarettes to a minor and that the department seizes cigarettes from minors to use as evidence in the event it prosecutes someone for transferring the cigarettes to the minor. See S.C.Code Ann. § 16-17-500 (Supp.1996) ("It shall be unlawful for any person to sell, furnish, give, or provide any minor under the age of eighteen with cigarettes.").
[3] The recognized exceptions to the warrant requirement include (1) search incident to a lawful arrest, (2) "hot pursuit," (3) stop and frisk, (4) automobile exceptions, (5) the "plain view" doctrine, (6) consent, and (7) abandonment. State v. Dupree, 319 S.C. 454, 462 S.E.2d 279 (1995), cert. denied, ___ U.S. ___, 116 S.Ct. 951, 133 L.Ed.2d 875 (1996).
[4] The United States Supreme Court, however, has concluded that the plain view exception to the Fourth Amendment's warrant requirement applies even if the discovery of the evidence was not inadvertent, if the other requirements of the exception are satisfied. Horton v. California, 496 U.S. 128, 130, 110 S.Ct. 2301, 2304, 110 L.Ed.2d 112 (1990).
[5] Section 20-7-600 was repealed by 1996 Act No. 383, § 2, as of July 1, 1996. Thus, section 20-7-600 was in effect at the time of the incident and adjudicatory proceeding.
[6] Clearly, the welfare of a sixteen-year old boy is endangered when the child skips school to spend the night with an older woman.
[7] However, it is a violation of state law for a minor to possess beer, wine, or alcoholic beverages. See S.C.Code Ann. §§ 20-7-8920 & 8925 (Supp.1996).
[1] Thomas testified he never asked the officers for a cigarette and the officers knew he smoked only "[b]ecause he [sic] saw me smoking when he [sic] pulled up."
[1] See S.C.Code Ann. § 16-17-500 (Supp.1996) (it shall be unlawful for any person to sell, furnish, give, or provide any minor under the age of eighteen with cigarettes).
[2] 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985).
[3] South Carolina has adopted the "reasonableness standard" articulated in T.L.O., supra, in S.C.Code Ann. §§ 59-63-1110, et seq. (Supp. 1996).
[4] Cf. S.C.Code Ann. §§ 20-7-8920 and -8925 (Supp.1996) (it is a violation of state law for a minor to purchase or possess beer, wine, or alcoholic beverages).
[5] See State v. Copeland, 321 S.C. 318, 468 S.E.2d 620 (1996) ("fruit of the poisonous tree" doctrine provides evidence must be excluded if it would not have come to light but for illegal actions of police, and evidence has been obtained by exploitation of that illegality) (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)).
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478 F.2d 1397
U. S.v.Caamano-Arce
73-1243
UNITED STATES COURT OF APPEALS Second Circuit
June 13, 1973
1
E.D.N.Y.
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343 Ill. App. 519 (1951)
99 N.E.2d 588
The Northern Trust Company, Trustee under Will of John F. Laubender, Deceased, Plaintiff-Appellee,
v.
Lou Cullop et al., Defendants-Appellees. On the Appeal of James H. Thoburn and Wilbur Thoburn, Defendants-Appellants.
Gen. No. 45,346.
Illinois Appellate Court.
Opinion filed May 9, 1951.
Released for publication July 5, 1951.
Hastings, Snyder & Rockwell, for appellants.
John H. Rockwell, and George W.K. Snyder, of counsel.
Walter F. Kolb, for appellee.
(Abstract of Decision.)
Opinion by JUSTICE KILEY.
Decree reversed and cause remanded with directions.
Not to be published in full.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 14-4158
______________
DAVID MUNCHINSKI
v.
GERALD SOLOMON, In His Official Capacity as District Attorney
of Fayette County, Pennsylvania and In His Individual Capacity;
RALPH WARMAN, In His Official Capacities as First Assistant
District Attorney and District Attorney of Fayette County, Pennsylvania
and In His Individual Capacity;
JOHN A. KOPAS, III, In His Official Capacity as First Assistant District Attorney
of Fayette County and His Individual Capacity;
DANA L. FAYOCK, Executrix of the Estate of George Fayock
GERALD SOLOMON;
RALPH WARMAN,
Appellants
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 2:13-cv-01280)
District Judge: Hon. David S. Cercone
______________
Submitted Under Third Circuit LAR 34.1(a)
July 16, 2015
______________
Before: SMITH, GREENAWAY, JR., and SHWARTZ, Circuit Judges.
(Filed: July 20, 2015)
______________
OPINION*
______________
SHWARTZ, Circuit Judge.
Following his release from prison, David Munchinski sued former Fayette County
prosecutors Gerald Solomon and Ralph Warman (together, the “Prosecutors”) under 42
U.S.C. § 1983, claiming that they violated his rights to due process and a fair trial by
withholding material exculpatory evidence in connection with his murder convictions.
The Prosecutors moved to dismiss, arguing that they are immune from suit. The District
Court denied the motion. We will affirm.
I
A1
Munchinski and a co-defendant, Leon Scaglione, were charged with two murders
in 1982 and tried jointly in 1983. The jury deadlocked, and Munchinski and Scaglione
were retried separately in 1986. At Munchinski’s retrial, the prosecution primarily relied
on the testimony of Richard Bowen, who claimed to have observed Munchinski and
Scaglione commit the murders. Munchinski was convicted and sentenced to two
consecutive life terms.
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
1
Unless otherwise noted, these facts are drawn from Munchinski v. Wilson, 694
F.3d 308 (3d Cir. 2012).
2
In 1991, Bowen recanted his trial testimony, stating that he had not witnessed the
murders but was coached by Solomon to say that he had. Based in part on this
recantation, Munchinski filed a petition for relief in 1992 under the Pennsylvania Post-
Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. § 9541 et seq. At an
evidentiary hearing, Bowen disavowed his recantation, and in 1993, Munchinski’s PCRA
petition was denied. He filed two subsequent PCRA petitions, in 2000 and 2001, that
were also denied.
In 1998, Munchinski filed a petition for habeas relief under 28 U.S.C. § 2254. The
District Court denied the petition and we affirmed. Munchinski v. Price, 254 F.3d 1078
(3d Cir. 2001). He filed a second habeas petition in 2007, alleging that the prosecution
withheld material exculpatory evidence, including evidence that Bowen was not in
Pennsylvania at the time of the murders. The District Court granted this petition,
concluding that Munchinski had demonstrated that the prosecution “suppressed favorable
evidence that was material to the determination of his guilt or innocence” and thus
“deprived [him] of a constitutionally-adequate trial.” Munchinski v. Wilson, 807 F.
Supp. 2d 242, 290 (W.D. Pa. 2011). We affirmed and ordered the Commonwealth to
release Munchinski or retry him. Munchinski v. Wilson, 694 F.3d 308, 339 (3d Cir.
2012). He was not retried and was released from prison in 2013.
3
B2
Munchinski sued the Prosecutors, among others, under 42 U.S.C. § 1983, claiming
that they violated his constitutional rights to due process and a fair trial. He alleges that
in September 1982, the Prosecutors tape-recorded an interview of Bowen during which
Bowen denied any involvement in or knowledge of the murders, and that the Prosecutors
“knowingly failed to preserve” the tape. App. 39 (Compl. ¶ 24).
According to Munchinski, Bowen provided a second statement to the Prosecutors
roughly one month later in which Bowen claimed, “for the first time,” to have witnessed
the crimes. App. 40 (Compl. ¶ 25). Shortly thereafter, Munchinski was arrested and
charged. Munchinski alleges that, based on Bowen’s contradictory statements, the
Prosecutors could not have reasonably believed that there was probable cause to arrest
and charge him.
Munchinski also alleges that he was wrongfully convicted in 1986 because the
Prosecutors failed to disclose material exculpatory evidence after the 1983 mistrial. He
further alleges that, during the first PCRA proceeding, Warman and another prosecutor
were ordered to produce for the PCRA court’s in camera review the “complete and
entire” Pennsylvania State Police investigation file, but failed to do so, and thereby
withheld material exculpatory evidence. App. 44 (Compl. ¶ 44). Munchinski maintains
that Warman continued to unlawfully withhold this evidence through the denial of his
2
The facts for this section are drawn from the Amended Complaint. In
accordance with our standard of review, we assume that they are true.
4
first habeas petition in 2001.
The Prosecutors moved to dismiss the Amended Complaint under Fed. R. Civ. P.
12(b)(6), arguing, among other things, that they are entitled to absolute and Eleventh
Amendment immunity. The District Court denied the motion. The Prosecutors appeal.
II3
A
We first address whether the Prosecutors are entitled to absolute immunity. As a
general matter, “state prosecutors are absolutely immune from liability under § 1983 for
actions performed in a [judicial or] quasi-judicial role.” Yarris v. Cnty. of Del., 465 F.3d
129, 135 (3d Cir. 2006). “This immunity extends to acts that are ‘intimately associated
3
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have
jurisdiction to review the District Court’s denial of absolute and Eleventh Amendment
immunity under the collateral-order doctrine to the extent it turns on issues of law.
Dotzel v. Ashbridge, 438 F.3d 320, 323-24 (3d Cir. 2006); P.R. Aqueduct & Sewer Auth.
v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993).
We exercise plenary review over the District Court’s denial of absolute immunity,
Kulwicki v. Dawson, 969 F.2d 1454, 1461 (3d Cir. 1992), and Eleventh Amendment
immunity, Haybarger v. Lawrence Cnty. Adult Probation & Parole, 551 F.3d 193, 197
(3d Cir. 2008). Because the District Court ruled on the Prosecutors’ immunity arguments
in the context of denying their motion to dismiss under Fed. R. Civ. P. 12(b)(6), “[w]e
apply the same standard that district courts apply at the motion-to-dismiss stage.” Yarris
v. Cnty. of Del., 465 F.3d 129, 134 (3d Cir. 2006). Thus, we are “concerned with neither
the accuracy of the facts alleged nor the merits of [Munchinski’s] underlying claims.” Id.
Rather, we must construe the facts alleged in the Amended Complaint in the manner most
favorable to Munchinski to determine whether the Prosecutors are entitled to immunity
for any claims based on their alleged misconduct. Id.; see also Kulwicki, 969 F.2d at
1462-63. We may also consider “any matters incorporated by reference or integral to the
claim, items subject to judicial notice, [and] matters of public record.” Buck v. Hampton
Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (internal quotation marks omitted).
5
with the judicial phase of the criminal process,’” id. (quoting Imbler v. Pachtman, 424
U.S. 409, 430-31 (1976)), but does not encompass “[a] prosecutor’s administrative duties
and those investigatory functions that do not relate to an advocate’s preparation for the
initiation of a prosecution or for judicial proceedings,” Buckley v. Fitzsimmons, 509 U.S.
259, 273 (1993). “Ultimately, whether a prosecutor is entitled to absolute immunity
depends on whether she establishes that she was functioning as the state’s ‘advocate’
while engaging in the alleged conduct that gives rise to the constitutional violation.”
Yarris, 465 F.3d at 136 (quoting Buckley, 509 U.S. at 274).
To determine whether the Prosecutors are entitled to absolute immunity, we must
examine each of the five acts of misconduct alleged in the Amended Complaint and
discern whether the Prosecutors were acting in a judicial or quasi-judicial role, or were
instead performing administrative or investigatory functions. See Wilson v. Rackmill,
878 F.2d 772, 775-76 (3d Cir. 1989). At the 12(b)(6) stage, the Prosecutors must
establish that “the allegations of [Munchinski’s Amended Complaint] . . . indicate the
existence of absolute immunity as an affirmative defense; the defense must clearly appear
on the face of the [Amended Complaint].” Id. at 776; Light v. Haws, 472 F.3d 74, 78 (3d
Cir. 2007). We address each allegation of misconduct in turn.
1. The Interview Tape
Munchinski alleges that the Prosecutors “knowingly failed to preserve” the tape of
6
Bowen’s initial interview.4 App. 39 (Compl. ¶ 24). While Munchinski fails to specify
when this knowing failure to preserve the interview tape occurred, he makes this
assertion in the context of describing the interview itself, which took place in September
of 1982. At that time, Munchinski had yet to be arrested or charged. This suggests that,
in interviewing Bowen, the Prosecutors had adopted “the detective’s role in searching for
the clues and corroboration that might give [them] probable cause to recommend that a
suspect be arrested,” and were thus performing an investigatory rather than a
prosecutorial function. Buckley, 509 U.S. at 273. To the extent that their alleged failure
to preserve the tape occurred in this context, they are not entitled to absolute immunity.5
Id. (“When a prosecutor performs the investigative functions normally performed by a
detective or police officer, it is neither appropriate nor justifiable that, for the same act,
immunity should protect the one and not the other.” (internal quotation marks omitted)).
Therefore, the Prosecutors’ motion to dismiss was properly denied in this respect.
2. The Charging Decision
Munchinski alleges that the Prosecutors ignored Bowen’s inconsistent interview
statements and thus could not have reasonably believed there was probable cause to arrest
4
The District Court inaccurately characterized the allegation as asserting that the
Prosecutors destroyed the tape.
5
To the extent Munchinski intended to allege that the Prosecutors knowingly
failed to preserve the tape in some other context, we note there are circumstances in
which prosecutors are not absolutely immune for knowingly failing to preserve
exculpatory evidence, see Henderson v. Fisher, 631 F.2d 1115, 1120 (3d Cir. 1980), but
we need not issue a sweeping denial of absolute immunity beyond the allegations as we
understand them.
7
and charge him. The arrest of a criminal defendant and the filing of charges are at the
core of the prosecutorial function, and “[a] prosecutor is absolutely immune when
making [the decision to initiate a prosecution], even where he acts without a good faith
belief that any wrongdoing has occurred.” Kulwicki v. Dawson, 969 F.2d 1454, 1464 (3d
Cir. 1992). Accordingly, the Prosecutors are entitled to absolute immunity for this
conduct. Id.; see also Kalina v. Fletcher, 522 U.S. 118, 129 (1997) (holding that a
prosecutor’s filing of an arrest warrant and charging documents are protected by absolute
immunity).
3. Disclosures after the 1983 Mistrial
Munchinski alleges that the Prosecutors withheld material exculpatory evidence
after his mistrial in 1983 through his retrial and conviction in 1986. As a general matter,
prosecutors are “entitled to absolute immunity from claims based on their failure to
disclose exculpatory evidence” before and during trial. Yarris, 465 F.3d at 137. Such
immunity does not, however, extend to periods of “judicial inactivity.” Odd v. Malone,
538 F.3d 202, 213-14 (3d Cir. 2008) (no absolute immunity for alleged prosecutorial
misconduct during a four month continuance). With respect to the lengthy period
between Munchinski’s April 1983 mistrial and his November 1986 retrial, we are unable
to determine from the Amended Complaint what transpired, and thus whether the
Prosecutors “remained ‘intimately associated with [the case’s] judicial phase,’” entitling
them to absolute immunity, id. (quoting Imbler, 424 U.S. at 430), or assumed a more
8
administrative role, in which case absolute immunity would not attach. Because the
immunity defense must be apparent from the face of the complaint, Wilson, 878 F.2d at
776, we cannot conclude at this stage that the Prosecutors are entitled to absolute
immunity for this conduct.6
4. Disclosures during the First PCRA Proceeding
Munchinski also alleges that, during the first PCRA proceeding, Warman withheld
material exculpatory evidence by failing to produce the “complete and entire”
Pennsylvania State Police investigation file for the PCRA court’s in camera review, as
ordered. App. 44 (Compl. ¶ 44). As discussed supra, prosecutors are generally
absolutely immune for failing to disclose exculpatory evidence before and during trial.
Yarris, 465 F.3d at 137-38. To demonstrate entitlement to absolute immunity “[a]fter a
conviction is obtained,” a prosecutor must show that the alleged misconduct was “part of
[his] continuing personal involvement as the state’s advocate in adversarial post-
conviction proceedings.” Id. at 137.
Warman directs us to public court records showing that he drafted the answer to
Munchinski’s petition and brief in opposition to Munchinski’s motion for summary relief,
and that he participated in hearings. These records, of which we take judicial notice, see
In re Indian Palms Assocs., Ltd., 61 F.3d 197, 205-06 (3d Cir. 1995), make clear that he
6
In 1983, the prosecutors were ordered to furnish “all of the evidence” for
Munchinski’s inspection, App. 76. Because we lack facts about the order, we will not
decide whether the Prosecutors’ alleged failure to comply with a 1983 trial court order
independently precludes the application of absolute immunity. See Odd, 538 F.3d at 214.
9
was personally involved in the first PCRA proceeding as an advocate such that absolute
immunity would seem to apply to his failure to disclose exculpatory evidence in
connection with that proceeding. See Yarris, 465 F.3d at 137-38. However, there are
“few circumstances under which we would consider the act of disobeying a court order or
directive to be advocative,” and “we are loath to grant a prosecutor absolute immunity for
such disobedience,” Odd, 538 F.3d at 214, particularly where the order allegedly violated
leaves the prosecutor with little more than “a ministerial function to perform,” Reid v.
State of N.H., 56 F.3d 332, 336-38 (1st Cir. 1995).
Here, the PCRA court ordered Warman to produce “[t]he entire Pensylvania State
Police investigation file” for its review. App. 80. Munchinski alleges that Warman
failed to do so. Insofar as the PCRA court’s order did not require Warman to exercise
any discretion to determine if an item was covered by the order, the order did not require
the exercise of a prosecutorial function. Cf. Reid, 56 F.3d at 336-38 (holding that
prosecutors were absolutely immune for withholding exculpatory evidence in violation of
a court order because the order was issued in response to a defense motion for “any
‘exculpatory’ evidence,” and thus required the prosecutors to make judgments).
Accordingly, Warman is not entitled to absolute immunity at this stage based on his
alleged violation of the PCRA court’s order and resulting failure to produce material
exculpatory evidence. The District Court therefore correctly denied immunity at this
stage for this conduct.
10
5. Disclosures after the First PCRA Proceeding
Lastly, Munchinski alleges that, following the first PCRA proceeding, Warman
“continued, post trial, to unlawfully withhold [material] exculpatory evidence” through
the denial of Munchinski’s first habeas petition in 2001. App. 46 (Compl. ¶ 52). While
the Amended Complaint makes clear that Munchinski continued to collaterally attack his
conviction after the denial of his first PCRA petition, it does not allege that Warman was
asked to take any action in connection with or was involved in those proceedings. The
Amended Complaint alleges only that Warman “unlawfully” withheld exculpatory
evidence between roughly 1993 and 2001. App. 46 (Compl. ¶ 52). Because the
Amended Complaint does not allege that Warman was involved in subsequent collateral
attack proceedings, it is not apparent from its face whether he is entitled to absolute
immunity for the alleged misconduct following the first PCRA proceeding. Thus, the
motion to dismiss on immunity grounds based on this allegation was properly denied.
B
We next address whether the Prosecutors are entitled to Eleventh Amendment
immunity. The Eleventh Amendment “immunize[s] an unconsenting state from suits
brought in federal courts by her own citizens as well as by citizens of another state.”
Fitchik v. N.J. Transit Rail Ops., Inc., 873 F.2d 655, 658-59 (3d Cir. 1989) (internal
quotation marks omitted). A suit brought against an actor that is in essence “an arm of
the state” is similarly barred by the Eleventh Amendment. Id. at 658. The Eleventh
11
Amendment does not, however, bar suits against officials in their individual capacities,
even if the actions that are the subject of the suit were part of the officials’ governmental
duties. Hafer v. Melo, 502 U.S. 21, 30-31 (1991). Since Munchinski has sued the
Prosecutors in their individual capacities, Eleventh Amendment immunity does not apply.
Moreover, even without considering the individual capacity allegation, the
Amended Complaint does not demonstrate that the Prosecutors are entitled to Eleventh
Amendment immunity at this stage. To determine whether an actor is entitled to
Eleventh Amendment immunity, we consider: “(1) the source of funding—i.e., whether
payment of any judgment would come from the state’s treasury, (2) the status of the
agency/individual under state law, and (3) the degree of autonomy from state regulation.”
Carter v. City of Phila., 181 F.3d 339, 347 (3d Cir. 1999). Applying these factors
requires “a fact-intensive review that calls for individualized determinations.” Bowers v.
NCAA, 475 F.3d 524, 546 (3d Cir. 2007). We treat Eleventh Amendment immunity as
an affirmative defense, and “the party asserting [it] bears the burden of proving
entitlement to it.” Christy v. Pa. Tpk. Comm’n, 54 F.3d 1140, 1144 (3d Cir. 1995).
From the pleadings, we cannot conclude that the Prosecutors are entitled to
Eleventh Amendment immunity. With respect to the first factor, even if the
Commonwealth would be required to pay for any judgment Munchinski might obtain,
this alone is insufficient to grant Eleventh Amendment immunity. Furthermore,
“Pennsylvania’s Constitution expressly defines District Attorneys as county rather than
12
state officers.” Carter, 181 F.3d at 349 (emphasis omitted). While we do not rule out the
possibility that the Prosecutors may be able to adduce facts at some later stage in the
proceedings showing that they are entitled to sovereign immunity notwithstanding this
fact, see id. at 352-53 (recognizing that the possibility that Pennsylvania District
Attorneys could be considered state actors to the extent that they are enforcing state law
and performing other purely prosecutorial duties), such entitlement is not evident on the
record before us. Accordingly, we will affirm the District Court’s denial of Eleventh
Amendment immunity.
III
For the foregoing reasons, we will affirm the order of the District Court denying
the motion to dismiss based on absolute and Eleventh Amendment immunity other than
with respect to the conduct associated with the charging decision, for which the
Prosecutors are absolutely immune.
13
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SIXTH DIVISION
April 23, 1999
No. 1-98-3470
In re
MARRIAGE OF JANNA D. TETZLAFF,
Petitioner,
and
THEODORE TETZLAFF,
Respondent-Appellee
(Nottage and Ward,
Appellant).
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Appeal from the Circuit Court of Cook County
Honorable
Patricia Banks,
Judge Presiding.
JUSTICE QUINN delivered the opinion of the court:
This is an appeal from an order of the circuit court directing petitioner's counsel, Nottage and Ward, to place $35,000 of a $65,000 interim attorney fee award into an escrow account. Nottage and Ward contends that: (1) the circuit court violated section 501(c-1) of the Illinois Marriage and Dissolution of Marriage Act (the Act) ((750 ILCS 5/501(c-1) (West 1996)) and abused its general and equitable powers by ordering the law firm to place attorney fees that had been awarded pursuant to an interim fee petition into escrow for the benefit of successor counsel. We hold that court orders awarding interim attorney fees pursuant to section 501(c-1)
of the Act are not subject to interlocutory appeal under Supreme Court Rule 307 (155 Ill. 2d R. 307), and therefore the appeal must be dismissed for lack of jurisdiction.
After 17 years of marriage, petitioner, Janna Tetzlaff, filed a petition for dissolution of marriage on February 11, 1997. Petitioner is a licensed attorney. Respondent, Theodore Tetzlaff, is also an attorney and partner with the firm of Jenner and Block. Petitioner and respondent have three children and have acquired an extensive list of marital property.
On April 28, 1997, Nottage and Ward, counsel representing petitioner in the dissolution action, filed a petition for temporary and prospective attorney fees, stating that as of April 28, 1997, the law firm was owed $35,223.40 for services rendered, and estimating that in order to complete the factual investigation in the case, services were estimated to cost $50,000, which Nottage and Ward requested as prospective fees. Nottage and Ward filed an amended petition for interim attorney fees on June 30, 1997, and indicated that as of May 30, 1997, the total amount owed for services rendered was $66,942,92. Nottage and Ward also requested prospective fees in the amount of $25,000 in order to retain an expert to perform a valuation of assets.
On June 1, 1997, the "leveling the playing field" amendments to the Act became effective and,
inter
alia
, changed the method of petitioning for interim fees and the procedure that the court must follow in awarding such fees. 750 ILCS 5/501
et
seq
. (West 1996).
Section 501 provides:
"5/501. Temporary Relief
§ 501. Temporary Relief. In all
proceedings under this Act, temporary relief shall be as follows:
* * *
(c-1) As used in this subsection
(c-1), 'interim attorney fees and costs' means attorney's fees and costs assessed from time to time while a case is pending, in favor of the petitioning party's current counsel, for reasonable fees and costs either already incurred or to be incurred, and "interim award" means an award of interim attorney's fees and costs. Interim awards shall be governed by the following:
(1) Except for good cause shown, a
proceeding for (or relating to) interim attorney's fees and costs shall be nonevidentiary, summary in nature, and expeditious. When a party files a petition for interim attorney's fees and costs supported by one or more affidavits that delineate relevant factors, the court (or a hearing officer) shall assess an interim award after affording the opposing party a reasonable opportunity to file a responsive pleading. A responsive pleading shall set out the amount of each retainer or other payment or payments, or both, previously paid to the responding party's counsel by or on behalf of the responding party. In assessing an interim award, the court shall consider all relevant factors, as presented, that appear reasonable and necessary, including:
(A) the income and property of each party, including alleged marital property within the sole control of one party and alleged non-marital property within access to a party;
(B) the needs of each party;
(C) the realistic earning capacity of each party;
(D) any impairment to present
earning capacity of either party, including age and physical and emotional health;
(E) the standard of living
established during the marriage;
(F) the degree of complexity of the issues, including custody, valuation, or division (or both) of closely held businesses, and tax planning, as well as reasonable needs for expert investigations or expert witnesses or both;
(G) each party's access to relevant information;
(H) the amount of the payment or payments made or reasonably expected to be made to the attorney for the other party; and
(I) any other factor that the court expressly finds to be just and equitable.
(2) Any assessment of an interim
award (including one pursuant to an agreed order) shall be without prejudice to any final allocation and without prejudice as to any claim or right of either party or any counsel of record at the time of the award. Any such claim or right may be presented by the appropriate party or counsel at a hearing on contribution under subsection (j) of Section 503 or a hearing on counsel's fees under subsection (c) of Section 508. Unless otherwise ordered by the court at the final hearing between the parties or in a hearing under subsection (j) of Section 503 or subsection (c) of Section 508, interim awards, as well as the aggregate of all other payments by each party to counsel and related payments to third parties, shall be deemed to have been advances from the parties' marital estate. Any portion of any interim award constituting an overpayment shall be remitted back to the appropriate party or parties, or, alternatively, to successor counsel, as the court determines and directs, after notice.
(3) In any proceedings under this
subsection (c-1), the court (or hearing officer) shall assess an interim award against an opposing party in an amount necessary to enable the petitioning party to participate adequately in the litigation, upon findings that the party from whom attorney's fees and costs are sought has the financial ability to pay reasonable amounts and that the party seeking attorney's fees and costs lacks sufficient access to assets or income to pay reasonable amounts. In determining an award, the court shall consider whether adequate participation in the litigation requires expenditure of more fees and costs for a party that is not in control of assets or relevant information. Except for good cause shown, an interim award shall not be less than payments made or reasonably expected to be made to the counsel for the other party. If the court finds that both parties lack financial ability or access to assets or income for reasonable attorney's fees and costs, the court (or hearing officer) shall enter an order that allocates available funds for each party's counsel, including retainers or interim payments, or both, previously paid, in a manner that achieves substantial parity between the parties.
(4) The changes to this Section 501
made by this amendatory Act of 1996 apply to cases pending on or after June 1, 1997, except as otherwise provided in Section 508.
(d) A temporary order entered under
this Section:
(1) does not prejudice the rights of
the parties or the child which are to be adjudicated at subsequent hearings in the proceeding;
(2) may be revoked or modified
before final judgment, on a showing by affidavit, and upon hearing; and
(3) terminates when the final judgment is
entered or when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed." 750 ILCS 5/501 (West 1996).
The court granted petitioner's request for leave to file an amended petition for interim attorney fees in light of the new law. Nottage and Ward filed an affidavit on August 22, 1997, in which it averred that as of June 30, 1997, the balance of fees due was $86,469. Nottage and Ward filed another affidavit in September 1997 averring that as of August 31, 1997, the balance of fees due was $169,539.80. On September 30, 1997, the court, without holding an evidentiary hearing, ordered respondent to pay petitioner's interim attorney fees in the amount of $121,060.90 within 30 days.
On October 30, 1997, respondent filed a motion for reconsideration of the September 30 order awarding interim attorney fees, arguing that he was entitled to an evidentiary hearing before fees could be awarded under section 501 of the Act. Petitioner then filed a petition for rule to show cause, and also requested a finding of contempt for violation of the court's September 30, 1997, order to pay Nottage and Ward $121,060.90. The trial court denied respondent's motion to reconsider and ordered him to pay the full amount to Nottage and Ward by November 17, 1997, which he paid on that date.
On December 1, 1997, petitioner filed another motion for leave to amend her petition for temporary and prospective attorney fees based on the amendments to the Act. Petitioner subsequently filed a second petition for interim attorney fees. Total fees incurred as of December 31, 1997, were $224,700.35. The total amount owed to Nottage and Ward as of December 31, 1997, was $109,682.91.
On June 9, 1998, the court granted petitioner's petition and ordered respondent to pay interim attorney fees to Nottage and Ward in the amount of $65,000, while staying the judgment for 30 days. The order did not allocate the $65,000 between earned and prospective fees. On June 23, 1998, respondent filed a motion to modify, clarify and reconsider the June 9, 1998, order with respect to attorney fees and other relief. On July 9, 1998, respondent tendered a check to Nottage and Ward in the amount of $65,000.
On July 16, 1998, Nottage and Ward filed an amended motion for leave to withdraw as counsel due to a conflict of interest between petitioner and Nottage and Ward. Nottage and Ward then filed a second amended motion for leave to withdraw, citing petitioner's alleged desire to discharge the firm as counsel. Respondent filed a response to petitioner's second amended motion for leave to withdraw and a "Counter Petition for Return of Interim Fees." In the counterpetition, respondent asserted that the $65,000 awarded included prospective fees and further asserted that, because Nottage and Ward sought to withdraw only one week after receiving the $65,000 interim fee award, Nottage and Ward should not be allowed to withdraw until it returned the full award. In response, Nottage and Ward argued that the $65,000 was actually for past services rendered and that it was entitled to be paid on a
quantum
meruit
basis for its past services.
During argument on the counterpetition for return of interim fees, respondent argued that the text of section 501 of the Act specifically provided for the disgorgement of interim fees in such circumstances. Nottage and Ward argued that interim fees can only be reassessed at the end of the case pursuant to sections 503 and 508 of the Act. The court, however, concluded that section 501 "allow[ed] the Court to take action now versus at the end of the case." After hearing further argument on the motion to withdraw and the counterpetition for return of interim fees, the court issued an order on August 25, 1998, which stated in pertinent part: "Nottage and Ward shall place into escrow
$35,000 of the funds awarded by this court on June 9, 1997, within 7 working days. The terms of the escrow account to be an account in Janna's name; no withdrawals without order of court."
Nottage and Ward filed a notice of interlocutory appeal from that part of the court's August 25, 1998, order "that requires Nottage and Ward to place into escrow $35,000 previously awarded by the court." In response, respondent filed a motion to dismiss the appeal on jurisdictional grounds which this court denied.
Nottage and Ward rely on this court's denial of respondent's motion to dismiss the appeal as a conclusive determination of the jurisdiction issue. However, the denial of a motion to dismiss an appeal prior to briefing and argument is not final and may be revised at any time before the disposition of the appeal.
Hwang v. Tyler
, 253 Ill. App. 3d 43, 45, 625 N.E.2d 243 (1993). This court has an obligation to consider its jurisdiction at any time and should dismiss an appeal if jurisdiction is lacking.
Hamilton v. Williams
, 237 Ill. App. 3d 765, 772, 604 N.E.2d 470 (1992)
. As a result, this court may reconsider the issue of jurisdiction.
Initially, we address respondent's contention that the circuit court's interlocutory order requiring Nottage and Ward to place $35,000 of the interim fee award into an escrow account is not an order modifying or granting an injunction and that therefore, this court lacks jurisdiction under Supreme Court Rule 307 (155 Ill. 2d R. 307) to entertain this appeal. Supreme Court Rule 307 governs interlocutory appeals as of right. Subsection (a) of Rule 307 provides that "[a]n appeal may be taken to the Appellate Court from an interlocutory order *** granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction." 155 Ill.2d R. 307(a)(1). The purpose of Rule 307(a)(1) is to provide for the interlocutory review of a court's exercise of its equitable power to grant injunctive relief and to prevent abuses of the power that could result in irreparable harm.
In re Marriage of Johnston
, 206 Ill. App. 3d 262, 264, 562 N.E.2d 1004 (1990). Thus, the question presented here is whether the court's order requiring Nottage and Ward to place $35,000 of a previous interim fee award into an escrow account may be properly characterized as injunctive in nature. We have found no cases under the Act in which a reviewing court has made such a determination. This lack of authority is apparently in part due to the novelty of the issue in light of recent amendments to the Act.
An injunction has been defined as a "'judicial process, by which a party is required to do a particular thing, or to refrain from doing a particular thing.'"
In re a Minor
, 127 Ill.2d 247, 261, 537 N.E.2d 292 (1989), quoting
Wangelin v. Goe
, 50 Ill. 459, 463 (1869). To further determine what constitutes an appealable injunctive order under Rule 307(a)(1), we must look to the substance of the action, not its form.
In re Estate of Ohlman
, 259 Ill. App. 3d 120, 630 N.E.2d 1133 (1994).
Nottage and Ward relies on
Allstate Insurance Co. v. Rizzi
, 252 Ill. App. 3d 133, 625 N.E.2d 74 (1993) and
American Re-
Insurance v. MGIC Investment Corp.
, 73 Ill. App. 3d 316, 391 N.E.2d 532 (1979), to support its contention that an order to deposit funds is injunctive in nature.
The plaintiff in
Allstate
filed an interpleader action due to multiple claims filed against the insured, regarding an automobile accident. In its interpleader action, Allstate requested,
inter
alia
, that the court determine the allocation of the $300,000 in insurance funds to all injured parties. Allstate indicated in its complaint that it was willing to settle all claims against the insured in exchange for a full release. However, due to the seriousness of the injuries, Allstate sought the court's assistance in allocating the $300,000 available under the policy. Allstate reached settlements with defendant Rizzi and the other defendants and sought approval from the trial court regarding the settlements. Rizzi and other defendants filed answers to Allstate's interpleader complaint denying that Allstate should be entitled to the relief requested and also asked the trial court that Allstate be ordered to deposit funds with the court. The trial court then denied Allstate's motion to approve the settlements. The defendants filed a motion to require that the trial court order Allstate to deposit the insurance funds with the court and issue an order discharging defendant Rizzi from the action. The trial court subsequently issued an order compelling Allstate to deposit the $300,000 with the clerk of court within 21 days.
Allstate filed a notice of interlocutory appeal and moved to dismiss for lack of jurisdiction. This court held that because Allstate had filed an interpleader complaint but had not been dismissed from the action, the order to deposit funds was injunctive in nature, and not merely administrative.
Allstate
, 252 Ill. App. 3d at 136.
American Re-Insurance
addresses the appealability of an order directing a preadjudication deposit of insurance funds that were the subject of the litigation. The plaintiff and the defendant entered into a reinsurance agreement that provided that, in return for the defendants' payment of 21.55% of the premiums on their lease guarantee insurance policies, the plaintiff would reinsure the defendants for 80% of the amount of their losses under the policies. The plaintiff then filed a complaint against the defendants, arguing that the defendants were "conditionally necessary parties to the action in order to render the relief sought herein,
i.e.
rescission of the [reinsurance] treaty, complete and effective."
American Re-Insurance
, 73 Ill. App. 3d at 318. Simultaneous with the filing of the complaint, the plaintiff filed an "emergency motion for the deposit of funds," which sought permission to deposit funds claimed by the defendants as due under the terms of the reinsurance agreement. On appeal, the plaintiffs contended that this court lacked jurisdiction. This court held that "the establishment of the fund and its 'trustee,' the approval of the original and subsequent payments to the fund*** [were in] substance the types of orders contemplated as appealable by Supreme Court Rule 307(a)."
American Re-Insurance
, 73 Ill. App. 3d at 324. We find both
Allstate
and
American Re-Insurance
readily distinguishable from the case at bar. Unlike
Allstate
and
American Re-Insurance
, Nottage and Ward was effectively dismissed from the dissolution proceedings and its responsibility to petitioner was terminated when its motion to withdraw as counsel was granted.
An instructive case, upon which respondent relies, is
In re Marriage of Meyer
, 197 Ill. App. 3d 975, 557 N.E.2d 242 (1990). In
Meyer
, the petitioner sought to appeal from a temporary order in a dissolution of marriage action that permitted his wife to sell certain marital property and purchase a home using the proceeds of the sale. The wife had filed a motion for temporary relief pursuant to section 501(a)(3) of the Act. The circuit court's order permitted the sale of jointly owned real estate, allowed the wife to purchase a new home, and directed that the balance of the proceeds from the sale be placed in escrow pending trial.
Meyer
, 197 Ill. App. 3d at 977. This court held that the circuit court's order was not injunctive in nature, noting that temporary relief under section 501 may include temporary maintenance or child support, temporary custody, exclusive possession of the marital residence, sequestration of assets, and temporary attorney fees, and yet this temporary relief "is often in the form of neither a temporary restraining order nor a preliminary injunction."
Meyer
, 197 Ill. App. 3d at 978. The court further observed that because any inequity in the temporary order could be addressed before the final hearing in the trial court, an interlocutory appeal was not appropriate.
Meyer
, 197 Ill. App. 3d at 979.
Nottage and Ward attempt to distinguish
Meyer
on the grounds that the real issue in that case on appeal was whether the court order that the wife could use $510,000 of the marital estate to purchase a house was appealable pursuant to Rule 307(a). Nottage and Ward argue that in the instant case, Nottage and Ward, a third party, was ordered to place disputed funds into an escrow account for the benefit of another party. We find Nottage and Ward's distinction unpersuasive.
Here, as in
Meyer
, the order is neither an injunction nor an order modifying an injunction under Supreme Court Rule 307(a)(1). Instead, the order to place $35,000 into an escrow account is merely a modification of the court's previous interim attorney fee award and the court's response to changing circumstances, namely, the withdrawal of Nottage and Ward as counsel for petitioner. Section 501(c-1)(2) specifically provides "[a]ny portion of any interim award constituting an overpayment shall be remitted back to the appropriate party or parties, or, alternatively, to successor counsel as the court determines and directs, after notice." 750 ILCS 5/501(c-1)(2) (West 1996). Nottage and Ward argue that other language in section 501(c-1)(2) provides that interim attorney fee awards may be reviewed at the conclusion of the case at a hearing on contribution under subsection (j) of section 503 or at a hearing on counsel's fees under subsection (c) of section 508. This is true, but to hold that this language requires that modification of an interim attorney fee award may only be made at the conclusion of the case would deprive the trial court of its inherent power to modify its own orders.
We also note that the plain language of the sections 501(c-
1)(1) and (2) does not authorize the appeal of interim orders. 750 ILCS 5/501(c-1)(1),(c-1)(2) (West 1996). The order to place $35,000 into an escrow account is similar to interim or temporary orders entered in dissolution proceedings wherein relief was granted but not found to be injunctive in nature for purposes of appeal. See
In re Marriage of Johnston
, 206 Ill. App. 3d 262, 562 N.E.2d 1004 (1991) (trial court's order requiring the retirement board of the firemen's annuity & benefit fund to comply with qualified domestic relations order entered by the court awarding a portion of husband's pension to wife for her lifetime not injunctive and therefore not immediately appealable under Supreme Court Rule 307(a)(1));
In re T.M.
, 302 Ill. App. 3d 33 (1998)(trial court's order modifying prior supervised visitation order allowing father supervised overnight visits with children and stepchildren was not an injunctive order and therefore not immediately appealable under Supreme Court Rule 307(a)(1)).
Nottage and Ward asserts that the $35,000 at issue was for fees already earned and not a prospective fee. We find the fact that the court ordered $35,000 of the $65,000 interim attorney fee awarded on June 9, 1997, into escrow shows that this portion of the interim attorney fee award was prospective in nature.
A further reason counseling against the appealability of the order is that if orders addressing interim attorney fee awards were appealable, this court would be burdened with numerous interim fee appeals. It is well settled that the Act discourages piecemeal appeals in the absence of some compelling reason.
In re Marriage of Leopando
, 96 Ill. 2d 114, 119, 449 N.E.2d 137 (1983);
Meyer
, 197 Ill. App. 3d at 978. Thus, courts are "'encourage[d] to decide all matters incident to the dissolution in a single judgment, to the fullest extent of [their] authority, in order to achieve finality, promote judicial economy, and avoid multiple litigations and complications which can result from the entry of partial judgments, particularly judgments which dissolve the marriage but "reserve" remaining issues for later determination.'"
Leopando
, 96 Ill. 2d at 120, quoting
In re Marriage of Cohn
, 93 Ill. 2d 190, 197-98, 443 N.E.2d 541 (1982). If there is any inequity in the interim fee order, it can be addressed in the trial court at the hearing for final attorney fees. More importantly, if orders addressing interim attorney fee awards were subject to interlocutory appeal, the party in a dissolution proceeding with less financial ability to pay fees incident to the litigation would be at a severe disadvantage in retaining counsel. This would not be in accordance with one of the key purposes of the "leveling the playing field" amendments to the Act, which is to provide "for timely awards of interim fees to achieve substantial parity in parties' access for funds for litigation costs." 750 ILCS 5/102(5) (West 1996).
Finally, the order is not injunctive because Nottage and Ward has an adequate remedy at law for attorney fees on a contract or
quantum
meruit
basis.
For all of the above reasons, we hold that the order requiring Nottage and Ward to place $35,000 of an interim attorney fee award into an escrow account for the benefit of successor counsel is not injunctive in nature and therefore not appealable under Rule 307(a)(1).
Appeal dismissed.
CAMPBELL, P.J., and BUCKLEY, J., concur.
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51 N.W.2d 620 (1952)
155 Neb. 318
McLEOD
v.
ANDREW MURPHY & SON, Inc.
No. 33105.
Supreme Court of Nebraska.
February 8, 1952.
Mecham, Stoehr, Moore, Mecham & Hills, Omaha, for appellant.
Fred N. Hellner, Omaha, for appellee.
Heard before SIMMONS, C. J., MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
SIMMONS, Chief Justice.
This is an action for treble damages under the Emergency Price Control Act of 1942, 29 U.S.C.A. § 901 et seq. Issues were made and trial was had. At the close of plaintiff's case-in-chief, defendant moved for a directed verdict and an order dismissing the action. The trial court sustained the motion and dismissed the action. Plaintiff appeals. We affirm the judgment of the trial court.
Sometime in November 1944, a car of the plaintiff and a truck belonging to one Dan Thomas collided. The accident occurred near Valentine in Cherry County. Thomas was a contract dealer with defendant. Plaintiff agreed to pay the damages to the truck and told Thomas to take it to defendant at Omaha, have it repaired, and he would pay the bill. On November 23, 1944, defendant agreed to repair the truck, making the agreement with Thomas. Defendant thereafter performed work on the truck, furnished materials, and charged Thomas therefor $428.50 for labor, and $395.40 for parts. Thomas was entitled to a dealer's discount on parts. The discount here was $93.60, so that the net charge to Thomas by defendant was $730.30.
On January 24, 1945, defendant prepared an estimate of damages to this truck. It was directed to Thomas. It shows in considerable detail labor items of $458.15 and parts $720, and a total of $1,178.15.
Plaintiff had a man examine this estimate late in January or early in February *621 1945. On February 15, 1945, plaintiff and Thomas went to defendant's place of business. Evidently plaintiff examined the estimate for he states it contained items that should not have been there, some of which were taken off, but he does not show what items were taken away. In any event, plaintiff paid defendant $1,150 thereon that day and testified that in making the payment he was "paying for the damage to Thomas' truck." Defendant then paid to or credited Thomas with the sum of $419.70, being the difference between $1,150 and $730.30.
Plaintiff brought this action in January 1946, and in his petition alleged that he brought the action for treble damages pursuant to the provisions of section 165, (205), Emergency Price Control Act of 1942 (Public Law 421, 77th Congress, 2d Session p. 34) and as amended by the Stabilization Extension Act of June 30, 1944 (Public Law 383, 78th Congress, 2d Session, p. 640), and maximum price regulations issued pursuant thereto. He alleges that he (plaintiff) contracted with defendant to repair the Thomas truck; that "repair work was performed" for the sum of $1,178.15, in accordance with an estimate made by defendant on January 24, 1945; that the price of repairs set out in the invoice was in excess of the maximum price in the amount of $400; that part of the repairs were not furnished; that he demanded reimbursement for the overcharge; that it was not made; and that he was entitled to and prayed for treble damages or the sum of $1,200.
So far as material here, the answer is a general denial.
The action was not tried until May 1949. The motion for a new trial was overruled in June 1951.
Plaintiff's assignments here go to the proposition that the trial court erred in sustaining defendant's motion and in dismissing the action.
Plaintiff argues at length here that Thomas in taking his (Thomas') truck to the defendant for repairs and in contracting for the repairs acted as agent of the plaintiff. This contention is apparently for the purpose of bringing himself within the provisions of the act as one who bought a commodity. We do not deem it necessary to decide that question for the reason that plaintiff has failed to prove his contention that there was an overcharge under the act.
Plaintiff does not undertake to prove that there was an overcharge on any item or items of parts or labor shown on the estimate which he paid. He introduced no evidence as to applicable maximum prices. Rather he arrives at the overcharge on the basis of contending that the charges made to Thomas were the proper charges under the act and hence he was overcharged in the amount of the difference between the estimate and the bill.
The initial error in plaintiff's position factually is that he assumes that the parts and labor for which Thomas was charged are the same as the parts and labor in the invoice which he paid, and that the difference of $419.70 between the two totals constitutes an unlawful overcharge.
It is clear from the evidence that Thomas was charged for labor performed and parts used in repairing the truck. There is no showing that all the work so done and the parts so used were in connection with the repair of damages done to the truck in the accident. It also appears that certain items of damage to the truck as a result of the accident were not repaired and were not included in the bill to Thomas. In short, Thomas was charged for parts actually used and to be used on the truck and for labor actually performed.
It appears from the evidence that the estimate which plaintiff had had examined and had himself examined before paying the $1,150 was designed as a basis for determining the amount of damages that Thomas had as a result of the accident. The ninth item listed in the estimate under "Parts" is "Freight charges from Valentine to Omaha," $100. Obviously that was not a repair item that defendant was called upon to furnish or expected to furnish. It appears that it was included in the estimate as part of the damages as compensation to *622 Thomas for bringing the truck to Omaha for repairs. There also was included in the estimate "2 9.00×20 Tires & Tubes," $225, which defendant did not and could not furnish because of rationing restrictions during the war, and which plaintiff admitted Thomas could get elsewhere. Plaintiff testified that there was no damage done to tires, but the fact remains he paid an estimate that included that amount for tires.
There also was included in the estimate under "Parts" an item of $10.25 for repair of a tire and tube. The evidence shows that this was a charge which defendant incurred with a third party in an effort to have a tire and tube repaired and later offered to reimburse plaintiff if it in turn got reimbursement for that item. It appears also that this $10.25 item was charged to Thomas. There were also included in the estimate under "Parts," one grille $13.50, and two running boards $19, which defendant could not secure and put on the truck at the time the other repairs were made. It appears that these items were charged to Thomas to be installed on the truck at a later date, and that they were among the items on which Thomas was allowed a dealer's discount.
It appears then that there were included in the estimate under "Parts," a total of $335.25 which defendant in no way furnished or was expected to furnish, and a total of $32.50 on items which defendant was to furnish later, or an over-all total of $367.75.
It appears further that there was included in the estimate for "Labor" an item of $45 for "Painting Damaged Parts." That painting was not done and could not be done until the grille and running boards were installed. We do not find a labor item charged to Thomas that is reconcilable with that item and accordingly conclude it is accounted for in the over-all payment of $419.70 to Thomas.
It follows that what plaintiff is trying to do here is to subtract costs actually incurred by Thomas in repairing the truck from the amount paid for damages arising from the collision, and contending that the difference is an illegal overcharge. Obviously an overcharge is not established by that method.
If we accept plaintiff's premise that the charges for parts and labor in the estimate are to be related in gross to the charges for parts and labor made to Thomas, then we would necessarily reach the result that Thomas, and not the plaintiff, was overcharged, or that if Thomas was charged the correct amount, plaintiff was undercharged. The estimate shows $720 for parts. Subtracting from that the "freight" item of $100 and $225 for tires and tubes, the result would be $395 for parts put or to be put on the truck. The Thomas bill shows that he was charged $395.40 for parts before the discount was allowed. The estimate shows $458.15 for labor. Deducting from that the $45 labor item for painting leaves $413.15. The evidence shows that Thomas was charged $428.50 for labor performed. The net estimate in neither instance is as much as the charge to Thomas. Of course, this does not show that Thomas was overcharged or plaintiff undercharged, but rather shows the lack of a reconcilable basis for plaintiff's claim.
Summing up, plaintiff takes the amount which he, in effect, paid to Thomas for damages to his truck, subtracts from that the amount of the actual cost to Thomas of an incomplete repair job, and holds that the difference was an overcharge by defendant. We know of no rule of law or reason that sustains that conclusion.
The rule is: "Where the evidence is insufficient to sustain a verdict in favor of plaintiff, the trial court may give a peremptory instruction in favor of defendant or excuse the jury and enter a nonsuit." Campbell v. Columbia Casualty Co., 125 Neb. 1, 248 N.W. 690, 691. See, also, Rzeszotarski v. American Smelting & Refining Co., 133 Neb. 825, 277 N.W. 334.
The judgment of the district court is affirmed.
Affirmed.
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575 F.3d 750 (2009)
ALASKA AIRLINES, INC. et al., Petitioners
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION, Respondent
City of Los Angeles et al., Intervenors.
Nos. 07-1209, 07-1223, 07-1273, 07-1276.
United States Court of Appeals, District of Columbia Circuit.
Argued December 11, 2008.
Decided August 7, 2009.
*753 M. Roy Goldberg argued the cause for petitioners Terminal 1 and 3 Airlines and the Air Transport Association of America, Inc. With him on the briefs were Robert W. Kneisley, Howard E. Kass, Robert P. Silverberg, Claire L. Shapiro, and David A. Berg.
Steven S. Rosenthal argued the cause for petitioner the City of Los Angeles and intervenor Airports Counsel InternationalNorth America. With him on the briefs were Jeffery A. Tomasevich, J.D. Taliaferro, and Scott P. Lewis. Douglas A. Tucker entered an appearance.
Mary F. Withum, Senior Trial Attorney, U.S. Department of Transportation, argued the cause for respondent. With her on the brief were Robert B. Nicholson and Nickolai G. Levin, Attorneys, U.S. Department of Justice, Paul M. Geier, Assistant General Counsel, U.S. Department of Transportation, and Dale C. Andrews, Deputy Assistant General Counsel.
M. Roy Goldberg argued the cause for intervenor Terminal 1 and 3 Airlines. With him on the brief were Robert W. Kneisley and Howard E. Kass.
Steven S. Rosenthal argued the cause for intervenors the City of Los Angeles and Airports Counsel International North America. With him on the briefs were Jeffery A. Tomasevich, J.D. Taliaferro, and Scott P. Lewis. Patricia A. Hahn entered an appearance.
Before: GINSBURG, GARLAND, and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge.
Various airlines asked the Department of Transportation (DOT) to declare unlawful certain of the methods used by the City of Los Angeles to calculate the rental rates they pay for terminal space at Los Angeles International Airport (LAX). Both the City and the airlines petition for review of the DOT's Final Decision, Alaska Airlines v. Los Angeles World Airports, Docket No. OST-2007-27331, 2007 DOT Av. LEXIS 437 (Jun. 15, 2007) (Final Decision). We grant each petition in part, deny each petition in part, and remand the matter to the DOT for further proceedings.
I. Background
The airline petitioners (T1/T3 Airlines) rent space in Terminals 1 and 3 at LAX. The City charges the airlines a "base rent" for their terminal space plus a share of the airport's maintenance and operation (M & O) costs. Each airline's base rent and M & O charges are determined in part by multiplying a fee per square foot by the amount of terminal space the airline occupies; an airline's rent may change, therefore, if the City changes either the fee per square foot or the way in which it calculates the amount of terminal space occupied by the airline. When the leases of the T1/T3 Airlines expired and negotiations over new lease terms reached an impasse, the City, seeking increased rental payments to offset increased security costs and to pay for planned airport improvements, adopted a new methodology, increasing both the fee per square foot and the amount of terminal space attributed to each airline.
*754 The new methodology introduced three changes here relevant. First, the City increased M&O charges for all airlines operating out of LAX, including not only the T1/T3 Airlines but also airlines with leases that had not expired. Second, the City changed the formula for calculating the T1/T3 Airlines' rent. Under the "useable space" formula previously employed, the City had multiplied the rental fee by the amount of space used exclusively by each airline. Under the new "rentable space" formula, the City allocated to each of the T1/T3 Airlines a share of the terminal's common areas, such as corridors and stairwells, thus increasing its square footage and hence its base rent. Finally, the City newly based the fee per square foot for the T1/T3 Airlines upon the "fair market value" (FMV) of the space, whereas under the expired contracts, the rental fee had been based upon the "historical cost" of the space.
Airlines in other terminals continue to pay rent based upon the historical cost of useable space; the City is unable to impose its new methodology upon these carriers because they have long-term leases, entered into in the 1980s and still in effect. The City nonetheless increased those airlines' M&O charges, but after the airlines filed suit, ultimately settled for a lesser increase.
The T1/T3 Airlines complained to the DOT that the new charges imposed by the City were unreasonable and, as compared with the charges paid by airlines using other terminals, unjustly discriminatory. The DOT assigned the matter to an Administrative Law Judge, who recommended the DOT rule in favor of the T1/T3 Airlines in most respects. Recommended Decision of U.S. Administrative Law Judge Richard C. Goodwin, Docket No. OST-2007-27331 at 77-78 (Dep't of Transp. May 15, 2007). The DOT rejected much of the ALJ's recommendation and held: (1) The increase in M & O charges was reasonable and non-discriminatory; (2) the rentable space methodology unjustly discriminated against the T1/T3 Airlines; and (3) the City may use fair market value rather than historical cost in setting terminal fees but the particular method it used was unreasonable as applied to the T3 Airlines; because the T1 Airlines did not file a separate written complaint with the Secretary of Transportation within the time required by statute, the DOT did not consider whether the fair market value method was unreasonable as applied to them. Final Decision, 2007 DOT Av. LEXIS 437, at *1.
Both the T1/T3 Airlines and the City petition for review of the Final Decision. The T1/T3 Airlines argue (1) the increase in M & O fees is unjustly discriminatory; (2) it was unreasonable for the City to use fair market value but, if the City was permitted to use fair market value, then the DOT should have decided whether its use was unreasonable as applied to the T1 as well as the T3 Airlines; and (3) the DOT erred by declining to consider whether LAX has monopoly power. For its part, the City argues (1) the DOT should not have considered whether the M & O fee increase was unreasonable; (2) the method it used to determine fair market value was reasonable; and (3) the rentable space methodology does not unjustly discriminate against the T1/T3 Airlines because they are not entitled to the benefits for which the airlines with long-term leases bargained.
II. Analysis
This case arises under 49 U.S.C. § 47129(a)(1), which provides that, upon written request, the DOT "shall issue a determination as to whether a fee imposed upon one or more air carriers ... is reasonable." To approve of a fee increase, *755 the DOT must have "receive[d] written assurances ... that ... air carriers making similar use of the airport will be subject to substantially comparable charges." 49 U.S.C. § 47107(a)(2). The DOT's "findings of fact are conclusive if supported by substantial evidence; and we will affirm [its] decision unless it is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law." City of Los Angeles Dep't of Airports v. DOT (LAX I), 103 F.3d 1027, 1031 (D.C.Cir. 1997) (internal citations omitted).
We begin by considering the challenges to the M & O fee increase. Next, we turn to the DOT's assessment of the City's use of FMV. We then determine whether the DOT erred in holding the City's rentable space methodology was discriminatory. Finally, having analyzed the DOT's treatment of particular aspects of the City's new methodology for calculating rent, we consider the airlines' overarching objection to the DOT's analysis, namely that the agency should have considered whether LAX has monopoly power in a relevant geographic market.
A. M & O Charges
Although the DOT held the M & O fee increase was reasonable, the City petitions for review on the ground that, because the increase was imposed "pursuant to a written agreement with air carriers using the facilities of an airport," 49 U.S.C. § 47129(e)(1), the DOT did not have the authority to determine whether it was reasonable. The agreements to which the City refers are the T1/T3 Airlines' leases, which had expired, and pursuant to which the T1/T3 Airlines were occupying terminal space as holdover tenants upon a month-to-month basis. According to the City, the continuing application of the expired leases and the City's reliance upon the clauses in each allowing for "adjustment" of the M & O rent deprives the DOT of authority to review the reasonableness of the increase. The DOT, however, held the "written agreement" exception did not apply because "[a] standard or boilerplate `holdover' agreement, creating a tenancy at will on a month to month basis, subsequent to lease expiration, does not constitute the type of written agreement that forecloses a § 47129 proceeding." Final Decision, 2007 DOT Av. LEXIS 437, at *104.
The T1/T3 Airlines challenge neither the DOT's authority nor the reasonableness of the increased M & O charge but rather argue the result of the increase was unjustly discriminatory vis-à-vis other airlines at LAX, in violation of 49 U.S.C. § 47107(a)(2). The City nonetheless disputes the DOT's decision that the "written agreement" exception did not apply "because," it says, it fears "the future effects of [the] incorrect ruling." Because the airlines do not challenge the decision under 49 U.S.C. § 47129, there is no case or controversy as to whether the "written agreement" exception applies; even if we held the DOT lacked authority to consider the reasonableness of the increase in M & O charges, that holding would not have any effect on the charges. Because "no justiciable `controversy' exists when parties... ask for an advisory opinion," Mass. v. EPA, 549 U.S. 497, 516, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (citing Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792)), we cannot decide the question presented by the City.
We reject the T1/T3 Airlines' argument that the increase in M & O fees was unjustly discriminatory. As of the date of the Final Decision, all airlines operating out of LAX were paying the increased M & O fees. At some time between that date and the filing of the T1/T3 Airlines' petition for review, the City and the airlines operating out of the other terminals agreed, in settlement of their dispute, to a *756 lesser increase in the M & O fee. Although the DOT could not have foreseen the outcome of that litigation, the T1/T3 Airlines argue the Department should have considered the possibility that the other airlines would either prevail in or reach a favorable settlement of their dispute with the City.
The DOT did not act unreasonably in refusing to consider the range of potential outcomes in the litigation between the City and the other airlines. The DOT could not determine whether the T1/T3 Airlines were being unjustly discriminated against without knowing whether the other airlines had achieved a favorable result with the City, much less whether the result was so favorable as to constitute unjust discrimination against the T1/T3 Airlines. The DOT's decision to base the Final Decision upon what it knew, rather than upon what it might have predicted, was not arbitrary and capricious.
B. Rent Per Square Foot
Both the T1/T3 Airlines and the City find fault with the DOT's treatment of FMV. The T1/T3 Airlines argue the Final Decision is arbitrary and capricious because the DOT failed to explain why, although an airport may not use FMV, as measured by opportunity cost, when setting airfield rental rates, it is permitted to use opportunity cost in setting FMV rates for space inside a terminal. The City objects to the DOT's dual requirements that, in using FMV to set terminal rates, the City may look to the opportunity cost of devoting the space only to "other aeronautical uses," and must use an independent appraiser to determine FMV. Finally, the T1 Airlines argue the DOT erred in holding the City's use of FMV was unreasonable as applied only to the T3 Airlines on the ground that the T1 Airlines had failed to complain to the DOT within the time allotted by statute.
1. Airfield vs. non-airfield space
In LAX I we held the Anti-Head Tax provision of the Federal Aviation Act does not prohibit an airport from considering its opportunity cost in setting airfield fees. 103 F.3d at 1034. We directed the DOT on remand to decide whether an FMV methodology that considers the most valuable alternative use of the land would more accurately "reflect [its] true cost." Id. In Air Transport Association of America v. DOT (ATA), 119 F.3d 38, 40 (1997), we reviewed the subsequent Policy Statement, in which the DOT distinguished between "airfield feesaeronautical fees charged for the use of runways, taxiways, ramps, aprons, and roadway land," and the fees for the use of all other airport space. Id. The Policy Statement required airports to set airfield fees based upon "historic cost" but allowed them to use "any reasonable methodology," including opportunity cost, to set non-airfield fees. Id. In vacating the Policy Statement we observed: "[T]he [DOT] simply has not explained why fair market valuation may be appropriate for other portions of the airport, but [is purportedly] too difficult to use in valuing airfield assets." Id. at 44.
The T1/T3 Airlines argue the DOT has again failed to explain its disparate treatment of fees for airfield and for non-airfield (i.e., terminal) space. The Final Decision merely tracks the Policy Statement, asserting it is "within [the DOT's] discretion" to allow an airport to consider opportunity cost when setting non-airfield fees, Final Decision, 2007 DOT Av. LEXIS 437, at *157, and adds that nothing in the "controlling decisional guidance precludes the use of FMV," id. at *153. Both statements may be true, but neither is a reasoned basis for allowing an airport to use opportunity cost as a measure of FMV for one type of airport space and not another. We must therefore grant the T1/T3 *757 Airlines' petition and again remand the matter to the DOT either to justify or to abandon its disparate treatment of airfield and non-airfield space.
2. Other aeronautical uses of terminal space
Although it approved of using FMV in theory, the DOT went on to hold the City may not base terminal rents upon a measure of FMV that takes account of what non-aeronautical users, such as retail merchants, would be willing to pay for terminal space. The City argues this limitation was arbitrary and capricious because the DOT failed to offer a satisfactory explanation for its disparate treatment of aeronautical and non-aeronautical uses. The DOT supported its position with the observation that "airports have grant assurance obligations to operate the facility for aeronautical purposes." Id. at *152.
In LAX II we upheld the DOT's decision to bar setting airfield rates based upon the opportunity cost of non-aeronautical uses, City of Los Angeles v. DOT, 165 F.3d 972, 977-79 (1999), because the City was legally obligated to use the airfield land as an airport. Id. at 976 ("The Department ... concluded that it would be unreasonable for the City to recover compensation through its landing fees for a `lost opportunity' that does not lawfully exist"). The DOT offers the same rationale to justify the prohibition against considering non-aeronautical uses for space inside the terminal.
Although an airport is obligated to use non-airfield space to support airport services, the DOT does not suggest all non-airfield space must be dedicated solely to aeronautical uses, which would be to deny the obvious; these days commercial airports feature many retail vendors of food, clothing, toiletries, periodicals, and more. A commercial airport foregoes lost opportunities aplenty when it leases to an airline space it could lease to a non-aeronautical tenant. The difference between the airfield and the terminal is that aeronautical and non-aeronautical uses cannot coexist in the airfield; safety, among other reasons, precludes retail or other non-aeronautical operations on the tarmac or runways. In the terminal, by contrast, aeronautical and non-aeronautical businesses are compatible, perhaps even complementary. It makes no sense, therefore, to say the City may not rely upon the rental value of retail space in calculating the FMV of terminal space leased to airlines because "airports have grant assurance obligations to operate the facility for aeronautical purposes." Final Decision, 2007 DOT Av. LEXIS 437, at *152. An airport does not cease to operate for aeronautical purposes because it also rents terminal space to a retailer. The DOT's decision to limit the City's use of FMV to the consideration of lost aeronautical opportunities is therefore arbitrary and capricious. We grant the City's petition in this respect and direct the DOT on remand, either to justify or to abandon its objection to the City's considering non-aeronautical uses when setting terminal rents based upon FMV.
3. Third-party appraisal
The City also argues it was arbitrary and capricious for the DOT to require that it obtain "a neutral third party appraisal," id. at *151, in order to determine the FMV of rental space. The DOT's concern was that the City's "establishment of fair market value was not an objective determination, but rather a determination established ... in-house" by the City itself. Id. at *158. The City objects to the notion that an in-house appraisal may not be objective and reliable. Be that as it may, one need not consult precedents to see that requiring an independent appraisal to ensure an objective determination of the FMV for terminal *758 space is neither arbitrary nor capricious but only a prudent acknowledgement of human nature and institutional incentives.
4. Timeliness of T1 Airlines' objection
An air carrier may appeal to the DOT for review of an airport charge per 49 U.S.C. § 47129(a)(1)(B), as follows:
The Secretary of Transportation shall issue a determination as to whether a fee imposed upon one or more air carriers... by the owner or operator of an airport is reasonable if ... a written complaint requesting such determination is filed with the Secretary by an affected air carrier within 60 days after such carrier receives written notice of the establishment or increase of such fee.
When the T1/T3 Airlines filed their complaint, only the T3 Airlines had received notice that their non-airfield rent would be based upon FMV. The City did not give notice to the T1 airlines until after the complaint had been filed. The ALJ advised the T1 Airlines that because the complaint had already been filed, it was unnecessary to "revise" the complaint in order for the T1 Airlines to join the T3 Airlines' arguments against the City's use of FMV. Upon review, however, the DOT held "[t]he reasonableness of the market method [as applied] to the T1 Carriers ... is outside the scope of this proceeding." Final Decision, 2007 DOT Av. LEXIS 437, at *15 n. 5.
In support of their petition for review by this court, the T1 Airlines argue the ALJ's invitation equitably tolled the 60 day requirement. The DOT responds that the 60 day requirement limits the agency's jurisdiction and therefore could not be equitably tolled.
As the Supreme Court has observed, "the law typically treats a limitations defense as an affirmative defense that the defendant must raise at the pleadings stage and that is subject to rules of forfeiture and waiver .... [and] permit[s] courts to toll the limitations period in light of special equitable considerations." John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 128 S.Ct. 750, 753, 169 L.Ed.2d 591 (2008). Some statutes of limitations however,
seek not so much to protect a defendant's case-specific interest in timeliness as to achieve a broader system-related goal.... The Court has often read the time limits of these statutes as more absolute, ... forbidding a court to consider whether certain equitable considerations warrant extending a limitations period. As a convenient shorthand, the Court has sometimes referred to the time limits in such statutes as "jurisdictional."
Id. (internal citations omitted).
In Zipes v. Trans World Airlines, the Supreme Court held the statute that required filing with the Equal Employment Opportunity Commission a claim under Title VII of the Civil Rights Act of 1964 was not jurisdictional because "it does not speak in jurisdictional terms or refer in any way to the jurisdiction" of the tribunal. 455 U.S. 385, 394, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). Nor does § 47129(a) speak in jurisdictional terms or refer in any way to the Secretary's authority. The statute simply requires the Secretary to issue a determination upon receiving a timely-filed written complaint; it is silent as to whether the Secretary may, in his discretion, act upon a complaint that does not meet all the formalities. Cf. Wilbur v. CIA, 355 F.3d 675, 676-78 (D.C.Cir.2004) (per curiam) (finding jurisdiction where agency, in its discretion, accepted appeal four years after deadline).
The DOT argues its interpretation of the statute is owed deference pursuant to Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694: If the Congress *759 has "directly spoken to the precise question at issue," id. at 842, 104 S.Ct. 2778, then we must "give effect to the unambiguously expressed intent of Congress," id. at 843, 104 S.Ct. 2778; if instead the "statute is silent or ambiguous with respect to the specific issue," then we defer to the DOT's interpretation so long as it is "based on a permissible construction of the statute." Id. Here the statute is silent as to whether the Secretary may exercise his jurisdiction without having received a timely-filed complaint. But the DOT's interpretation is not based upon a permissible construction of the statute because it ignores both John R. Sand & Gravel and Zipes. The former case teaches that a statute of limitations ordinarily serves only as an affirmative defense, 128 S.Ct. at 753, the latter that a statute of limitations is "jurisdictional" only if it speaks in jurisdictional terms.
Consequently we hold the 60-day time limit in 49 U.S.C. § 47129(a) is not a jurisdictional requirement but is rather the type of limitation that, when raised as an affirmative defense, is subject to rules of forfeiture, waiver, and equitable tolling. Accordingly, on remand the DOT must consider any argument the T1 Airlines have preserved that the 60-day limitation ought not be enforced against them.
C. Rentable Space
Because the T1/T3 carriers and the airlines with longterm leases are "making similar use of the airport" but are not "subject to substantially comparable charges," the DOT held the rentable space methodology used by the City ran afoul of the requirement of non-discrimination in 49 U.S.C. § 47107(a)(2). The City disputes neither that the rentable space methodology leads to substantially higher charges for the T1/T3 Airlines, nor that the T1/T3 Airlines and the long-term lessee airlines make similar use of airport common areas. Instead the City argues, as it did before the DOT, that the T1/T3 Airlines are not situated similarly to the long-term tenants, which struck their bargains with LAX more than two decades ago. This distinction, the City contends, creates a "reasonable classification" such that the two groups may lawfully be charged different rates.
The City also argues the Final Decision is contrary to law because the DOT improperly placed upon it the burden of persuasion that the difference in rents was based upon a reasonable classification. In Port Authority of New York and New Jersey v. DOT (Newark), we considered a petition filed by several airlines for review of a DOT decision denying their claim of unjust discrimination under § 47107. 479 F.3d 21, 39-45 (2007). In that case the airport did not charge Continental Airlines certain fees it charged other airlines because Continental, unlike the others, operated and maintained its own terminal. Id. at 42. We held the airline complaining of unjust discrimination had the burden of showing another airline making similar use of the airport was not subject to comparable charges. See id.; 49 U.S.C. § 47107(a)(2). On the other hand, as we said, the statutory exception for a difference based upon a reasonable classification, see 49 U.S.C. § 47107(a)(2)(B), "could arguably be viewed as an affirmative defense," as to which "the agency is free to choose which party bears the burden of proof," 479 F.3d at 42. We were quite clear, however, the DOT "would violate [§ 556(d) of the Administrative Procedure Act] if it placed the full burden of persuasion on the [airport] as to the reasonableness of the proposed fees." Id. at 43 n. 17; see 5 U.S.C. § 556(d) ("the proponent of a[n] ... order has the burden of proof").
Before the DOT in this case, the City argued "it can reasonably distinguish between airlines who signed long-term leases in the 1980s ... on the one hand, and *760 airlines who did not sign leases of that duration ... on the other hand." Final Decision, 2007 DOT Av. LEXIS 437, at *166. In support of this affirmative defense, the City pointed to its need "to expand LAX for the 1984 Olympic Games," which the longterm leases facilitated. Id. at *175. There is indeed evidence in the record that the airlines with long-term leases got them in return for their part in helping LAX secure financing for the needed expansion, whereas at least some of the T1/T3 Airlines declined the same offer. Because the City asserted and placed evidence in the record that the rate differential was based upon a reasonable classification, thus perfecting its affirmative defense, the burden rested upon the complaining T1/T3 Airlines to persuade the DOT that the City's classification was not reasonable. See Newark, 479 F.3d at 43 n.17.
There is no mention in the Final Decision of any evidence the T1/T3 Airlines introduced to show the City's distinction between the long-term tenants and the T1/T3 Airlines was not reasonable; the T1/T3 Airlines simply stated the size of the fee disparity and that the various airlines made similar use of their terminal space. The DOT nonetheless ruled as follows:
Because carriers making similar use are not being charged on a comparable basis, and because [the City] has not offered an adequate justification for this practice, we think the use of the rentable space methodology in [this] context... violates the prohibition against unjust discrimination.
Final Decision, 2007 DOT Av. LEXIS 437, at *149-50. By holding the City's justification "inadequate" without pointing to any evidence to that effect put forward by the T1/T3 Airlines, the DOT effectively assigned the burden of persuasion to the City, whereas the Administrative Procedure Act places that burden squarely upon the complaining airline. 5 U.S.C. § 556(d); see Newark, 479 F.3d at 43 n.17.
Because the DOT failed to require the T1/T3 Airlines to put forward evidence that the City's distinction between long and short-term tenants was unreasonable, the Final Decision contains no discussion of whether the economic conditions facing LAX and the airlines in the 1980s justified the disparate treatment of the long-term tenants. We therefore grant the City's petition to the extent of directing the DOT on remand to revisit the T1/T3 Airlines' complaint of discrimination and to apply to them the burden of persuasion that their disparate treatment is unjust.
D. Monopoly Power
We now turn to the elephant in the room: Whether LAX had monopoly power over the provision of commercial airport services in a relevant geographic market. LAX's monopoly power vel non is relevant both to whether the City could lawfully consider evidence of fair market value to set rental rates for terminal space and to whether the rentable space methodology unjustly discriminated against the T1/T3 Airlines. The extent to which market value may be considered "fair" is surely affected by whether the market is competitive rather than dominated by a government with monopoly power. Whether it was unjust for the City to charge the T1/T3 Airlines, but not the other airlines, rent for a portion of terminal common areas might also be affected by the City's alleged monopoly position; a more competitive market might have led to rent based only upon area used exclusively by an airline. See Ill. Tool Works Inc. v. Indep. Ink, Inc., 547 U.S. 28, 44, 126 S.Ct. 1281, 164 L.Ed.2d 26 (2006) (observing price discrimination "is strong evidence of market power").
In the Policy Statement under review in ATA, the DOT responded this way to airlines' *761 concern that airports would exercise monopoly power in setting fees:
The carriers' claims ... are not supported by the Department's experience.... Airport proprietors generally seek to improve air services for their communities. This objective would be frustrated by charging exorbitant fees for aeronautical facilities.... In the extraordinary situation, the Department would consider airline complaints concerning significant disputes through an expedited administrative procedure (14 CFR Part 302).
Policy Regarding Airport Rates and Charges, 61 Fed.Reg. 31,994, 32,007 (1996). In their complaint, the T1/T3 Airlines unmistakably raised the issue when they alleged the City "has monopoly power over access to LAX, and airlines must have access to LAX on fair and reasonable terms in order to serve the Los Angeles region effectively." Joint Complaint in Opposition to New Terminal Charges at Los Angeles Int'l Airport at 22. The ALJ did not overlook this issue; he found LAX had monopoly power. The DOT, however, disregarded that finding because it said the "issue was not within the scope of the Instituting Order." Final Decision, 2007 DOT Av. LEXIS 437, at * 185.
The Policy Statement clearly stated the DOT would consider whether an airport impermissibly exercised monopoly power if an airline sought its review using the procedure the T1/T3 Airlines followed. The T1/T3 Airlines raised the issue in their complaint, but the DOT failed to include the issue in the Instituting Order. See Instituting Order, Docket No. OST-2007-27331 (Dep't of Transp. March 16, 2007). It was arbitrary and capricious for the DOT, having invited airlines to raise the monopoly power issue, when it was raised to ignore it without good and sufficient reason. On remand the DOT must explain why this case does not present the "extraordinary situation" in which alleged monopoly power is relevant to a fee dispute or, if it cannot, then go on to consider whether LAX had monopoly power in a relevant geographic market.
III. Conclusion
For the foregoing reasons, we grant both the City's and the Airlines' petitions in part, deny both in part, and remand this matter to the DOT for further consideration. With respect to the Airline petitioners, we uphold the increased M & O fees as non-discriminatory, and direct the DOT to explain why an airport may use FMV to set non-airfield rates but not airfield rates. We further hold 49 U.S.C. § 47129(a) is not a jurisdictional statute of limitation and direct the DOT to determine whether the 60 day filing requirement should be tolled with respect to the T1 Airlines. Finally, we direct the DOT on remand to consider whether LAX has monopoly power and, if so, how that affects the City's methods for calculating the rent to be paid by the T1/T3 Airlines.
As to the City's petition, on remand the DOT shall explain or abandon its position that, in establishing the FMV for non-airfield space, the City may consider only "other aeronautical uses." We find no fault with the DOT's requirement that FMV be established by an independent appraisal. Finally, we hold the DOT unlawfully placed the burden of persuasion upon the City to justify its use of different methods for determining rentable space for the T1/T3 Airlines and the long-term tenants.
So Ordered.
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648 So.2d 107 (1994)
Henry Alexander DAVIS, Appellant,
v.
STATE of Florida, Appellee.
No. 80972.
Supreme Court of Florida.
November 10, 1994.
Rehearing Denied February 2, 1995.
*108 James Marion Moorman, Public Defender, and Robert F. Moeller, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., and Randall Sutton, Asst. Atty. Gen., Miami, for appellee.
PER CURIAM.
Henry Alexander Davis appeals his sentence of death imposed after resentencing. We have jurisdiction under article V, section 3(b)(1) of the Florida Constitution.
In March 1987, Davis entered the residence of a seventy-three year old woman, stabbed her to death, and burglarized her home. Davis was convicted of first-degree murder, armed robbery, and burglary. The trial court found four aggravating factors and little mitigation, and sentenced Davis to death for the murder. Davis v. State, 604 So.2d 794 (Fla. 1992).[1] On appeal, this Court affirmed the convictions. Id. at 799. With regard to sentencing issues, the Court determined that the heinous, atrocious, or cruel aggravating factor was proven beyond a reasonable doubt. Id. at 797. However, the Court found that the aggravating factor that the murder was committed for the purpose of avoiding arrest was not supported by the evidence and that the trial court had improperly doubled the burglary and pecuniary gain aggravating factors. Id. at 798. Having struck two of the four aggravating factors, the Court vacated the death sentence, stating:
Because we have eliminated two aggravating circumstances, we cannot say beyond a reasonable doubt that the judge would have imposed the death sentence without consideration of those aggravating factors... . We remand the case to the trial judge to reweigh the evidence in light of our opinion and to impose the appropriate sentence.
Id. at 799.
Prior to resentencing, the trial court denied a defense motion to impanel a new jury, stating that a new jury was not contemplated by this Court's mandate. The trial court also ruled that no additional evidence would be permitted. In light of this Court's opinion, the judge took the position that he only needed to determine whether the two aggravators upheld by this Court, heinous, atrocious, or cruel, and murder committed during a burglary or committed for financial gain, were enough to warrant imposition of the death penalty.
On resentencing, the judge found the following two aggravating factors applicable: (1) the murder was committed during a burglary; and (2) the murder was especially heinous, atrocious, or cruel. § 921.141(5)(d), (h), Fla. Stat. (1985). The judge found no statutory mitigating factors. Regarding non-statutory mitigation, the judge considered Davis's age, schooling, family background, employment, education, and health. The judge concluded that the aggravators outweighed the mitigators and again sentenced Davis to death.
As his first issue on appeal, Davis argues that the application of the heinous, atrocious, or cruel aggravating factor by this Court has been inconsistent, resulting in a lack of guidance to trial judges who are called upon to consider its application in specific factual settings. According to Davis, this failure to apply the aggravator in a rational and consistent manner renders it unconstitutionally vague and leaves the aggravator prone to arbitrary and capricious application. In response, the State argues that this issue is procedurally barred and that it is without merit.
Any issues relating to the constitutionality of the aggravating factors should have and could have been raised at the original trial and direct appeal. Because Davis did not previously raise any issues regarding *109 the constitutionality of the heinous, atrocious, or cruel aggravating factor or the application of the aggravator by this Court, the issue is procedurally barred. Ventura v. State, 560 So.2d 217, 221 (Fla.), cert. denied, 498 U.S. 951, 111 S.Ct. 372, 112 L.Ed.2d 334 (1990); Swafford v. State, 533 So.2d 270, 278 (Fla. 1988), cert. denied, 489 U.S. 1100, 109 S.Ct. 1578, 103 L.Ed.2d 944 (1989). Even if this issue were not barred, it is without merit. This Court has consistently upheld a finding of heinous, atrocious, or cruel where the victim was repeatedly stabbed. Derrick v. State, 641 So.2d 378 (Fla. 1994); Atwater v. State, 626 So.2d 1325, 1329 (Fla. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1578, 128 L.Ed.2d 221 (1994); Hansbrough v. State, 509 So.2d 1081, 1086 (Fla. 1987); Nibert v. State, 508 So.2d 1, 4 (Fla. 1987).
Next, Davis argues that the trial court did not fully comply with this Court's mandate on resentencing. Davis contends that he was entitled to have a new jury impaneled because of alleged errors which Davis claims impermissibly tainted the original jury recommendation. Davis further argues that the trial court erred by failing to allow the defense to present additional mitigating evidence on remand, and that the sentencing order after resentencing is deficient.
In the past, we have recognized that "[o]ur terminology in remanding for resentencing has varied from case to case ... [and] we have allowed trial courts to exercise discretion in resentencing." Lucas v. State, 490 So.2d 943, 945 (Fla. 1986). In Mann v. State, 453 So.2d 784 (Fla. 1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 953 (1985), however, this Court distinguished between a "resentencing" and a "reweighing," stating:
Mann now claims that our first opinion precluded the state from presenting additional evidence. We disagree.
Our remand directed a new sentencing proceeding, not just a reweighing. In such a proceeding both sides may, if they choose, present additional evidence.
Id. at 786. In Oats v. State, 446 So.2d 90, 95-96 (Fla. 1984), this Court held that the trial court erred in finding three of six aggravating factors and remanded to the trial court "for entry of a new sentencing order in accordance with the views expressed [in our opinion]." On appeal after remand, we held that the trial court did not err in failing to impanel a new jury to rehear evidence and make a new sentencing recommendation where the new jury would have considered essentially the same evidence as was presented to the original jury. Oats v. State, 472 So.2d 1143, 1144-45 (Fla.), cert. denied, 474 U.S. 865, 106 S.Ct. 188, 88 L.Ed.2d 157 (1985).
In the instant case, we remanded to the trial court specifically to "reweigh the evidence in light of our opinion." Davis, 604 So.2d at 799 (emphasis added). This mandate did not contemplate impaneling a new jury. Further, the errors on which Davis bases his current claim that his original penalty phase jury was "tainted" were either previously considered, or are not properly before the Court.
First, Davis attacks the penalty phase jury instructions. He contends that the jury was tainted by an instruction on the avoiding lawful arrest aggravating factor. This Court addressed an identical argument in the original direct appeal. We held that the aggravating factor was not supported by the evidence and therefore, the trial court erred in finding it. Davis, 604 So.2d at 798. In his original appeal, Davis argued that the claim entitled him to a new jury. However, the Court implicitly rejected this contention. Instead, we ordered the trial court to reweigh the evidence without considering the avoiding arrest aggravating factor. Next, Davis contends that he was entitled to an instruction telling the jury that it could find either the pecuniary gain aggravating factor or the committed during the course of a burglary aggravating factor, but not both. However, Davis did not request such an instruction, and therefore he is also barred from raising this issue. Derrick; Castro v. State, 597 So.2d 259 (Fla. 1992). Finally, Davis argues that the jury instruction on the heinous, atrocious, or cruel aggravating factor was inadequate under Espinosa v. Florida, ___ U.S. ___, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). This issue is procedurally barred because Davis did not object to *110 the adequacy of the jury instruction either at trial or on his original direct appeal. Melendez v. State, 612 So.2d 1366, 1369 (Fla. 1992), cert. denied, ___ U.S. ___, 114 S.Ct. 349, 126 L.Ed.2d 313 (1993); Johnson v. Singletary, 612 So.2d 575, 577 (Fla.), cert. denied, ___ U.S. ___, 113 S.Ct. 2049, 123 L.Ed.2d 667 (1993); Kennedy v. Singletary, 602 So.2d 1285 (Fla.), cert. denied, ___ U.S. ___, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992).
Davis also makes a vague claim based on Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). However, he points to no judicial error and any such claim should have been made during the first trial or appeal.
Davis's final complaint involves a "Golden Rule" argument made by the prosecutor during closing argument at the penalty phase. We previously addressed this issue in our original opinion, Davis, 604 So.2d at 794, and we decline Davis's invitation to revisit it.
Our decision vacating Davis's original death sentence was based on our holding that the trial court had improperly considered two aggravating factors in reaching the sentence. Our mandate did not contemplate the litigation of issues which should have been, could have been, and in some cases were, disposed of in previous proceedings. Accordingly, we hold that the trial court properly refused to impanel a new jury based on our mandate to "reweigh" the evidence.
We also reject Davis's contention that he was entitled to present new evidence on remand. A "reweighing" does not entitle a defendant to present new evidence. Here, defense counsel attempted to use the remand as an opportunity to obtain a second, full-blown sentencing proceeding. However, in our previous opinion, we found no fault with the evidence presented at the original sentencing. Accordingly, on remand, there was no need for the presentation of additional evidence. See Atkins v. State, 497 So.2d 1200 (Fla. 1986). Davis's claim that the trial court's sentencing order was deficient is also without merit. The sentencing order and the record on remand reflect that the trial court conscientiously reweighed the evidence in accordance with this Court's directives.
Finally, we reject Davis's claim that the death penalty is not proportionately warranted in this case. Accordingly, we affirm Davis's sentence of death.
It is so ordered.
GRIMES, C.J., OVERTON, SHAW, KOGAN and HARDING, JJ., and McDONALD, Senior Justice, concur.
NOTES
[1] A more detailed version of the facts is set forth in this Court's original opinion. Davis, 604 So.2d at 795-96.
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FILED
NOT FOR PUBLICATION DEC 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
INGRID YANETH MARTINEZ DEL No. 11-70168
CID,
Agency No. A072-683-612
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 19, 2012**
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Ingrid Yaneth Martinez Del Cid, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her
appeal from an immigration judge’s order denying her motion to reopen removal
*
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).
proceedings conducted in absentia. Our jurisdiction is governed by 8 U.S.C.
§ 1252. We review for abuse of discretion the agency’s denial of a motion to
reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny in
part and dismiss in part the petition for review.
The agency did not abuse its discretion in denying Martinez Del Cid’s
motion to reopen, where service of notice was proper and she failed to show that
she did not receive her Notice of Hearing. See 8 U.S.C. § 1229(a)(2)(A), (c);
Popa v. Holder, 571 F.3d 890, 897-98 (9th Cir. 2009) (the government satisfies
notice requirements by mailing notice of the hearing to an alien at the address last
provided to the INS); Salta v. INS, 314 F.3d 1076, 1079 (9th Cir. 2002) (an
applicant’s sworn affidavit that neither she nor a responsible party residing at her
address received the notice should ordinarily be sufficient to rebut the presumption
of delivery when the notice of hearing is sent by regular mail).
We reject Martinez Del Cid’s contention that the agency abused its
discretion by failing to consider her equities and the totality of circumstances.
We lack jurisdiction to review Martinez Del Cid’s contention that there was
no proof of delivery for the hearing notice because she failed to raise that issue
before the BIA and thereby failed to exhaust her administrative remedies. See
2 11-70168
Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (this court lacks jurisdiction
to review contentions not raised before the agency).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 11-70168
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57 S.W.3d 677 (2001)
Jason David EDWARDS, Appellant,
v.
The STATE of Texas, Appellee.
No. 09-00-306 CR.
Court of Appeals of Texas, Beaumont.
Submitted September 18, 2001.
Decided October 31, 2001.
*678 James Makin, Beaumont, for appellant.
Tom Maness, Crim. Dist. Atty., Wayln G. Thompson, Assistant Crim. Dist. Atty., Beaumont, for state.
Before WALKER, C.J., BURGESS and GAULTNEY, JJ.
OPINION
RONALD L. WALKER, Chief Justice.
A jury found Jason David Edwards to be guilty of aggravated assault with a deadly weapon on a peace officer, and assessed as punishment a five (5) year term of imprisonment in the Texas Department of Criminal Justice, Institutional Division. The sole issue raised on appeal addresses the legal sufficiency of the evidence regarding the proof of the "assault by threat" element of the offense. See Acts 1983, 68th Leg., R.S., ch. 977, § 1, 1968 Tex. Gen. Laws 5311, 5312.[1]
The indictment alleged Edwards "did... intentionally and knowingly threaten imminent bodily injury to ... the Complainant, by pointing a deadly weapon, to-wit: a firearm at the Complainant...." The victim, Robert Ener, was a uniformed police officer conducting a traffic stop. Edwards was a self-described seventeen-year-old runaway wanna-be Latin King from Heartland, Wisconsin. Edwards listened to "gangsta rap" tapes as he traveled from Orlando, Florida, to Beaumont, Texas, in a stolen Escort. A pact between Edwards and a fellow runaway, Chad Potrykus, pledged on their tattoos that, if they were pulled over by the police, they would get in a shoot-out and would not be taken back alive. Ener decided to follow the Escort because Edwards looked away as he passed the squad car. As Ener's police car approached, Edwards moved a cocked and loaded handgun from under the seat to a position between the seat and the emergency brake. Once the vehicles were stopped, Officer Ener paused at the Escort's rear tire and instructed Edwards to exit the vehicle. Edwards replied, "Don't shoot." As he turned his body towards Ener, Edwards pulled the gun out of its hiding place and moved it in Ener's direction. Unbeknownst to Edwards, *679 Ener's partner, Ricky Anderson, had approached the vehicle on the passenger side. Officer Anderson saw the firearm, realized that his partner was about to be shot, called out "He's got a gun," stepped back, drew his weapon and shot Edwards twice. Anderson testified that at the moment before he decided to fire, Edwards was making a motion towards the driver's window. In response to Officer Anderson's warning, Officer Ener jumped back and drew his weapon.
Edwards argues that the evidence is legally insufficient to prove that he acted with intent to cause a reasonable apprehension of imminent bodily injury, because Officer Ener never saw the gun and Edwards never communicated his possession of the firearm to Ener. Edwards also argues that the evidence is legally insufficient to prove that he pointed the firearm at Ener as alleged in the indictment. We will initially take up the "intent to cause reasonable apprehension" issue.
Simply stated, Edwards argues that in order to "threaten" someone, that threat must be communicated to the victim in some manner. The State argues that the victim need not form any mental impression regarding the threat because assault by threat is a nature-of-conduct offense. See Guzman v. State, 988 S.W.2d 884, 887 (Tex.App.-Corpus Christi 1999, no pet.). "The gist of the offense of assault, as set out in Sec. 22.01(a)(2), is that one acts with intent to cause a reasonable apprehension of imminent bodily injury (though not necessarily with intent to inflict such harm)." Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App.1981). Thus, in order for Edwards to have committed the offense of aggravated assault by threat, the State must prove beyond a reasonable doubt that Edwards intended to place Ener in apprehension of imminent bodily injury by pointing a firearm at Ener. The act of pointing a firearm at someone will, by its nature, cause reasonable apprehension of imminent bodily injury only if the danger is perceived by the victim. Therefore, the State had to prove that Edwards intended Officer Ener to be aware that Edwards was armed.
The conduct prohibited by Section 22.01(a)(2) is making a threat, not pointing a weapon. The particular means of making the threat alleged in this indictment is "by pointing a deadly weapon," but that does not relieve the State of its burden to prove that Edwards threatened Officer Ener with the handgun. There is precedent addressing the sufficiency of the evidence of the threat element of assault offenses charged under Section 22.01(a)(2). We find McGowan v. State, 664 S.W.2d 355 (Tex.Crim.App.1984), to be particularly enlightening. McGowan addressed two convictions, one upon an indictment for aggravated assault by threat committed on a daughter and another for a simultaneous aggravated assault by threat upon a mother. Id. at 357. The Court of Criminal Appeals affirmed one conviction but ordered an acquittal on the other. Id. at 359. After McGowan kicked and stabbed the daughter, she saw McGowan holding the knife and begged him not to cut her, but McGowan threatened her with imminent bodily injury. As the mother tried to rescue the daughter, McGowan stabbed the mother from behind, breaking off the tip of the knife in the mother's cranium. Id. at 357. Then he fled. Although her daughter saw the attack, the mother never saw the knife and did not realize that she had been attacked until she felt the blow. The Court of Criminal Appeals held that the evidence was insufficient to show assault by threat even though the State proved bodily injury. Id. The act of stabbing the mother with the knife clearly placed the victim in danger, but it did not *680 constitute a threat because the victim was unaware of her peril. Here, the evidence supports an inference that Edwards intended to kill Officer Ener but was thwarted by Officer Anderson. As we learned from McGowan, however, Section 22.01(a)(2) requires proof not of an intent to commit an assault by bodily injury, but of an intent to cause in the victim a reasonable apprehension of imminent bodily injury. That is why the use of a weapon constitutes a threat under Section 22.01(a)(2) if the presence of the weapon is perceived by the victim before physical contact occurs.
In Tullos v. State, 698 S.W.2d 488 (Tex. App.-Corpus Christi 1985, pet. ref'd), the appellant stabbed the victim without warning, then walked away. Id. at 490. Notwithstanding his guilty plea, and his punishment phase admission to stabbing the victim, the appellate court found the evidence to be insufficient because evidence of an actual bodily injury is not evidence of a threat. Id.
Richardson v. State, 834 S.W.2d 535, 537 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd), resulted in an acquittal because the appellant shot the victim from behind, without first displaying the gun. On rehearing, the court rejected the State's argument that the jury could have inferred a threat from the fact that the appellant shot the victim a second time. The court acknowledged that a threat may be communicated by conduct, but only if the victim perceives the threatening conduct. Id. Since the first shot was delivered to the head at point blank range, the court held the evidence to be insufficient to support an inference that the victim was alive to perceive his imminent danger.
In Donoho v. State, 39 S.W.3d 324 (Tex. App.-Fort Worth 2001, no pet.), the court found the evidence of threat to be factually sufficient in a case where officers attempting to arrest the appellant realized that their suspect was armed with a gun. The court noted that the appellant was attempting to conceal the weapon from the officers, but found the evidence of threat to be factually sufficient because, once exposed, the appellant thrust the gun in the officer's face and fired a shot, then shouted an expletive and fired a second shot.
The mere presence of a gun was sufficient evidence of threat in DeLeon v. State, 865 S.W.2d 139, 142 (Tex.App.-Corpus Christi 1993, no pet.), and Gaston v. State, 672 S.W.2d 819, 821-22 (Tex.App.-Dallas 1983, no pet.), but in both cases the victim saw the weapon in close proximity. Officer Ener admitted that he couldn't see the handgun. After Officer Anderson warned Ener that Edwards was armed, Edwards continued to turn his body towards Ener, who made a defensive movement backwards before Anderson fired his weapon.
We cannot ignore the affinity this case bears to McGowan and its progeny. Clearly, the proof of intent to threaten with bodily injury cannot be satisfied by evidence of intent to commit bodily injury. Something else is required: proof that the accused acted with the intent to intimidate his victim. Pointing a gun at someone is threatening only if the act is apt to be perceived. Here, Edwards was acting surreptitiously. Once Officer Anderson raised the alarm, however, Edwards was no longer hiding a gun. It was in plain view and Officer Ener was actually aware of the danger. No physical contact had occurred. Therefore, both proof of intent to intimidate and the victim's perception of a threat were present. We turn now to Edwards' complaint of the lack of legally sufficient evidence that he "point[ed] a deadly weapon, ... at [Ener]."
Consistent with the Fourteenth Amendment's guarantee of due process, no *681 criminal defendant may be convicted and punished except upon proof sufficient to persuade a rational fact-finder of the defendant's guilt beyond a reasonable doubt. Tibbs v. Florida, 457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663 (1982); Ladd v. State, 3 S.W.3d 547, 556-57 (Tex. Crim.App.1999). In assessing the legal sufficiency of the evidence, under the Fourteenth Amendment, to support a conviction, we consider all of the record evidence, in the light most favorable to the State and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found the defendant guilty of all of the elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2781, 61 L.Ed.2d 560, 573 (1979); Miles v. State, 918 S.W.2d 511, 512-13 (Tex.Crim.App.1996).
In the instant case, State's Exhibits 14, 15, and 16 were admitted. Each of these exhibits appears to depict an artist's rendition of the sequence of events visually witnessed by Officer Anderson as Edwards drew the weapon up from between the seat and the emergency brake and then turned toward the direction of Officer Ener. State's Exhibit 16 depicts the position of Edwards at the point he was shot, and is described by Officer Anderson as follows:
Q. (State) Okay. And finally, Ricky, I want you to look at State's 16. Tell the jury what that depicts.
A. (Anderson) Mr. Edwards turning towards the driver's side window. I'm anticipating him shooting at my partner. That's the last thing I remember seeing whenever I fired my weapon.
Q. So, that's a fairly significant picture right there.
A. Yes, sir, it is.
Later, on re-direct examination, Officer Anderson again described what he observed Edwards do as Officer Ener stood at the opposite side of the vehicle:
Q. (State) You said it in an interesting way before, what you thought Jason Edwards was going to do when he was in this position. You said, "When I fired, I thought at that time he was about ready to fire."
A. (Anderson) Yes, sir.
Q. In your opinion, Officer, keeping in mind this picture, where Robert is, and this picture, what was Jason Edwards doing with that gun?
A. He was going to shoot Robert.
Q. Where was he pointing it?
A. Robert's direction.
Based upon the testimony of Officer Anderson coupled with the scenes depicted in State's Exhibits 14, 15, and 16, we believe that any rational jury could have found the element of the offense alleging that Edwards pointed the weapon at Robert Ener to have been proven beyond a reasonable doubt, taking into account all reasonable inferences derived from said testimony and exhibits. Issue one is therefore overruled. The judgment and the sentence of the trial court are affirmed.
AFFIRMED.
Justice DAVID B. GAULTNEY, concurring.
Justice DON BURGESS, dissenting.
DAVID B. GAULTNEY, Justice, concurring.
I concur. The evidence established that Edwards' determination to kill Officer Ener endangered Officer Ener even though he did not see the weapon. Officer Anderson saw the weapon as a source of danger, a threat, to Officer Ener and responded to remove the threat. That Edwards acted surreptitiously to hide the *682 threat simply made his behavior more dangerous, more threatening, not less so. I agree with the affirmance of the conviction.
DON BURGESS, Justice, dissenting.
Regretfully, I must dissent. Until the Court of Criminal Appeals overrules McGowan v. State, 664 S.W.2d 355 (Tex. Crim.App.1984), we are bound by it regardless of the participants.[2] I believe it is clear that Officer Ener never saw the weapon and was never threatened or placed in imminent fear by Edwards. The record reflects:
Direct Examination of Ener.
Q Did you ever see the gun that was in his hand?
A No, sir. If I would have been in a position to see the gun then I would have been in a position where it would have been easy to shoot me.
Cross Examination of Ener
Q Officer, before the shots were fired, did you ever see the gun?
A No, sir, I wasn't in a position to see the gun.
....
Q Now, right before the shots were fired, did you hear Mr. Edwards say anything?
A No, sir, I never heard him say anything until after the shots were fired.
....
Q Did you ever get closer to the driver's side than is shown on the video?
A (No response)
Q In other words, however close you got to that car is shown on the video?
A Yes, sir.
Q And if it's at the rear of the car or a little forward to that, it's shown on the video.
A Yes, sir.
Q And you never saw the gun.
A No, sir, I was never standing in a position to see it.
The video tapecomments by Ener
To Officer Anderson: I'm glad you saw that. I couldn't see s* *t, Rick. That's why I stayed back; something, something wasn't right.
Clearly Edwards was a wrongdoer and at least guilty of unlawfully carrying a weapon, Tex. Pen.Code Ann. § 46.02 (Vernon Supp.2001), but under the evidence and case law, he did not threaten Officer Ener because Officer Ener never perceived the threat. I would urge our Court of Criminal Appeals to review this case, overrule McGowan and affirm the majority. But until it does so, I must follow McGowan.
NOTES
[1] For the current version of Section 22.01, see Tex. Pen.Code Ann. § 22.01(a)(2) (Vernon Supp.2001). For the current version of the aggravating elements and punishment element of the offense, the proof of which are not at issue in this appeal, see Tex. Pen.Code Ann. § 22.02(a)(2),(b)(2) (Vernon 1994).
[2] The court also refused to review Tullos v. State, 698 S.W.2d 488 (Tex.App.-Corpus Christi 1985, pet. ref'd), and Richardson v. State, 834 S.W.2d 535 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd).
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2016 IL 119518
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 119518)
MICHAEL RICHTER et al., Appellees, v. PRAIRIE FARMS DAIRY, INC.,
Appellant.
Opinion filed May 19, 2016.
JUSTICE FREEMAN delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Thomas, Kilbride, Karmeier, Burke, and
Theis concurred in the judgment and opinion.
OPINION
¶1 Following a voluntary dismissal, plaintiffs, Michael Richter and Denise
Richter, doing business as Rich-Lane Farms, refiled their civil action against
defendant, Prairie Farms Dairy, Inc. The circuit court of Macoupin County
dismissed the refiled action pursuant to section 2-619 of the Code of Civil
Procedure on the grounds of res judicata and the statute of limitations. 735 ILCS
5/2-619(a)(4), (a)(5) (West 2012). The appellate court reversed and remanded for
further proceedings. 2015 IL App (4th) 140613. This court allowed defendant’s
petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015). We now affirm the
judgment of the appellate court.
¶2 I. BACKGROUND
¶3 The pleadings alleged the following facts, which we accept as true in the
context of a dismissal pursuant to section 2-619. See Board of Managers of the
Village Centre Condominium Ass’n v. Wilmette Partners, 198 Ill. 2d 132, 134
(2001). Plaintiffs are partners in the business of dairy farming. Defendant is an
agricultural cooperative (see 805 ILCS 315/1 et seq. (West 2014)) in the business
of producing and supplying dairy products. In August 1980, plaintiffs became
members of defendant’s cooperative, paid $15 for shares of defendant’s common
stock, and entered into a “Milk Marketing Agreement” with defendant. According
to the agreement, plaintiffs would provide defendant with whole milk, which
defendant would market and sell.
¶4 In April 2005, plaintiffs temporarily ceased milk production. However,
plaintiffs had “hoped and expected to resume production within one year and [had]
retained their stock of heifers to enable them to do so.” At that time, defendant’s
bylaws provided, in pertinent part, as follows:
“Section 8. Termination of Stock Interest. Any common stockholder who
ceases to be a producer of agricultural products or who fails to patronize the
association for one (1) fiscal year or who violates any provision of the Articles
of Incorporation, the Bylaws, or a marketing agreement shall forfeit his right to
own Common Stock in this association when evidence of such fact has been
presented to the Board of Directors and upon passage of a resolution by the
Board finding such to be the fact, immediately thereupon all the rights of such
common stockholder shall cease ***. Upon termination of membership, the
Board shall redeem the outstanding Common Stock of the terminating member
by payment to the member of the actual dollar consideration paid by the
member for such Common Stock.”
Defendant became aware that plaintiffs temporarily ceased milk production no later
than April 30, 2005.
¶5 In an October 2005 letter, defendant notified plaintiffs that it had terminated
their agreement and plaintiffs’ membership in the cooperative. The letter contained
two alternative reasons for its actions: “You were no longer marketing milk as an
active producer of Prairie Farms, as set forth in the By-Laws, at the end of the fiscal
year ending 9/30/05,” or “During the current fiscal year, there was a change in the
way your membership was recorded in our books (name change, etc.).” Defendant
-2-
tendered $15 to plaintiffs to redeem the shares of common stock, but plaintiffs
rejected the payment.
¶6 A. Richter I
¶7 In October 2006, plaintiffs filed a three-count complaint against defendant in
the circuit court of Madison County. Plaintiffs alleged that they sustained damages
as a result of defendant’s termination of their agreement and plaintiffs’ membership
in the cooperative. Count I sought shareholder remedies pursuant to section 12.56
of the Business Corporation Act of 1983 (Business Corporation Act) (805 ILCS
5/12.56 (West 2006)). Based on defendant’s alleged concealment, suppression, or
omission of its interpretation of section 8 of its bylaws, count II alleged a claim
pursuant to the Illinois Consumer Fraud and Deceptive Business Practices Act
(Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2006)), and count III alleged
common-law fraud.
¶8 Defendant moved to dismiss the complaint, arguing that each count failed to
state a claim upon which relief may be granted. See 735 ILCS 5/2-615 (West
2006)). Defendant asked the circuit court to “dismiss Counts I through III of the
Complaint with prejudice as a matter of law.”
¶9 On September 26, 2007, the circuit court ruled on defendant’s motion in a
written order, which stated in pertinent part:
“Defendant’s Motion to Dismiss as to Counts I, II, and III are heard and
argued.
Defendant’s motion as to Count I is denied.
Defendant’s Motion to Dismiss as to Counts II and III are granted.
Plaintiff[s] given leave to file amended complaint within 30 days.
Defendant given leave to file response to amended complaint within 30
days after plaintiff’s filing of the same.
Defendant to answer Count I within 30 day[s] of [today’s] order.”
-3-
On October 24, 2007, plaintiffs moved for an extension of time to file an amended
complaint. On November 28, 2007, the circuit court granted plaintiffs an extension
of 120 days. However, plaintiffs never filed an amended complaint. Instead, the
case proceeded on plaintiffs’ sole remaining claim for shareholder remedies
pursuant to the Business Corporation Act as stated in count I.
¶ 10 In June 2011, the circuit court allowed plaintiffs’ attorney to withdraw. The
court stayed discovery deadlines and granted plaintiffs a continuance to find new
counsel. In November 2011, plaintiffs’ current attorney entered his appearance.
Beginning in February 2012, plaintiffs sought extensions of time to comply with
discovery requests. On July 13, 2012, the court granted plaintiffs 30 days to
disclose additional experts. On August 13, 2012, plaintiffs moved for a two-week
extension to disclose expert witnesses. On September 7, 2012, the court denied
plaintiffs’ request for a continuance. Plaintiffs then moved to voluntarily dismiss
their lawsuit without prejudice, which the court granted pursuant to section 2-1009
of the Code of Civil Procedure (735 ILCS 5/2-1009 (West 2012)).
¶ 11 B. Richter II
¶ 12 On September 6, 2013, plaintiffs filed their four-count complaint. Count I
sought shareholder remedies. Based on defendant’s alleged concealment,
suppression, or omission of its interpretation of section 8 of its bylaws, count II
alleged misrepresentation, and count III alleged common-law fraud. Count IV
alleged that defendant’s directors or officers breached their fiduciary duty owed to
plaintiffs. In December 2013, the circuit court of Madison County granted
defendant’s motion to transfer venue to Macoupin County.
¶ 13 In February 2014, defendant filed a combined motion to dismiss Richter II with
prejudice. See 735 ILCS 5/2-619.1 (West 2012). Defendant contended, inter alia,
that the doctrine of res judicata barred plaintiffs’ claims in Richter II and,
alternatively, that the five-year statute of limitations (see 735 ILCS 5/13-205 (West
2012)) barred plaintiffs’ claims for misrepresentation, fraud, and breach of
fiduciary duty. In June 2014, following a hearing, the circuit court of Macoupin
County granted defendant’s motion to dismiss Richter II based on res judicata and
the statute of limitations. 735 ILCS 5/2-619(a)(4), (a)(5) (West 2012).
-4-
¶ 14 Plaintiffs appealed. The appellate court held that the doctrine of res judicata did
not bar plaintiffs from filing Richter II. The court recognized that one of the
requirements for res judicata to apply was a final judgment on the merits. 2015 IL
App (4th) 140613, ¶ 23. The court concluded that the circuit court’s order
dismissing the fraud counts in Richter I was not a final order. Id. ¶ 26. Thus, the
doctrine of res judicata did not bar plaintiffs from refiling their action. Id. ¶ 36. The
appellate court also held that the five-year statute of limitations (735 ILCS
5/13-205 (West 2012)) did not bar Richter II. The court agreed with plaintiffs that
the limitations savings statute (735 ILCS 5/13-217 (West 1994)) permitted the
refiled action. 2015 IL App (4th) 140613, ¶¶ 37-42. The appellate court reversed
the dismissal and remanded the case to the circuit court for further proceedings. Id.
¶ 46.
¶ 15 Defendant appeals to this court. We granted the Illinois Association of Defense
Trial Counsel leave to submit an amicus curiae brief in support of defendant. We
also granted the Illinois Trial Lawyers Association leave to submit an amicus
curiae brief in support of plaintiffs. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).
Additional pertinent background will be discussed in the context of our analysis of
the issues.
¶ 16 II. ANALYSIS
¶ 17 Defendant contends that the appellate court erred in reversing the circuit court’s
section 2-619 dismissal of Richter II. Defendant argues that Richter II was barred
by (A) the doctrine of res judicata, (B) the rule against claim-splitting, (C) the
statute of limitations, and (D) the equitable doctrine of laches.
¶ 18 A section 2-619 motion provides for the involuntary dismissal of a cause of
action based on certain defects or defenses. 735 ILCS 5/2-619 (West 2012). In
ruling on the motion, the circuit court must interpret all pleadings and supporting
documents in the light most favorable to the nonmoving party. Porter v. Decatur
Memorial Hospital, 227 Ill. 2d 343, 352 (2008); Borowiec v. Gateway 2000, Inc.,
209 Ill. 2d 376, 383 (2004). A section 2-619 motion to dismiss presents a question
of law, which we review de novo. In re Estate of Boyar, 2013 IL 113655, ¶ 27;
Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 411 (2002).
-5-
¶ 19 A. Res Judicata
¶ 20 Defendant contends that the circuit court correctly dismissed Richter II
pursuant to section 2-619(a)(4) of the Code of Civil Procedure, which provides for
dismissal where the action “is barred by a prior judgment.” 735 ILCS 5/2-619(a)(4)
(West 2012). This provision allows a defendant to raise the affirmative defense of
res judicata. Morris B. Chapman & Associates, Ltd. v. Kitzman, 193 Ill. 2d 560,
565 (2000).
¶ 21 The doctrine of res judicata provides that a final judgment on the merits
rendered by a court of competent jurisdiction bars a subsequent action between the
same parties or their privies involving the same cause of action. The bar extends not
only to what was actually decided in the prior action, but also to those matters that
could have been decided. Three requirements must be satisfied for res judicata to
apply: (1) a final judgment on the merits rendered by a court of competent
jurisdiction, (2) an identity of cause of action, and (3) an identity of parties or their
privies. Wilson v. Edward Hospital, 2012 IL 112898, ¶ 9; Hudson v. City of
Chicago, 228 Ill. 2d 462, 467 (2008); Rein v. David A. Noyes & Co., 172 Ill. 2d 325,
334-35 (1996). The underlying policy of res judicata is to promote judicial
economy by preventing repetitive litigation and to protect a defendant from the
harassment of relitigating essentially the same claim. See Hayashi v. Illinois
Department of Financial & Professional Regulation, 2014 IL 116023, ¶ 45
(quoting Arvia v. Madigan, 209 Ill. 2d 520, 533 (2004)).
¶ 22 The requirement of a final order or judgment is a “critical” component in
showing the applicability of res judicata. Hernandez v. Pritikin, 2012 IL 113054,
¶ 41. A judgment cannot bar a subsequent action unless it is a “final” judgment.
Relph v. Board of Education of DePue Unit School District No. 103, 84 Ill. 2d 436,
441 (1981); People ex rel. Scott v. Chicago Park District, 66 Ill. 2d 65, 69 (1976).
The party invoking res judicata carries the burden of establishing its applicability.
Hernandez, 2012 IL 113054, ¶ 41; Chicago Historical Society v. Paschen, 9 Ill. 2d
378, 382 (1956).
¶ 23 The parties agree that the second and third elements of res judicata have been
satisfied. However, the appellate court concluded that the circuit court’s September
2007 dismissal order in Richter I was not a final order, and, consequently, the bar of
res judicata did not apply. 2015 IL App (4th) 140613, ¶¶ 26, 36. Before this court,
defendant assigns error to this conclusion. Defendant asserts that the dismissal of
-6-
plaintiffs’ Consumer Fraud Act and common-law fraud claims in Richter I
“became a final order on the merits” when plaintiffs did not amend the complaint,
or seek appeal of that dismissal, but rather voluntarily dismissed the action.
¶ 24 To be “final,” a judgment or order must terminate the litigation and fix
absolutely the parties’ rights, leaving only enforcement of the judgment. In re
Detention of Hardin, 238 Ill. 2d 33, 42-43 (2010); Village of Niles v. Szczesny, 13
Ill. 2d 45, 48 (1958). In determining when a judgment or order is final, one should
look to its substance rather than its form. In re J.N., 91 Ill. 2d 122, 128 (1982).
Illinois Supreme Court Rule 273 provides: “Unless the order of dismissal or a
statute of this State otherwise specifies, an involuntary dismissal of an action, other
than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an
indispensable party, operates as an adjudication upon the merits.” (Emphasis
added.) Ill. S. Ct. R. 273 (eff. Jan. 1, 1967). If a circuit court involuntarily dismisses
a plaintiff’s action, other than for one of the rule’s three exceptions, and if the
plaintiff does not procure leave of court to refile the complaint or if a statute does
not guarantee that opportunity, then Rule 273 deems the dismissal to be on the
merits. DeLuna v. Treister, 185 Ill. 2d 565, 575 (1999). However, a dismissal
“without prejudice” signals that there was no final decision on the merits and that
the plaintiff is not barred from refiling the action. See DeLuna, 185 Ill. 2d at 576;
People ex rel. Redd v. Mulholland, 134 Ill. App. 3d 929, 930-31 (1985).
¶ 25 The Code of Civil Procedure provides that the circuit court may allow
amendments to pleadings “[a]t any time before final judgment.” 735 ILCS
5/2-616(a) (West 2012). A dismissal order that grants leave to amend is
interlocutory and not final. Palm v. 2800 Lake Shore Drive Condominium Ass’n,
2013 IL 110505, ¶ 21; Old Salem Chautauqua Ass’n v. Illinois District Council of
the Assembly of God, 13 Ill. 2d 258, 262 (1958) (stating that order partially striking
pleading and granting leave to amend is not final); see Hicks v. Weaver, 255 Ill.
App. 3d 650, 652 (1994). An order that dismisses the counts of a complaint, but
grants the plaintiff leave to amend, is not “final” because the order does not
terminate the litigation between the parties. March v. Miller-Jesser, Inc., 202 Ill.
App. 3d 148, 158-59 (1990); Gray v. Starkey, 41 Ill. App. 3d 555, 558 (1976). A
dismissal with leave to amend is consequently without prejudice. See Dewan v.
Ford Motor Co., 343 Ill. App. 3d 1062, 1070 (2003); Perkins v. Collette, 179 Ill.
App. 3d 852, 854 (1989); Redd, 134 Ill. App. 3d at 930-31. Accordingly, for
purposes of Rule 273, where a dismissal order does not specify that it is “without
prejudice,” or that plaintiff was granted leave to file an amended complaint, the
-7-
dismissal order is a final adjudication on the merits. See Kostecki v. Dominick’s
Finer Foods, Inc., of Illinois, 361 Ill. App. 3d 362, 373 (2005) (collecting cases).
¶ 26 In Richter I, defendant moved to dismiss the complaint based on insufficient
facts alleged in each count. The involuntary dismissal order expressly granted
plaintiffs leave to file an amended complaint within 30 days. Hence, there was no
“adjudication upon the merits” in Richter I because “the order of dismissal ***
otherwise specifie[d]” that plaintiffs had leave to file an amended complaint. Ill. S.
Ct. R. 273. See Hernandez, 2012 IL 113054, ¶ 47; Stutzke v. Edwards, 58 Ill. App.
3d 832, 834-35 (1978).
¶ 27 Defendant distinguishes an involuntary dismissal order that grants leave to
amend from an involuntary dismissal order that grants leave to amend within a time
period. In its brief, defendant argues: “If the leave period ‘otherwise specifie[d]’ by
the court expires and no action is taken by the plaintiff, Rule 273 operates to default
the involuntary dismissal order to an ‘adjudication on the merits.’ ” We observe
that during oral argument, defendant argued that a plaintiff is responsible for the
consequences of failing to amend within a prescribed time period because the order
is directed to the plaintiff. Indeed, defendant asserted that there was no rule even
allowing a defendant to move for a final dismissal order where a dismissal order
has a leave-to-amend time period and the plaintiff fails to timely amend. We cannot
agree.
¶ 28 Defendant attempts to create an “automatic final judgment” mechanism that
would absolve it of any responsibility for this prolonged litigation. However,
defendant’s argument overlooks a significant body of case law. Initially, this court
has repeatedly recognized the inherent power of the circuit court to review, modify,
or vacate interlocutory orders while the court retains jurisdiction over the entire
controversy. Hernandez, 2012 IL 113054, ¶ 42 (collecting cases); Catlett v. Novak,
116 Ill. 2d 63, 68 (1987) (collecting cases). Accordingly, where, as in this case, the
circuit court dismisses a complaint, and specifies a number of days for filing an
amended complaint, the court retains jurisdiction to allow the amended complaint
to be filed even after the time period has expired. Richardson v. Economy Fire &
Casualty Co., 109 Ill. 2d 41, 46 (1985) (collecting cases); Miller v. Suburban
Medical Center at Hoffman Estates, Inc., 184 Ill. App. 3d 545, 547 (1989)
(collecting cases). By failing to ask for leave to amend after the circuit court enters
an order dismissing a complaint, a plaintiff elects to stand on the complaint and a
subsequent order dismissing the suit may be entered. Doner v. Phoenix Joint Stock
-8-
Land Bank of Kansas City, 381 Ill. 106, 108-09 (1942). Even if a plaintiff
subsequently elects to stand on his or her complaint, an order striking or dismissing
a complaint is not final until a subsequent order finally dismisses the action or suit.
See Boatmen’s National Bank of Belleville v. Direct Lines, Inc., 167 Ill. 2d 88, 99
(1995) (collecting cases); Cole v. Hoogendoorn, Talbot, Davids, Godfrey &
Milligan, 325 Ill. App. 3d 1152, 1153-54, 1156 (2001); Miller, 184 Ill. App. 3d at
547 (collecting cases); Martin v. Marks, 80 Ill. App. 3d 915, 919 (1980).
¶ 29 However, defendant relies on this court’s decision in Smith v. Central Illinois
Regional Airport, 207 Ill. 2d 578 (2003), in support of its “automatic final
judgment” mechanism. In Smith, the dismissal order granted the plaintiff 60 days to
amend the complaint. The plaintiff did not amend but instead filed a motion for a
voluntary dismissal (735 ILCS 5/2-1009 (West 2012)) within the 60-day period.
Smith, 207 Ill. 2d at 588-89. This court held that the circuit court should have
allowed the plaintiff’s voluntary dismissal because it was within the time period
granted for leave to amend. In analyzing the nature and effect of the dismissal
order, this court stated:
“He [plaintiff] also could have elected, as he did here, to voluntarily dismiss the
count because the upshot of the court’s February 27 order was that the granting
of defendants’ section 2-615 motion would be considered to be with prejudice
only after the expiration of the 60-day period.” (Emphases in original and
added.) Id. at 588.
In the case at bar, defendant focuses on the italicized sentence fragment to argue:
“Smith specifically directs that an involuntary dismissal order becomes a final
adjudication on the merits after the expiration of the temporary leave period.”
¶ 30 We do not read our opinion in Smith so broadly. Courts caution that “ ‘general
language in an opinion must not be ripped from its context to make a rule far
broader than the factual circumstances which called forth the language.’
[Citation.]” Rosewood Care Center, Inc. v. Caterpillar, Inc., 226 Ill. 2d 559, 572
(2007). Rather, the Smith opinion, “like all others, must be read in the context of the
specific problem that was before the court.” Touhy v. State Board of Elections, 62
Ill. 2d 303, 310 (1976); see Spring Hill Cemetery of Danville, Illinois v. Ryan, 20
Ill. 2d 608, 619 (1960) (cautioning that a judicial opinion “must be read as
applicable only to the facts involved and is an authority only for what is actually
decided”). “In construing the language of this court, as in construing any other
-9-
language, it is necessary to examine the context to find the connection in which the
language is used and to ascertain what was intended by such language.” Hoffman v.
Hoffman, 330 Ill. 413, 420 (1928).
¶ 31 To the end of construing our Smith decision in context, we quote at length
therefrom:
“In the present case, it is true that defendants challenged the sufficiency of
count III by way of a section 2-615 motion on December 29, 2000, and that the
circuit court heard the motion prior to plaintiff’s filing of his motion to
voluntarily dismiss. The court had, in fact, ruled in defendants’ favor by
dismissing count III. Contrary to defendants’ claims, however, that ruling did
not have the effect of a final disposition of the case because the court made the
dismissal without prejudice and gave plaintiff 60 days in which to file an
amendment. As we have explained, the order of February 27 was not a final
order. An order striking or dismissing a complaint is not final until the circuit
court enters an order dismissing the suit. [Citations.] We must stress that no
such order was entered in this case. Moreover, the circuit court made clear that
no such order would be entertained until at least after the passage of 60 days.
For all we know, the circuit court might even have allowed plaintiff more time
to amend had plaintiff sought leave to do so. We stress, as the United States
Supreme Court in [Jung v. K. & D. Mining Co., 356 U.S. 335, 336-37 (1958)]
stressed under similar facts, that the circuit court’s order did not direct that the
requested relief be denied but, rather, left the suit pending for further
proceedings.
“In our view, because the order of February 27 expressly left the suit
pending for further proceedings, the order not only allowed plaintiff the
opportunity to amend, but also allowed plaintiff to pursue other options
available to him during this 60-day time frame besides filing the amendment.
Plaintiff could have chosen to stand on his complaint and sought an order
dismissing the complaint with prejudice, as a means of obtaining a final,
appealable judgment. [Citations.] He also could have elected, as he did here, to
voluntarily dismiss the count because the upshot of the court’s February 27
order was that the granting of defendants’ section 2—615 motion would be
considered to be with prejudice only after the expiration of the 60-day period.
Under these circumstances, the circuit court should have allowed plaintiff to
seek a voluntary dismissal up until the expiration of the 60-day period to
- 10 -
amend. In its order, entered on May 2, the circuit court stated that plaintiff
failed to act within the 60-day time period. Clearly this was error. We note that
plaintiff’s motion to voluntarily dismiss was filed on April 12, 2001, on day 48
of the 60-day time period set forth in the February 27 order. The circuit court
erred in its calculation that the 60-day period had passed without any action on
plaintiff’s part. This is not the case where the plaintiff waited until the
sixty-first day to seek voluntary dismissal. Because plaintiff acted within the
period of time left open for amendment, we believe his right to a voluntary
dismissal was intact.” (Emphasis in original.) Smith, 207 Ill. 2d at 587-89.
¶ 32 When read in context, Smith did not hold that an involuntary dismissal order
automatically becomes a final adjudication on the merits after a leave-to-amend
time period expires. The plaintiff in Smith filed a motion for voluntary dismissal
within the 60-day leave-to-amend time period. Smith expressly recognized that the
circuit court retained jurisdiction to allow the plaintiff more time to amend had he
sought leave and that the dismissal order was not final and would not be final until
the circuit court entered a separate order dismissing the action or suit. Id. at 587-88.
In Smith, this court specifically concluded that the plaintiff’s right to a voluntary
dismissal was intact because he acted within the leave-to-amend time period. Id. at
589.
¶ 33 Although the Smith court conjectured that the dismissal order in that case would
have been considered to be with prejudice only after the leave-to-amend period
expired, that speculation was unnecessary to the court’s actual conclusion. This
court did not know how that litigation would have proceeded after the
leave-to-amend period expired. Id. at 588 (“For all we know, the circuit court might
even have allowed plaintiff more time to amend had plaintiff sought leave to do
so.”). In context, this court was merely attempting to emphasize the security of
plaintiff’s position within the 60-day period. This court did not intend to overrule a
significant body of case law by this single sentence. “We resist reading a single
sentence unnecessary to the decision as having done so much work.” Arkansas
Game & Fish Comm’n v. United States, 568 U.S. ___, ___, 133 S. Ct. 511, 520
(2012).
¶ 34 Defendant complains that the above-cited case law provides “no consequences
for a plaintiff’s failure to act within the temporary leave period. *** Accordingly,
there would never be a need to dismiss a claim or complaint with temporary leave
- 11 -
to amend because the plaintiff would never be compelled to take any action within
the temporary leave period.”
¶ 35 However, this argument overlooks that the circuit court may impose whatever
“consequences” that defendant would seek in a proper motion. The circuit court
retains broad discretion in allowing or denying amendment to pleadings prior to the
entry of final judgment, and a reviewing court will not reverse the trial court’s
decision absent a manifest abuse of such discretion. Loyola Academy v. S&S Roof
Maintenance, Inc., 146 Ill. 2d 263, 273-74 (1992) (collecting cases). Further, the
Code of Civil Procedure provides that a circuit court may allow amendments to
pleadings “on just and reasonable terms.” 735 ILCS 5/2-616(a) (West 2010). Such
“just and reasonable terms” may include the enforcement of a time limitation
within which the amended pleading must be filed. See, e.g., Nicholson v. Chicago
Bar Ass’n, 233 Ill. App. 3d 1040, 1045 (1992); Shroat v. Robins, 7 Ill. App. 3d 293,
295 (1972). Conversely, the court may permit amendment long after the time
period expires. Richardson, 109 Ill. 2d at 46. This rule supports the circuit court’s
sound exercise of its discretion. “A contrary course would amount to a substitution
of the judgment of the reviewing court in place of that of the trial court in which
such discretion properly resides.” Nicholson, 233 Ill. App. 3d at 1045. See, e.g.,
Bosch Die Casting Co. v. Biallas, 269 Ill. App. 3d 377 (1995) (granting leave to file
second amended complaint 25 days after court-imposed deadline, but denying
leave to file third amended complaint 71 days after court-imposed deadline). We
conclude that the involuntary dismissal order in Richter I did not automatically
become a final order when plaintiffs failed to file an amended complaint within the
leave-to-amend period.
¶ 36 In the case at bar, defendant moved to dismiss Richter I and Richter II each with
prejudice. Defendant, therefore, knew the legal significance of such a dismissal
order. Although nearly five years elapsed between the time plaintiffs were granted
leave to file an amended complaint and their voluntary dismissal, defendant did not
seek a final order dismissing Richter I with prejudice, definitively ending the
action. “[A] party claiming res judicata—as the party bearing the burden of
showing that res judicata applies—has a duty to clarify the record so as to clearly
demonstrate his entitlement to the doctrine’s application.” (Emphasis in original.)
Hernandez, 2012 IL 113054, ¶ 52. We conclude that defendant has failed to carry
this burden.
- 12 -
¶ 37 B. Claim Splitting
¶ 38 Defendant next contends that the dismissal order in Richter I became a final
judgment when the court granted plaintiffs’ motion to voluntarily dismiss the sole
remaining shareholder remedies claim. Therefore, according to defendant,
plaintiffs engaged in improper claim splitting by “refiling the entirety of Richter I,
including claims that Plaintiffs elected to abandon five years prior, as a new action
in Richter II.” Alternatively, defendant argues that plaintiff had a “limited” right to
refile only the shareholder remedies claim alleged in count I of Richter I.
¶ 39 We cannot accept this contention. The circuit court granted plaintiffs’ motion
for a voluntary dismissal of Richter I pursuant to section 2-1009 of the Code of
Civil Procedure (735 ILCS 5/2-1009 (West 2010)). A voluntary dismissal pursuant
to section 2-1009 terminates the entire action and renders immediately appealable
all final orders entered therein that were not previously appealable. Hudson, 228 Ill.
2d at 468; Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 503
(1997). However, this court’s decisions in Rein and Hudson explained that res
judicata prohibits a litigant from using section 2-1009 to split claims into multiple
actions or suits. Hudson, 228 Ill. 2d at 471-72; Rein, 172 Ill. 2d at 339. In Rein, this
court cautioned that a plaintiff’s statutory right to a voluntary dismissal within the
limitations period (735 ILCS 5/13-217 (West 2010)) does not “automatically
immunize a plaintiff against the bar of res judicata or other legitimate defenses a
defendant may assert in response to the refiling of voluntarily dismissed counts.”
Rein, 172 Ill. 2d at 342-43. In Hudson, this court explained: “Rein thus stands for
the proposition that a plaintiff who splits his claims by voluntarily dismissing and
refiling part of an action after a final judgment has been entered on another part of
the case subjects himself to a res judicata defense.” (Emphasis added.) Hudson,
228 Ill. 2d at 473.
¶ 40 Rein and Hudson are clearly distinguishable from the instant case. Here, the
circuit court never entered an order dismissing the action in Richter I, or any other
order that could be deemed final. A nonfinal order cannot bar a subsequent action.
Relph, 84 Ill. 2d at 441. Because Richter I was dismissed with leave to file an
amended complaint, there was no final adjudication on the merits of any of those
three claims. Further, a voluntary dismissal pursuant to section 2-1009(a) is, by its
express terms, without prejudice. 735 ILCS 5/2-1009(a) (West 2010). Of course, it
was within the discretion of the circuit court in Richter I to entertain a defense
motion for a final order dismissing the cause of action prior to ruling on plaintiffs’
- 13 -
motion for voluntary dismissal. See Morrison v. Wagner, 191 Ill. 2d 162, 165
(2000). However, defendant did not raise such a motion. Without a final
adjudication on the merits, the claim-splitting issues addressed in Rein and Hudson
are not presented here, and res judicata is not applicable. See Piagentini v. Ford
Motor Co., 387 Ill. App. 3d 887, 893-95 (2009). Hence, the circuit court’s nonfinal
ruling in Richter I had no effect on Richter II. See Wilson, 2012 IL 112898, ¶ 26;
Hernandez, 2012 IL 113054, ¶ 54; People ex rel. Williams v. Board of Education of
Pawnee Township High School, 350 Ill. 597, 601 (1932).
¶ 41 C. Statute of Limitations
¶ 42 Defendant alternatively contends that the circuit court correctly dismissed
Richter II pursuant to section 2-619(a)(5) of the Code of Civil Procedure, which
provides for dismissal where the action “was not commenced within the time
limited by law.” 735 ILCS 5/2-619(a)(5) (West 2012). This provision allows a
defendant to raise a statute of limitations defense in a motion to dismiss. See
Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 84 (1995).
¶ 43 The complaint in Richter II contained four counts. Plaintiffs sought shareholder
remedies (count I), alleged misrepresentation (count II), alleged common-law fraud
(count III), and alleged that defendant’s directors or officers breached their
fiduciary duty owed to plaintiffs (count IV). It is undisputed that the cause of action
in Richter II accrued in October 2005 when defendant terminated the milk
marketing agreement and plaintiffs’ membership in the cooperative and that
plaintiffs filed the complaint in Richter II on September 6, 2013. Defendant
contends that plaintiffs’ claims for misrepresentation, fraud, and breach of
fiduciary duty were not commenced within the applicable five-year statute of
limitations (735 ILCS 5/13-205 (West 2012)) and, therefore, are time-barred. In
response, plaintiffs contend that section 13-217 of the Code of Civil Procedure (735
ILCS 5/13-217 (West 2012)) saves these claims.
¶ 44 Section 13-217 provides in pertinent part that if the plaintiff voluntarily
dismisses a cause of action, “then, whether or not the time limitation for bringing
such action expires during the pendency of such action, the plaintiff *** may
commence a new action within one year or within the remaining period of
limitation, whichever is greater *** after the action is voluntarily dismissed by the
- 14 -
plaintiff.” 735 ILCS 5/13-217 (West 1994). 1 Section 13-217 operates as a
limitations savings statute, with the purpose of facilitating the disposition of
litigation on the merits and avoiding its frustration upon grounds unrelated to its
merits. Case v. Galesburg Cottage Hospital, 227 Ill. 2d 207, 215 (2007); Gendek v.
Jehangir, 119 Ill. 2d 338, 343 (1988).
¶ 45 Although the cause of action in Richter II accrued in October 2005, plaintiffs
filed Richter I in October 2006, well within the applicable five-year limitations
period. Further, after plaintiffs voluntarily dismissed Richter I on September 7,
2012, section 13-217 conferred on plaintiffs the right to refile within one year even
if the statute of limitations had expired. As the appellate court correctly reasoned,
plaintiffs, therefore, had until September 7, 2013, to refile their action.
Accordingly, when plaintiffs refiled their action on September 6, 2013, the
limitations savings period had not yet expired. 2015 IL App (4th) 140613, ¶ 41.
¶ 46 However, defendant contends that section 13-217 is not available to plaintiffs.
Defendant argues that Richter I was not terminated by plaintiffs’ voluntary
dismissal, which section 13-217 covers, but rather was terminated by the
September 2007 involuntary dismissal order with leave to amend. This argument is
premised on defendant’s position that the Richter I dismissal order with leave to
amend automatically defaulted to an adjudication on the merits. We reject this
argument as we earlier rejected its premise. We deem plaintiffs’ September 2012
voluntary dismissal to be the effective order finally terminating Richter I. See
Apollo Real Estate Investment Fund, IV, L.P. v. Gelber, 398 Ill. App. 3d 773,
785-86 (2009).
¶ 47 Defendant also repeats its contention before the appellate court that plaintiffs
may not raise new claims in a refiled action. Defendant argues that plaintiffs’
common-law fraud claim in Richter II is improper because the only claim that was
pending at the time of the voluntary dismissal in Richter I was count I for
shareholder remedies. Thus, reasons defendant, “Count I of Richter I is the only
claim that might conceivably be saved.”
¶ 48 The appellate court correctly rejected this argument. 2015 IL App (4th) 140613,
¶ 42. A refiled action pursuant to section 13-217 is not a restatement of the old
1
This version of section 13-217 is currently in effect because it preceded the amendments of
Public Act 89-7, § 15 (eff. Mar. 9, 1995), which this court found unconstitutional in its entirety in
Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997). See Hudson, 228 Ill. 2d at 469 n.1.
- 15 -
action, but an entirely new and separate action. Dubina, 178 Ill. 2d at 504. Further,
a cause of action may contain several theories of recovery (Wilson, 2012 IL
112898, ¶ 25 (collecting cases)) arising from a single group of operating facts.
Hayashi, 2014 IL 116023, ¶ 46. Here, plaintiffs’ claims in Richter II for
misrepresentation, fraud, and breach of fiduciary duty all grew out of the same
transaction alleged in Richter I.
¶ 49 D. Laches
¶ 50 Defendant lastly contends that the doctrine of laches bars Richter II. Section
2-619(a)(9) of the Code of Civil Procedure provides for dismissal where the claim
“is barred by other affirmative matter avoiding the legal effect of or defeating the
claim.” 735 ILCS 5/2-619(a)(9) (West 2012). One such affirmative matter is the
defense of laches. See Mo v. Hergan, 2012 IL App (1st) 113179, ¶ 34; Summers v.
Village of Durand, 267 Ill. App. 3d 767, 771 (1994).
¶ 51 “ ‘Laches is an equitable principle which bars recovery by a litigant whose
unreasonable delay in bringing an action for relief prejudices the rights of the other
party.’ ” First National Bank of Springfield v. Malpractice Research, Inc., 179 Ill.
2d 353, 364 (1997) (quoting People ex rel. Daley v. Strayhorn, 121 Ill. 2d 470, 482
(1988)). However, unlike a statute of limitations, “laches is not a mere matter of
time but principally a question of the inequity of permitting the claim to be
enforced,—an inequity founded upon some change in the condition or relation of
the property and the parties.” Holland v. Richards, 4 Ill. 2d 570, 578 (1955). In
other words, “it must appear that a plaintiff’s unreasonable delay in asserting his
rights has prejudiced and misled the defendant, or caused him to pursue a course
different from what he would have otherwise taken. [Citations.] If the defendant is
not injured by the delay, then plaintiff is not guilty of laches.” People ex rel. Casey
v. Health & Hospitals Governing Comm’n, 69 Ill. 2d 108, 115 (1977). The
applicability of laches to a given case lies within the discretion of the circuit court.
Finley v. Finley, 81 Ill. 2d 317, 330 (1980); Evans v. Woodsworth, 213 Ill. 404, 409
(1904).
¶ 52 Here, the circuit court granted defendant’s section 2-619 motion to dismiss
Richter II expressly on the grounds of res judicata and the statute of limitations.
The court did not rule on the issue of laches, and, consequently, the appellate court
declined to address this issue. 2015 IL App (4th) 140613, ¶ 43. We agree and do
- 16 -
likewise. On remand, defendant is free to assert a laches defense. The circuit court
is in the best position to make the relevant factual findings based on the totality of
the circumstances of this particular case. See, e.g., Hurlbert v. Charles, 238 Ill. 2d
248, 261 (2010); Morel v. Coronet Insurance Co., 117 Ill. 2d 18, 27-28 (1987).
¶ 53 III. CONCLUSION
¶ 54 For the foregoing reasons, the judgment of the appellate court is affirmed, and
the cause remanded to the circuit court of Macoupin County for further
proceedings.
¶ 55 Affirmed and remanded.
- 17 -
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64 F.3d 676
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Robert CONROY, Plaintiff-Appellant,v.REEBOK INTERNATIONAL, LTD., Defendant-Appellee.
No. 95-1421.
United States Court of Appeals, Federal Circuit.
Aug. 10, 1995.
1
D.Mass., 14 F.3d 1570.
2
DISMISSED.
ORDER
The parties having so agreed, it is
3
ORDERED that the proceeding is DISMISSED under Fed. R. App. P. 42 (b).
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77 So.2d 641 (1954)
STATE of Alabama
v.
ROBINSON LAND & LUMBER COMPANY OF ALABAMA, Inc.
1 Div. 572.
Supreme Court of Alabama.
November 4, 1954.
Rehearing Denied February 10, 1955.
*642 Si Garrett, Atty. Gen., and H. Grady Tiller, Asst. Atty. Gen., for appellant.
Smith, Hand, Arendall & Bedsole, Mobile, for appellee.
CLAYTON, Justice.
This appeal by the state from an adverse ruling on demurrer concerns a certain formula used by the State Department of Revenue for computing corporation income taxes due the state under certain conditions. The question for our determination is whether this formula is in accordance with or runs counter to Section 390 of Title 51, Code of Alabama, 1940, which reads as follows:
*643 "§ 390. Credit for taxes paid on income from sources without the state. (a) For the purpose of ascertaining the income tax due under the provisions of this chapter, by residents of Alabama whose gross income as defined herein is derived from sources both within and without the State of Alabama, there shall be allowed a credit against the amount of tax found to be due by such resident, on account of income derived from without the State of Alabama, the amount of income tax actually paid by such resident to any state or territory on account of business transacted or property held without the State of Alabama. (b) In case the amount of tax actually paid by a resident of Alabama to another state or territory is in excess of the amount that would be due on the same income computed on the income tax rate in Alabama, then only such amount as would be due in this state on such taxable income shall be allowed as a credit. (c) If the amount of income tax actually paid by a resident of this state to any other state or territory on account of business transacted or property held, is less than the amount of tax that would be due, as computed on Alabama income tax rates, then the income tax levied herein shall be computed on the entire taxable income from sources from both within and without the state as defined herein, and the tax shall be paid less the credit allowed in this section for tax paid on income derived from without the state. (d) Before a resident of Alabama may claim the credit allowed under this section he shall file with his tax return a certificate showing amount of gross and net income derived from sources without this state together with the amount of tax paid or to be paid on such income. The words `residents of Alabama' as used in this section shall include corporations organized and existing under the laws of the State of Alabama."
Appellee is an Alabama corporation with operations in Alabama and Mississippi. Its corporation income tax return filed with the State of Alabama for the year 1949 showed an aggregate gross income of $179,243.89, of which $26,780.50 was gross income from operations within the State of Mississippi. After legal and proper deductions, on its Mississippi operations, its net income in that state was $20,656.62. But its aggregate operating or business expenses for the year amounted to $161,889.72, leaving its net earnings or taxable income from all sources for the year to be $17,354.17. The correctness of the foregoing figures is not questioned on this appeal. Extending these calculations a step further and using round numbers, it is seen that although appellee's net income in Mississippi for the year was $20,000, its aggregate net income for the year in Alabama and Mississippi together was only $17,000, from which, by simple arithmetic, it is apparent that its Alabama operations standing alone showed a net loss of approximately $3,000.
The Mississippi income tax rate on corporations is on a sliding scale, beginning at 1% on the first $4,000 and reaching 5% on the higher brackets. On its net income of $20,656.62 in that state, in the year 1949, appellee actually paid to the State of Mississippi income tax in the amount of $672.83. Appellee, on its income tax return to the State of Alabama for the year 1949, computed the tax at 3% on its aggregate total net income from all sources ($17,354.17) to be $520.63. It, then, computed its net income earned in the State of Mississippi ($20,656.62) at the Alabama tax rate of 3% in accordance with its version of the meaning of subsection (b) of section 390, and obtained the result of $619.70 as a credit against its income tax liability to the State of Alabama for the year. From this appellee determined that no income tax was due the State of Alabama for that year, for the reason that its Alabama income tax computed on its total aggregate net income for the year from all sources was less than the product of its income derived from business transacted *644 in Mississippi multiplied by the Alabama tax rate.
The State Department of Revenue made an assessment against the taxpayer based upon its formula, or rule of thumb, as follows: It computed the taxpayer's income tax at the Alabama rate of 3% upon $17,354.17, the aggregate net income after lawful deductions and expenses, from all sources from within and without the state, and obtained a figure of $520.63. Up to this point its actions coincided with those of the taxpayer, but it then made a further computation whereby it converted taxpayer's gross income in Mississippi ($26,780.50) into a decimal fractional part of the taxpayer's aggregate gross income from all sources ($179,243.89), and obtained the fraction .14941. Multiplying this fraction by the $520.63, obtained above as tax on total net income from all sources, a figure of $77.79 was reached as a maximum allowable credit (on account of income tax paid to the State of Mississippi for the year) to be deducted from the taxpayer's Alabama income tax, based upon aggregate income from all sources. Upon the taxpayer's refusal to accede to this calculation, the State Department of Revenue made a final assessment against it of $442.84 plus interest, this being the remainder after subtracting $77.79 from $520.63. Taxpayer paid this under protest and filed its appeal by bill of complaint with copy of its tax return attached thereto in the Circuit Court of Mobile, in Equity, in accordance with Section 140, Title 51, Code of 1940. The State Department of Revenue, by demurrer, admitted the correctness of all the aforestated figures contained in appellee's tax return, but asserted that its own percentage formula and the assessment based thereon were a correct interpretation and application of Section 390 of Title 51 of the Code. The trial court ruled with the taxpayer and the state appeals.
This is a case of first impression in this jurisdiction.
In its brief filed in this cause, on appeal, the State Department of Revenue argues that in view of the fact that this particular section of our Income Tax Law, here involved, has not heretofore been before our appellate courts for review, the construction of that statute by the State Commissioner of Revenue should be accorded consideration in arriving at our decision in the instant case. And, in support of this proposition, he cites a number of authorities. Dixie Coaches, Inc. v. Ramsden, 238 Ala. 285, 190 So. 92; Birmingham Paper Co. v. Curry, 238 Ala. 138, 190 So. 86; State v. Tuscaloosa Building & Loan Ass'n, 230 Ala. 476, 161 So. 530, 99 A.L.R. 1019; Wetmore v. State, 55 Ala. 198; State v. Board of School Commissioners, 183 Ala. 554, 63 So. 76; Shepherd v. Sartain, 185 Ala. 439, 64 So. 57; State Board of Administration v. Jones, 212 Ala. 380, 102 So. 626; State v. H. M. Hobbie Grocery Co., 225 Ala. 151, 142 So. 46; State ex rel. Fowler v. Stone, 237 Ala. 78, 185 So. 404; Cole v. Gullatt, 241 Ala. 669, 4 So.2d 412; 42 Am.Jur., §§ 77-85, pp. 392-413; 42 Am.Jur., pp. 407, 408.
Appellee's position on the other hand, is that the statute is clear, no ambiguity exists therein; the legislative intent is plain and no occasion arises for any construction other than the usual meaning of the words in the clearly expressed language of the statute. State v. Praetorians, 226 Ala. 259, 146 So. 411; Holt v. Long, 234 Ala. 369, 174 So. 759; Bozeman v. State, 7 Ala.App. 151, 61 So. 604, certiorari denied Ex parte Bozeman, 183 Ala. 91, 63 So. 201; Ex parte Bozeman, 183 Ala. 91, 63 So. 201; Gibbs v. State, 29 Ala.App. 113, 192 So. 514, certiorari denied 238 Ala. 592, 192 So. 515; State v. Tuscaloosa Building & Loan Ass'n, 230 Ala. 476, 161 So. 530, 99 A.L.R. 1019, supra; May v. Head, 210 Ala. 112, 96 So. 869.
As the case is before us on demurrer, no testimony was taken, and no allegations appear in the pleadings in regard to the interpretation or construction given to this section of the statute by the State Commissioner of Revenue, this matter is not before us, as we do not take judicial notice of his decisions. But this aside, the law is clear that "When the language as used by the lawmakers is plain, it is the *645 duty of the courts to obey; no discretion is left; and courts should not stray into bypaths or search for reasons outside of the plain letter of the law upon which to rely for the purpose of giving a different meaning or interpretation, for "when the language is plain it should be considered to mean exactly what it says." State ex rel. Little v. Foster, 130 Ala. [154] 163 (30 So. 477)." Ex Parte Bozeman, supra [183 Ala. 91, 63 So. 203]; Dixie Coaches, Inc. v. Ramsden, supra; State v. Tuscaloosa Building & Loan Ass'n, supra; State Board of Administration v. Jones, supra.
Argument is made that in view of the fact that much of our Income Tax Law, including section 390, supra, in part, was taken from the Federal Income Tax Law, we should follow the construction placed on the Federal law by the United States courts. In the case of State v. Flenner, 236 Ala. 228, 181 So. 786, 787, this court, speaking through Knight, J., made the following comment:
"While the construction placed upon a similar provision of the Federal Income Statute, or by the Courts of New York, Massachusetts, Wisconsin and Georgia, upon similar provisions in their respective statutes, are not binding upon this Court, yet the decisions of those courts are justly entitled to weight. Particularly is this true with reference to the decisions of the Supreme Court of the United States when it is remembered that the Alabama Act was borrowed from the Federal statute, and after the Supreme Court of the United States had passed upon, and construed the same.
"The Legislature of Alabama has deliberately and substantially used in the Acts now before us practically the same language employed in the pertinent provisions by the Congress in adopting the Federal Income Tax law. It was no accidental happening. While this Court will not abdicate its jurisdiction in construing and determining the meaning of an act of its own state legislature, yet this Court recognizes the legislative presumption that obtains here, as well as elsewhere, that, in borrowing an Act of the Legislature of another state, which had received a settled construction in that state before enacted here, it was the purpose of the Legislature in so adopting the statute that the construction placed on the same by the highest court of the state of original enactment should be given the statute, unless there appears something in the act as enacted here to show a contrary purpose. We know this rule is not absolute, or controlling, but it is at least persuasive. Alabama Fuel & Iron Co. v. Denson, 208 Ala. 337, 94 So. 311." [Emphasis supplied.]
Likewise, the state cites the California case of Miller v. McColgan, 17 Cal.2d 432, 110 P.2d 419, 134 A.L.R. 1424, as the only case found reported from a court of last resort where the question of credit for income tax paid on income from without the state was involved. The annotations found under that case in A.L.R. are very full and have been helpful in the preparation of the present opinion. Accordingly, we set out here the corresponding section of the California statute for the purposes of differentiation later in this discussion:
Section 25, California Personal Income Tax Act 1935, Statutes 1935, p. 1117.
"Sec. 25. Credit for Taxes Paid Other States by Resident or Nonresident Taxpayers.
"(a) Whenever a resident taxpayer of this State has become liable to income tax to another State or country upon his net income, or any part thereof, for the taxable year, derived from sources without this State, and subject to taxation under this act, the amount of income tax payable by him under this act shall be credited with the amount of income tax so paid by him to such other State or country, but such credit shall not exceed such proportion of the tax payable under this act as the income subject to tax in such other State or country bears to the taxpayer's entire income upon which *646 the tax is imposed by this act. * *" [Emphasis supplied.]
Our first effective income tax law, that of 1933, imposed a tax on incomes beginning with the year 1933 and contained no section corresponding to the present section 390 of Title 51, Code of 1940. The case of State v. Weil, 232 Ala. 578, 584, 585, 168 So. 679, 685, held:
"* * * it seems reasonably clear that the legislative intent was to impose the tax on residents, natural persons, and corporations, within the state's jurisdiction in respect to their entire net income, from whatsoever source derived, * * *.
* * * * * *
"The interpretation which we have given the act rendered taxable incomes derived by the taxpayer, as a member of the partnership of Weil Brothers, from sales of cotton consummated during the year 1933, outside this state. So, also, from cotton purchased and sold outside of the state by said partnership resident of this state."
Although the decision in the Weil case, supra, was not handed down by this court until 1936, the proceedings began in the early part of 1935. That case probably was responsible in some measure for the incorporation of Section 345.16 in the General Revenue Act of 1935, Gen.Acts 1935, p. 410, appvd. July 10, 1935, now Section 390, Title 51, supra. The last sentence "The words `residents of Alabama' as used in this section shall include corporations organized and existing under the laws of the State of Alabama" was added by the Code Committee of 1940. Certain it is that before the passage of Section 390, supra, any Alabama taxpayer with income derived from business transacted in another state was required by our 1933 Income Tax Law to pay Alabama income tax on that income regardless of the fact that such taxpayer might have paid income tax on such identical income to the state in which such income was derived. State v. Weil, supra.
Unquestionably the legislative purpose in the adoption of the credit provision in our statute, as well as those in the Federal statute was to relieve the taxpayer of the burden of double taxation. Burnet v. Chicago Portrait Co., 1932, 285 U.S. 1, 52 S.Ct. 275, 76 L.Ed. 587, affirming Commissioner of Internal Revenue v. Chicago Portrait Co., 7 Cir., 1931, 50 F.2d 683, which affirms 1929, 16 B.T.A. 1129; Hubbard v. U. S., 1936, 17 F.Supp. 93, 84 Ct.Cl. 205, writ of certiorari denied in 1937, 300 U.S. 666, 57 S.Ct. 508, 81 L.Ed. 873, 874.
But, in order that payment by a resident taxpayer of taxes paid to another state or country on income derived from transactions within such other state or country might not relieve the taxpayer from payment of domestic taxes on his domestic income, limiting provisions have been added to all the statutes which have come to our attention. In California such limitation is as follows:
"* * * but such credit shall not exceed such proportion of the tax payable under this act as the income subject to tax in such other State or country bears to the taxpayer's entire income upon which the tax is imposed by this act."
Two limitations are contained in the Federal statute, viz.: The credit shall not exceed the same proportion of the tax against which such credit is taken as the taxpayer's net income from sources within such country bears to his entire net income for the same taxable year; and, the credit shall not exceed the same proportion of the tax against which such credit is taken as the taxpayer's net income from sources without the United States bears to his entire net income for the same taxable year.
While the credit provision contained in Section 390, Title 51, supra, is substantially the same as is found in the Federal and California income tax laws, the limitations thereon are greatly different, as will be seen readily from a reading of the quoted parts hereinabove.
*647 Section 390(a), Title 51, supra, standing alone, undoubtedly, grants to the taxpayer for the amount actually paid to another state full credit against his income tax payable to the State of Alabama. The wording "the amount of income tax actually paid by such resident to any state or territory on account of business transacted or property held without the State of Alabama" means paid under the laws of the other state or territory. What deductions for business expenses from the gross income flowing to taxpayer on account of business transacted in such other state, in order to calculate the net taxable income in that state, must necessarily be governed by the applicable statute of that other state. Subsection (b) of Section 390, supra, is the safeguard which prevents loss of income tax revenue by the State of Alabama on business transacted within Alabama by reason of credit under subdivision (a) of Section 390, supra, for payments actually paid to another state at a rate higher than our own on business transacted within such other state. For example, assume that an Alabama corporation has taxable income derived within Alabama of $10,000 and also taxable income of $10,000 on account of business transacted in another state in which the income tax rate is 6%; in the absence of subsection (b), supra, payment of $600 income tax to the other state would deprive Alabama of any income tax revenue on the $10,000 income of the corporation derived within the State of Alabama. This is the reason for subsection (b), Section 390, Title 51, Code of Alabama 1940. For emphasis, subsection (b), supra, is here quoted alone:
"(b) In case the amount of tax actually paid by a resident of Alabama to another state or territory is in excess of the amount that would be due on the same income computed on the income tax rate in Alabama, then only such amount as would be due in this state on such taxable income shall be allowed as a credit."
Reduced to words, the formula which the State Department of Revenue has used as an interpretation and application of subsection (b), Section 390, supra, is:
But such credit shall not exceed such proportion of the tax payable under this act as the gross income of the taxpayer derived in such other state or territory bears to his entire gross income derived from all sources both within and without Alabama.
The effect of the application of the State Department of Revenue's formula is to accomplish the very thing which Section 390, supra, was designed to avoid, namely, the imposition of two state income taxes upon one income. Section 390 of the income tax statute contains no such limitation. It is not within the power of the State Department of Revenue to add or take from the statute by administrative construction. 42 Am.Jur. p. 400, § 80. Only the legislative branch of our state government is vested by the Constitution with lawmaking power.
The words of this court, speaking through Simpson, J., in State v. Travelers Ins. Co., 256 Ala. 61, 68, 53 So.2d 745, 750, and quoted below, might well be applied to the instant situation:
"But the Department must stay within the confines of the constitutional and statutory mandates. International Paper Co. v. Curry, 243 Ala. 228, 9 So.2d 8; Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446. The basis of this tax act is therein clearly defined * * *. The use of an illusory formula by the Department, which has no tendency to show the amount of this basis, results in an unconstitutional delegationor more accurately, usurpationof legislative authority. This would be but allowing the Department to fix its own standards different from those of the statute, * * *. This is not constitutionally permissible. Phenix City v. Alabama Power Co., 239 Ala. 547, 195 So. 894; Panama Refining Co. v. Ryan, supra."
*648 As the Mississippi income tax rate is higher in the present instance than the Alabama rate, no incentive would appear for the taxpayer to charge against its Mississippi operation less than its lawful share of his overhead costs and other business expense, but as the case is before us only on the state's demurrer to the taxpayer's bill of complaint, no question is presented in that regard.
The decree of the circuit court overruling the state's demurrer to appellee's bill of complaint was proper and is affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and STAKELY, JJ., concur.
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Opinion filed August 3, 2017
In The
Eleventh Court of Appeals
___________
No. 11-17-00182-CR
___________
JOSHUA WALTER GOSSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court
Taylor County, Texas
Trial Court Cause No. 27272A
MEMORANDUM OPINION
Joshua Walter Gosson, Appellant, has filed an untimely pro se notice of appeal
from a conviction for the offense of possession of methamphetamine. We dismiss
the appeal.
The documents on file in this case indicate that Appellant’s sentence was
imposed on May 10, 2017, and that his notice of appeal was filed in the district
clerk’s office on June 29, 2017. When the appeal was filed in this court, we notified
Appellant by letter that the notice of appeal appeared to be untimely and that the
appeal may be dismissed for want of jurisdiction. We also noted that the trial court
had certified this was a plea-bargain case and that Appellant had waived his right to
appeal. We requested that Appellant respond to our letter and show grounds to
continue. Appellant has not filed a response.
Pursuant to TEX. R. APP. P. 26.2(a), a notice of appeal is due to be filed either
(1) within thirty days after the date that sentence is imposed in open court or (2) if
the defendant timely files a motion for new trial, within ninety days after the date
that sentence is imposed in open court. A notice of appeal must be in writing and
filed with the clerk of the trial court. TEX. R. APP. P. 25.2(c)(1). The documents on
file in this court reflect that Appellant did not file a motion for new trial and that
Appellant’s notice of appeal was filed with the clerk of the trial court fifty days after
sentence was imposed. The notice of appeal was, therefore, untimely.
Absent a timely filed notice of appeal or the granting of a timely motion for
extension of time, we do not have jurisdiction to entertain this appeal. Slaton v.
State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519,
522–23 (Tex. Crim. App. 1996); Rodarte v. State, 860 S.W.2d 108, 110 (Tex. Crim.
App. 1993). Neither a notice of appeal nor a motion for extension were filed within
the fifteen-day period permitted by TEX. R. APP. P. 26.3.
Moreover, the trial court’s certification reflects that this is a plea-bargain case
and that Appellant has no right of appeal. Thus, even if Appellant had timely
perfected an appeal, the appeal would have been prohibited by TEX. R. APP. P. 25.2,
which provides that an appellate court must dismiss an appeal without further action
when there is no certification showing that the defendant has the right of appeal.
2
TEX. R. APP. P. 25.2(d); Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App.
2006); see Dears v. State, 154 S.W.3d 610, 613–14 (Tex. Crim. App. 2005).
This appeal is dismissed for want of jurisdiction.
PER CURIAM
August 3, 2017
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
3
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801 F.2d 399
Grossv.C.I.R.
85-7706
United States Court of Appeals,Ninth Circuit.
9/22/86
1
U.S.T.C.
AFFIRMED
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724 F.Supp.2d 904 (2010)
Christopher SHIRLEY, Plaintiff,
v.
JED CAPITAL, LLC and John Harada, Defendants.
Case No. 09 C 7894.
United States District Court, N.D. Illinois, Eastern Division.
July 8, 2010.
*908 Robert David Loventhal, Robert D. Loventhal Law Office, Boston, MA, for Plaintiff.
Martin B. Carroll, Josh Goldberg, Fox, Hefter, Swibel, Levin & Carroll, LLP, Chicago, IL, for Defendants.
MEMORANDUM OPINION AND ORDER
HARRY D. LEINENWEBER, District Judge.
Before the Court is Defendants' Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), 9(b), and 17. For the following reasons, the Motion to Dismiss is granted in part and denied in part.
I. BACKGROUND
Christopher Shirley ("Shirley"), a member of JED Capital, LLC ("JED"), is suing JED and its manager, John Harada, on seven counts: (1) breach of contract, (2) fraud in the inducement, (3) breach of fiduciary duty under the Illinois Limited Liability Company Act, (4) for an accounting and damages, (5) violation of the Illinois Wage Payment and Collection Act, (6) violation of federal securities laws, and (7) violation of the Racketeer Influenced Corrupt Organizations Act ("RICO").
JED is an investment company that participates in, among other things, automated trading of futures, equities, and foreign exchange instruments. Before January 1, 2007, Plaintiff Christopher Shirley, while working for various investment companies, developed several methods and programs for automated securities trading, including a Liquidity Replenishment Program ("LRP"). In March 2007, Shirley began working full-time for JED. Shirley's efforts using LRP produced millions of dollars in income for JED.
In July 2007, John Harada ("Harada"), JED'S manager, persuaded Shirley to convert $200,000 owed to him by JED, plus up to $100,000 in future earnings, into equity in JED, making Shirley a 10% owner-member of the LLC. Shirley alleges that Harada promised to use the money to support LRP. Shirley alleges that Harada failed to tell him that JED could not pay its bills and had no revenues except those brought in by Shirley. Harada said that if Shirley did not agree, JED would fire him and continue to use LRP without him. Shirley reluctantly agreed to Harada's suggestion. Shirley became a member of JED, but Harada retained all decision-making authority for the LLC.
Shirley continued to work for JED, producing profits in the millions of dollars. In September 2008, Harada persuaded Shirley to invest an additional $250,000 into JED in order to expand the LRP trade to London, making Shirley a 20% *909 member. Shirley made the investment on the specific agreement that the money would be used solely to expand the company's trading capabilities on the London stock exchange. Shirley alleges that Harada failed to tell him that JED was in the process of repaying an investment whereby it would become insolvent, that JED could not pay its bills, that Harada had "sucked" money out of JED to finance other ventures, and that JED needed Shirley's money for its daily survival. After Shirley made the additional investment, Harada allegedly failed to expand the company into the London market. Shirley alleges that this failure cost him and JED $3,000 daily in lost profits.
Shirley also alleges that Harada failed to pay him a $10,000 monthly salary that Shirley was contractually bound to receive in addition to his share of the profits he generated. Harada also failed to live up to his promises to provide financial and personnel support for the LRP program. Shirley alleges that this failure was based on JED's and Harada's intention to "freeze" Shirley out of JED and concentrate JED's resources on other ventures, in violation of their fiduciary and contractual obligations to Shirley.
Shirley decided to leave JED. On August 5, 2009, Shirley and Harada agreed to shut down the LRP program, close JED, and disburse JED's capital to the remaining members. Shirley received his share of the profits, but not his unpaid salary. Despite Shirley and Harada's agreements to shut down LRP and JED, JED allegedly recommenced running trades on the LRP program after Shirley left. JED has not accounted to Shirley for his share of the profits Shirley believes he should have received as a 20% member of JED.
Shirley alleges numerous improprieties committed by Harada as manager of JED, including using JED assets to fund Harada's other business ventures and borrowing JED funds for personal and family purposes.
Only Counts 6 (securities violation) and 7 (RICO) of the Amended Complaint are based on federal law. Defendants JED and Harada argue that Counts 6 and 7 do not state a claim for which relief may be granted and that the Court therefore does not have subject matter jurisdiction. Shirley responds that the Court has diversity jurisdiction even if it does not have federal issue jurisdictiona point that JED disputes. JED argues that, even if the Court does have jurisdiction, Counts 1 through 4 must be dismissed under Rule 12(b)(6) or Rule 17.
II. LEGAL STANDARDS
A. Subject Matter Jurisdiction
A federal court must have federal-question jurisdiction under 28 U.S.C. § 1331 or diversity jurisdiction under 28 U.S.C. § 1332. Arbaugh v. Y & H Corp., 546 U.S. 500, 513, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). If it has neither, it must dismiss the case under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.
B. Rule 12(b)(6)
Under Rule 12(b)(6), a court must dismiss a plaintiff's claim if it does not include sufficient facts to state a claim to relief that is plausible on its face. Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir.2009). In considering a motion to dismiss, a court must accept a plaintiff's allegations as true and view them, along with any reasonable inferences drawn from them, in the light most favorable to the plaintiff. Id.
C. Rule 9(b)
Rule 9(b) provides, "In alleging fraud or mistake, a party must state with *910 particularity the circumstances constituting fraud or mistake." A cause of action may be dismissed for failing to plead fraud or mistake with particularity. See Hayduk v. Lanna, 775 F.2d 441, 443-45 (1st Cir.1985).
III. DISCUSSION
A. Subject Matter Jurisdiction
The Court addresses this threshold issue first. If Defendants are correct that Plaintiff fails to state a claim under federal securities laws or RICO, then there is no federal question jurisdiction. If this is so, the Court must consider whether it has diversity jurisdiction.
1. Federal Question Jurisdiction
a. Securities Violation (Count 6)
i. The Agreements as Investment Contracts
The crux of this debate is whether Plaintiff's investments in JED constitute an "investment contract." If not, federal securities laws do not apply to Plaintiff's investments. See 15 U.S.C. § 77b(a)(1). The Supreme Court has devised a test for defining investment contracts in SEC v. W.J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946). Agreements are investment contracts, and therefore "securities," if they reflect (1) an investment of money (2) in a common enterprise (3) with profits to come solely from the entrepreneurial or managerial efforts of others. Id. at 301, 66 S.Ct. 1100; Nelson v. Stahl, 173 F.Supp.2d 153, 164 (S.D.N.Y.2001). Only the third prong is contested in this case.
One of the principal purposes of the federal securities laws is to "protect investors by promoting full disclosure of information necessary to informed investment decisions." Bailey v. J.W.K. Props., Inc., 904 F.2d 918, 921 (4th Cir.1990). Because the securities statutes are remedial in nature, they should be read broadly. SEC v. Glenn W. Turner Enters., Inc., 474 F.2d 476, 482 (9th Cir.1973). The word "solely" should not be interpreted strictly, but rather realistically, and should turn on whether the actions of those other than the investor are the "undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise." Id.
Furthermore, the Howey test is to be tempered by the requirement that it is to be applied in light of the substance of the relationship rather than the form. See Int'l Brotherhood of Teamsters v. Daniel, 439 U.S. 551, 558, 99 S.Ct. 790, 58 L.Ed.2d 808 (1979). The Securities Exchange Act's definition of a "security" is flexible and is designed to adapt to the "countless and variable schemes devised by those who seek the use of the money of others on the promise of profits." Howey, 328 U.S. at 299, 66 S.Ct. 1100. Whether an LLC interest is a security depends on the particular facts of the investment arrangement and is a question that courts must determine on a case-by-case basis after taking into account the particular facts and circumstances of the investment arrangement. Cogniplex, Inc. v. Ross, 2001 WL 436210, *9 (N.D.Ill.2001).
Interest in an LLC may be a security where the members are so dependent on a manager that they cannot replace him or exercise ultimate control without him. Nelson, 173 F.Supp.2d at 165. Plaintiff argues that he had a securities interest in JED by pointing out the undisputed fact that JED was a "manager-managed," as opposed to a "member-managed" LLC, with Harada as the manager. Plaintiff's investment agreements ratified his original Employment Agreement, by which he received commissions for his work. Although Plaintiff ran the LRP, he had no control over JED's expenditures and had no recourse within the company *911 when Harada failed to provide the resources he had promised to the LRP. Since Harada was two-thirds owner of JED, membership meetings could not be called without his consent. As manager, Harada had the sole power to authorize distributions and had veto power over any change in manager. The Operating Agreement had no provision for removal of the manager for cause. Plaintiff had no control over JED's business and could not bind the company. Because interest in a manager-managed LLC is more likely to be a security interest where the members' ability to exercise management control is effectively non-existent, see KFC Ventures, L.L.C. v. Metairie Med. Equip. Leasing Corp., 2000 WL 726877, *2 (E.D.La.2000), these facts weigh in favor of Plaintiff's agreement with JED being an investment contract.
Defendants contend, however, that Plaintiff's argument fails because he was investing money in JED for the sole purpose of dedicating those funds entirely to the LRP, the part of JED that Plaintiff controlled, not so that Plaintiff could profit from the efforts of others. Furthermore, Defendants argue, as Plaintiff claims to have been producing almost all the profits of an otherwise-insolvent company, he can hardly claim to be a passive investor who invested his money while expecting to earn profits from the efforts of others.
This set of facts creates a close call as to whether Plaintiff's investment in JED was a security interest. As this Court has noted, LLC organizational structures "defy formulaic application of the Howey test." Cogniplex, 2001 WL 436210 at *10. Plaintiff had control over the workaday operations of the LRP and was responsible for the lion's share of the income of JED. For this work, he received commissions and was promised a salary.
But the history of the relationship indicates that Shirley started out at JED as an employee who received commissions25% of the first $150,000 of net profit and loss generated by Plaintiff's trading strategies in a year and 50% of the net profit and loss over $150,000. Even when he became a member-investor, Shirley was still an "employee," and his pay scheme as employee remained exactly the same. Therefore, it is misleading to focus on the commissions Plaintiff received, as the facts show that he was owed these as an employee.
Naturally, when Plaintiff invested money in JED, he had a right to expect something in addition to what he was getting as an employee, namely, an equity interest in JED as a whole. That meant he had an interest (eventually, a 20% interest) in those LRP profits that did not flow to him as commissions and an interest in any other profits JED might be making. Although he was generating most of the profits, he had no control over them once they went into JED's coffers.
The "legal right to a voice in partnership matters" is a key issue in determining activity or passivity. See Nelson, 173 F.Supp.2d at 165 (finding investment in LLC not a securities interest where investors had direct authority over management of LLC). Obviously, Plaintiff had no voice in controlling the LLC as a whole. By investing in JED, Plaintiff expected to acquire a 20% interest in JED's total profits (including those profits based on his own efforts and those profits based on the efforts of other membersif there had been any such profits), but the disbursement of any profits was entirely under Harada's control. Plaintiff had no control over whether the funds would be frittered away or used to increase the value of JED. Plaintiff may have had control over his job earnings, but he had essentially no control over his "investment."
Thus, Plaintiff was a passive investor as far as any additional profits from JED *912 were concerned. Anything he got above and beyond his commissions and salary, which he would have gotten anyway as an employee, was dependent on how Harada managed JED's assets. The Court therefore finds that, under the unusual circumstances of this case, Plaintiff's agreement to invest in JED qualifies as an "investment contract" for purposes of federal securities laws.
ii. Sufficiency of the Fraud Allegation under Rules 12(b)(6) and 9(b)
In order for Plaintiff's claim for securities fraud to be legally sufficient, it must meet the requirements of Rule 12(b)(6) and Rule 9(b). Plaintiff alleges that Defendants violated section 10(b) of the Securities and Exchange Act of 1934 (as amended, 15 U.S.C. § 78j(b)) and Rule 10b-5 (17 C.F.R. § 240.10b-5). In alleging such violation, a plaintiff must allege with particularity (1) that defendant made an untrue statement of material fact or omitted a material fact that rendered the statements made misleading ("any manipulative or deceptive device or contrivance," 15 U.S.C. § 78j(b)), (2) in connection with a securities transaction, (3) with intent to mislead, (4) causing damages. Schlifke v. Seafirst Corp., 866 F.2d 935, 943 (7th Cir. 1989); FED. R. CIV. P. 9(b).
Plaintiff has alleged, among other things, that in September 2008, Harada induced him to invest $250,000 in JED for its London expansion but omitted to tell Plaintiff the material facts that JED was in the process of repaying an investment whereby it would become insolvent (Plaintiff names a specific investor and amount in his Amended Complaint), that JED could not pay its bills, that Harada had used JED money to finance his other business ventures (the Amended Complaint specifically names the business ventures), and that JED needed Plaintiff's money for its daily survival. These are certainly material facts to someone contemplating an investment in a business. Plaintiff alleges that had he known the above facts, he would not have invested the $250,000. Plaintiff has alleged lost profits of $3,000 a day to JED and to himself based on Harada's mishandling of JED's funds. The Court finds the pleading of securities fraud legally sufficient under Rules 9(b) and 12(b)(6). Cf. Stahl, 173 F.Supp.2d at 168 (finding securities fraud sufficiently pled where defendant was alleged to have misrepresented company's financial condition). The motion to dismiss Count 6 is therefore denied.
Because Plaintiff has stated a valid claim under U.S. securities laws, the Court finds that it has subject matter jurisdiction. See 28 U.S.C. § 1331.
Defendants move to strike Plaintiff's allegations in Count 6 that Defendants made false statements about the use of his investment proceeds and threatened to dismiss him in order to induce him to invest. Defendants argue that these allegations do not constitute fraudulent actions. The motion is denied. See FED. R. CIV. P. 12(f); 15 U.S.C. § 78j(b) (prohibiting use of manipulative or deceptive devices in securities transactions); Smith v. AVSC Int'l Inc., 148 F.Supp.2d 302, 317 (S.D.N.Y. 2001) ("[M]otions to strike are generally disfavored and will not be granted unless the matter asserted clearly has no bearing on the issue in dispute.").
b. RICO violation (Count 7)
Defendants argue that Plaintiff fails to state a claim for RICO violation, citing Rule 12(b)(6) and Rule 9(b).
i. Pattern of "racketeering activity"
It is unlawful for a person associated with an enterprise engaged in interstate commerce to conduct or participate, directly or indirectly, in the conduct of the enterprise's affairs through "a pattern of racketeering activity." 18 U.S.C. *913 § 1962(c). "Racketeering activities" are defined in 18 U.S.C. § 1961(1), which provides an exhaustive list. Defendants argue that the misdeeds Plaintiff attributes to them are not racketeering activities under section 1961. For example, Plaintiff cites securities fraud as a racketeering activity, but such activity is expressly excluded as a predicate act for civil RICO purposes unless the person has been criminally convicted of the alleged securities fraud. 18 U.S.C. § 1964(c).
Plaintiff also cites common law fraud, extortion, theft, tax fraud, and embezzlement as racketeering activities, but, without something more, only extortion is defined as a racketeering activity in section 1961. The "something more" that Plaintiff alleges involves mail fraud under 18 U.S.C. § 1341 and wire fraud under 18 U.S.C. § 1343, both of which are racketeering activities under section 1961. The mail fraud statute applies only where the defendant uses the U.S. mails as "part of the execution" of a fraudulent scheme. Schmuck v. United States, 489 U.S. 705, 710, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). The wire fraud statute is identical to the mail fraud statute, except that it applies to communications transmitted by wire, i.e., telephone, radio, or television, and does not apply to intrastate communications. Gintowt v. TL Ventures, 226 F.Supp.2d 672, 677 (E.D.Pa.2002). To support a mail or wire fraud conviction, a transmission "must further the scheme to defraud or be incident to an essential part of that scheme." Id.
In Paragraphs 35 through 39 of his Amended Complaint, Plaintiff alleges that Harada paid the bulk of the expenses of Need To Know Network ("NTKN"), one of Harada's other businesses, from JED's account and never reimbursed JED; paid NTKN salaries from JED funds, which were never reimbursed; made improperly documented loans to NTKN in excess of $500,000, which have not been repaid; paid $150,000 to a company owned by a JED member to cover up a bad trade; sold NTKN to a third party without reimbursing JED for sums it had loaned to NTKN; loaned personal funds to JED, then converted the loans to equity, and the equity to debt; and paid himself $61,000 interest on the purported loans. Plaintiff alleges that these incidents occurred between July 13, 2007 and August 1, 2009, except the sale of NTKN, which occurred around December 1, 2009. Plaintiff alleges that Harada and JED often made such transactions through electronic funds transfers. Plaintiff also alleges that Harada used electronic transmissions and/or mail to issue false and misleading tax forms in 2007 and 2008. Harada also allegedly employed electronic transfers to use JED funds for personal and family uses and to support his other businesses.
Plaintiff certainly alleges a pattern of continuing and related questionable business practices that appear to be a regular way of doing business. See H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239-43, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). But because he is alleging fraudulent practices done by mail or wire, Plaintiff must meet the heightened particularity requirements of Rule 9(b) for pleading fraud. See Slaney v. Int'l Amateur Athletic Fed'n, 244 F.3d 580, 599 (7th Cir.2001). To satisfy this standard, a RICO plaintiff must allege the identity of the person who made the representation, the time, place and content of the misrepresentation, and the method by which the misrepresentation was communicated. Vicom, Inc. v. Harbridge Merchant Serv., Inc., 20 F.3d 771, 777 (7th Cir.1994). Moreover, because a RICO plaintiff must allege at least two predicate acts of fraud, he must satisfy the requirements of Rule *914 9(b) twice. Emery v. Am. Gen. Fin., Inc., 134 F.3d 1321, 1323 (7th Cir.1998).
Plaintiff's Amended Complaint omits many needed details. Take, for example, the allegation that Harada paid the bulk of NTKN's expenses from JED's account and never reimbursed JED. What misrepresentation did Harada make? For all we know from Plaintiff's Amended Complaint, Harada might have transferred funds to NTKN with the complete knowledge and approval of JED's members. Then where would be the fraud? Plaintiff alleges that Harada paid $150,000 to a company owned by a JED member to cover up a bad trade. Which company? Owned by which JED member? What exactly was the misrepresentation, and to whom? How was an electronic transfer used to further the fraud? As for the tax forms, what did they say that was false or misleading? Plaintiff alleges that Harada used JED assets for personal and family expenses, but gives no specific examples. How were these fraudulent, and how were electronic transfers used to further the fraud?
Plaintiff alleges in a general way that numerous investments and transfers were made through the use of electronic funds transfers. This is not specific enough. Plaintiff must state which transfers he believes were made electronically or by mail and how they furthered the fraud. Furthermore, for the wire fraud statute to apply, the transfers must be made across state lines. Plaintiff makes no allegation to that effect.
For these reasons, the Court finds that Plaintiff has failed to plead a pattern of racketeering activity with the specificity required by Rule 9(b).
ii. Distinguishing the RICO Person from the RICO Enterprise
The RICO statute targets a "person" who is associated with an "enterprise." 18 U.S.C. § 1962(c) ("It shall be unlawful for any person employed by or associated with any enterprise . . ."). The Seventh Circuit has held that the "person" and the "enterprise" must be distinct entities. Haroco Inc. v. Am. Nat'l Bank & Trust Co. of Chicago, 747 F.2d 384, 400-02 (7th Cir.1984).
Plaintiff's Amended Complaint seeks to hold both JED and Harada liable for RICO violations. It also states that for RICO purposes, "JED and Harada constitute the operative racketeering enterprise." It would appear from Plaintiff's narrative that he means to target Harada as the "person" who used the "enterprise" of JED to engage in racketeering activities, but, as written, the Amended Complaint treats JED and Harada as both persons and enterprises. This is an additional reason for dismissing this count.
Count 7 is dismissed without prejudice for Plaintiff to amend his complaint.
2. Diversity jurisdiction
Because the Court has jurisdiction based on an issue of federal securities laws, the Court need not consider whether it has diversity jurisdiction.
B. Breach of Contract (Count 1) and Fraud in the Inducement (Count 2)
Because Plaintiff's state law claims arise out of a "common nucleus of operative facts" with the federal claim in the case, the Court has jurisdiction over the state law claims as well. 28 U.S.C. § 1367(a); United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).
1. Breach of Contract
Plaintiff alleges that Defendants breached their contract when they failed to honor their promises to provide resource support for the LRP, thereby preventing the LRP from reaching its full potential; this cost Plaintiff millions of dollars. But *915 there is no mention in the contracts between Plaintiff and Defendants of financial or resource support for the LRP. Apparently, Harada's promises on that score were made orally and do not appear in any written contract.
Under Illinois law, a written contract is presumed to include all material terms agreed upon by the parties, and prior negotiations or representations are merged into that agreement; extrinsic evidence, parol or otherwise, of earlier understandings and negotiations is generally inadmissible to alter, vary, or contradict the written contract. K's Merch. Mart, Inc. v. Northgate Ltd. P'ship, 359 Ill.App.3d 1137, 296 Ill.Dec. 612, 835 N.E.2d 965, 971 (Ill. App.Ct.2005). There being no legally cognizable contractual requirement for Defendants to provide support for the LRP, Plaintiff has no claim against them on that point. Count 1 is therefore dismissed.
2. Fraud in the Inducement
Plaintiff alleges that Defendants fraudulently induced him to make his two large investments in JED by falsely representing that the funds would be used to support, expand, and enhance the LRP. Defendants argue that only misrepresentations of present or existing fact, not promises of future performance, are actionable under Illinois law. See Bower v. Jones, 978 F.2d 1004, 1011 (7th Cir.1992).
While this is the general rule in Illinois, there is a well-recognized exception "where the false promise or representation of future conduct is alleged to be the scheme employed to accomplish the fraud." Steinberg v. Chicago Med. Sch., 69 Ill.2d 320, 13 Ill.Dec. 699, 371 N.E.2d 634, 641 (1977). "Where a party makes a promise of performance, not intending to keep the promise but intending for another party to rely on it, and where that other party relies upon it to his detriment, the false promise will be considered an intended scheme to defraud the victim and will be actionable." Concord Indus., Inc. v. Harvel Indus. Corp., 122 Ill.App.3d 845, 78 Ill. Dec. 898, 462 N.E.2d 1252, 1255 (Ill.App. Ct.1984).
Plaintiff's allegations that Defendants persuaded him to invest in JED by making promises that they had no intention of keeping while concealing JED's true financial condition, and that Plaintiff relied on those promises in agreeing to invest in JED, do indeed state a cause of action under Illinois law. The motion to dismiss Count 2 is therefore denied.
C. Rule 17 Motions
Defendants move to dismiss Counts 3 and 4 on the basis that the LLC is the real party in interest and that Plaintiff therefore has no standing to bring these claims. Federal Rule of Civil Procedure 17(a)(1) provides that "[an] action must be prosecuted in the name of the real party in interest." A court must dismiss a cause where the plaintiff is not the real party in interest, after allowing a reasonable opportunity for the real party in interest to be joined or substituted under Rule 17(a)(3). See McWhirter v. Otis Elevator Co., 40 F.Supp. 11 (W.D.S.C.1941) (holding that Rule 17 is mandatory and defendant has right to be sued by real party in interest).
1. Illinois LLC Act (Count 3)
Plaintiff brings a claim against Harada for alleged violations of his fiduciary duties toward JED under the Illinois LLC Act, 805 Ill. Comp. Stat. 180/15-3. Generally, a plaintiff should seek redress for such injuries through a derivative suit on behalf of the company, not through a direct suit on his own behalf. See, Elmhurst Consulting, LLC v. Gibson, 219 F.R.D. 125, 127 (N.D.Ill.2003).
An LLC member may, however, bring an action in the right of an LLC after the *916 members or managers with authority to bring such an action have refused to do so, or when demanding that they bring such an action would have been futile. 805 Ill. Comp. Stat. 180/40-1. A plaintiff in a derivative action must plead with particularity either the demand made to initiate the action or the reasons why demand would have been futile. 805 Ill. Comp. Stat. 180/40-10.
Plaintiff does not claim to have made a demand on the relevant director of the LLC (in this case, Harada); rather Plaintiff claims that such a demand would be futile. Under Illinois law, it is within the trial court's discretion to determine whether the demand requirement is excused. Powell v. Gant, 199 Ill.App.3d 259, 145 Ill.Dec. 339, 556 N.E.2d 1241, 1245 (Ill.App.Ct.1990). The doctrine of futility excuses demand where a majority of the directors are the alleged wrongdoers. Id. Demand futility is established where a plaintiff sufficiently alleges facts that raise a reasonable doubt as to (1) the directors' disinterestedness or independence or (2) whether the challenged transaction was the product of a valid business judgment. In re Abbott Labs. Derivative S'holder Litig., 325 F.3d 795, 807 (7th Cir.2003).
Plaintiff unquestionably alleges that Harada, the sole manager of JED, is the wrongdoer. Plaintiff alleges that Harada withheld JED's true financial condition when persuading Plaintiff to invest in JED; threatened to fire Plaintiff if he didn't invest; made false promises about how Plaintiff's investment money would be used; used JED funds to finance his other businesses; re-opened JED after agreeing to close it; and failed to distribute any profits to Plaintiff after re-opening JED. Taken together, these allegations raise reasonable doubts about Harada's disinterestedness, i.e., his undivided loyalty to JED's member-investors. The Court finds that Plaintiff has sufficiently pled that a demand would be futile. The motion to dismiss Count 3 is therefore denied.
2. Accounting and Damages (Count 4)
Generally, a court will exercise jurisdiction for purpose of ordering an accounting when discovery is necessary, when complicated or mutual accounts are involved, or when a fiduciary relationship exists between parties. Metro-Goldwyn-Mayer, Inc. v. Antioch Theatre Co., Inc., 52 Ill.App.3d 122, 9 Ill.Dec. 813, 367 N.E.2d 247, 255 (Ill.App.Ct.1977). Illinois courts have held that an order for an accounting is within the court's discretion. Newton v. Aitken, 260 Ill.App.3d 717, 198 Ill.Dec. 751, 633 N.E.2d 213, 218 (Ill.App. Ct.1994). Plaintiff sufficiently pleads a cause of action for accounting by alleging that Harada, who had a fiduciary relationship with JED and its members, re-opened JED and failed to distribute the profits to its members.
Less recent Illinois case law suggests that an action for equitable accounting will not lie until a plaintiff has made a demand for an accounting or established that a demand would be futile. See, Am. Sanitary Rag Co. v. Dry, 346 Ill.App. 459, 105 N.E.2d 133, 135 (Ill.App.Ct.1952); Patterson v. N. Trust Co., 170 Ill.App. 501 (Ill. App.Ct.1912). Even if this rule were to apply, the Court finds that any demand would be futile, as explained above. The motion to dismiss Count 4 is therefore denied.
IV. CONCLUSION
For the reasons stated herein, the Court rules as follows:
1. Defendants' Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1) is denied. The Court has subject matter jurisdiction under 28 U.S.C. § 1331.
*917 2. Defendants' Motions to Dismiss Counts 1 and 7 are granted. Counts 1 and 7 are dismissed without prejudice. Plaintiff has leave to amend his Complaint within four weeks of this order.
3. Defendants' Motions to Dismiss Counts 2, 3, 4, and 6 are denied.
IT IS SO ORDERED.
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351 U.S. 79 (1956)
AMERICAN AIRLINES, INC.
v.
NORTH AMERICAN AIRLINES, INC., ET AL.
No. 410.
Supreme Court of United States.
Argued March 6-7, 1956.
Decided April 23, 1956.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.
Howard C. Westwood argued the cause for petitioner. With him on the brief was J. Randolph Wilson.
Walter J. Derenberg argued the cause for North American Airlines, Inc., respondent. With him on the brief was Hardy K. Maclay.
*80 Solicitor General Sobeloff, Assistant Attorney General Barnes, Daniel M. Friedman, Franklin M. Stone, O. D. Ozment and Gerald F. Krassa filed a brief for the Civil Aeronautics Board, respondent.
MR. JUSTICE MINTON delivered the opinion of the Court.
Twentieth Century Airlines, Inc., was issued a letter of registration as a large irregular air carrier by the Civil Aeronautics Board in 1947. For some reason, beginning in 1951 it conducted its business under the name of North American Airlines. On March 3, 1952, it amended its articles of incorporation so as legally to change its name to North American Airlines, Inc. By letter dated March 11, 1952, it requested the C. A. B. to reissue its letter of registration in the new corporate name. The Board took no action on that request, but rather, in August 1952, adopted an Economic Regulation requiring every irregular carrier after November 15, 1952, to do business in the name in which its letter of registration was issued. 14 CFR § 291.28. The Board explained that under the Regulation it would allow continued use of a different name to which good will had become attached, except where use of such name constitutes a violation of § 411 of the Civil Aeronautics Act, 52 Stat. 1003, as amended, 66 Stat. 628, 49 U. S. C. § 491, which prohibits unfair or deceptive commercial practices and unfair methods of competition. 17 Fed. Reg. 7809.
On October 6, 1952, respondent applied for permission to continue use of its name, "North American Airlines." Petitioner, American Airlines, on October 17, 1952, filed a memorandum with the Board requesting denial of North American's application for the reasons, among others, that use of the name "North American" infringed upon its long-established trade name, "American," and constituted an unfair method of competition in violation of § 411 of *81 the Act. The Board, as authorized by § 411, on its own motion instituted an investigation and hearing into whether there was a violation of § 411 by North American. It consolidated with that proceeding an investigation and hearing into the matter of North American's application for change of name in its letter of registration. American was granted leave to intervene in the consolidated proceeding.
After extensive hearings, the Board found that respondent's use of the name "North American" in the air transportation industry, in which it competed with American, had caused "substantial public confusion," which was "likely to continue" and which constituted "an unfair or deceptive practice and an unfair method of competition within the meaning of Section 411." Docket Nos. 5774 and 5928 (Nov. 4. 1953), 14-15 (mimeo). It found that the public interest required elimination of the use of the name, and accordingly it denied the application of North American and ordered it to "cease and desist from engaging in air transportation under the name `North American Airlines, Inc.,' `North American Airlines,' `North American,' or any combination of the word `American.' " Id., at 15-16. On petition for review by North American, the Court of Appeals for the District of Columbia set aside the Board's order. 97 U. S. App. D. C. 85, 228 F. 2d 432. American, having been admitted as a party below by intervention, sought, and we granted, certiorari. 350 U. S. 894.
As we understand its opinion, the Court of Appeals set aside the order because the public interest in this proceeding was inadequate to justify exercise of the Board's jurisdiction under § 411. Although the court was critical of the finding of "substantial public confusion," it did not, on its disposition of the case, expressly disturb that or any other of the Board's findings. For the purposes of review here, we will accept the findings, and there is no cause *82 for this Court to review the evidence. Universal Camera Corp. v. Labor Board, 340 U. S. 474, has no application in the present posture of the case before us. The questions then presented are whether confusion between the parties' trade names justified a proceeding by the Board to protect the public and whether the kind of confusion found by the Board could support a conclusion of a violation of the statute by respondent.
This is a case of first impression under § 411. That section provides that
"The Board may, upon its own initiative or upon complaint . . . if it considers that such action by it would be in the interest of the public, investigate and determine whether any air carrier . . . has been or is engaged in unfair or deceptive practices or unfair methods of competition in air transportation or the sale thereof."
If the Board finds that the carrier is so engaged, "it shall order such air carrier . . . to cease and desist from such practices or methods of competition." Section 411 was modeled closely after § 5 of the Federal Trade Commission Act,[*] which similarly prohibits "unfair methods of competition in commerce, and unfair or deceptive acts or practices" and provides for issuance of a complaint "if it shall appear to the Commission that a proceeding by it . . . would be to the interest of the public." 38 Stat. 719, as amended, 15 U. S. C. § 45. We may profitably look to judicial interpretation of § 5 as an aid in the resolution of the questions raised here under § 411.
*83 It should be noted at the outset that a finding as to the "interest of the public" under both § 411 and § 5 is not a prerequisite to the issuance of a cease and desist order as such. Rather, consideration of the public interest is made a condition upon the assumption of jurisdiction by the agency to investigate trade practices and methods of competition and determine whether or not they are unfair. Thus, this Court has held that, under § 5, the Federal Trade Commission may not employ its powers to vindicate private rights and that whether or not the facts, on complaint or as developed, show the public interest to be sufficiently "specific and substantial" to authorize a proceeding by the Commission is a question subject to judicial review. Federal Trade Comm'n v. Klesner, 280 U. S. 19. See also Federal Trade Comm'n v. Keppel & Bro., Inc., 291 U. S. 304; Federal Trade Comm'n v. Royal Milling Co., 288 U. S. 212.
In the Klesner case, two District of Columbia retailers, with a long history of acrimonious personal and business relations, were both operating stores called the "Shade Shop." This Court held that the public interest merely in resolving their private unfair competition dispute would not justify the Commission in issuing a complaint. The courts of law are open to competitors for the settlement of their private legal rights, one against the other. The Board, under a mandate from Congress, is charged with the protection of the public interest as affected by practices of carriers in the field of air transportation. In exercising our function of review of the Board's jurisdiction to protect the public interest by a proceeding which may be generated from facts also giving rise to a private dispute, we must take account of the significant differences between § 5 and § 411. Section 5 is concerned with purely private business enterprises which cover the full spectrum of economic activity. On the *84 other hand, the air carriers here conduct their business under a regulated system of limited competition. The business so conducted is of especial and essential concern to the public, as is true of all common carriers and public utilities. Finally, Congress has committed the regulation of this industry to an administrative agency of special competence that deals only with the problems of the industry.
The practices of the competitors here clashed in a field where Congress was specifically concerned to protect the public interest. Demonstrated confusion of the public as to the origin of major air transportation services may be of obvious national public concern. The criteria which the Board employed to determine whether the confusion here created a problem of concern to the public are contained in the following quotation from its report:
". . . the record is convincing that the public interest requires this action in order to prevent further public confusion between respondent and intervenor due to similarity of names. The maintenance of high standards in dealing with the public is expected of common carriers, and the public has a right to be free of the inconveniences which flow from confusion between carriers engaging in the transportation of persons by air. The speed of air travel may well be diminished when passengers check in for flights with the wrong carrier, or attempt to retrieve baggage from the wrong carrier, or attempt to purchase transportation from the wrong carrier, or direct their inquiries to the wrong carrier. Friends, relatives or business associates planning to meet passengers or seeking information on delayed arrivals are subject to annoyance or worse when confused as to the carrier involved. The proper handling of complaints from members of the public is impeded *85 by confusion as to the carrier to whom the complaint should be presented. The transportation itself may differ from what the confused purchaser had anticipated (e. g., in terms of equipment), even though the time and place of arrival may be about the same. It is obvious that public confusion between air carriers operating between the same cities is adverse to the public interest . . . ." Docket Nos. 5774 and 5928 (Nov. 4, 1953), 12-13 (mimeo).
Under § 411 it is the Board that speaks in the public interest. We do not sit to determine independently what is the public interest in matters of this kind, committed as they are to the judgment of the Board. We decide only whether, in determining what is the public interest, the Board has stayed within its jurisdiction and applied criteria appropriate to that determination. The Board has done that in the instant case. Considerations of the high standards required of common carriers in dealing with the public, convenience of the traveling public, speed and efficiency in air transport, and protection of reliance on a carrier's equipment are all criteria which the Board in its judgment may properly employ to determine whether the public interest justifies use of its powers under § 411.
It is argued that respondent's use of the name "North American" cannot amount to an unfair or deceptive practice or an unfair method of competition authorizing the Board's order within § 411. "Unfair or deceptive practices or unfair methods of competition," as used in § 411, are broader concepts than the common-law idea of unfair competition. See Federal Trade Comm'n v. Keppel & Bro., Inc., supra; Federal Trade Comm'n v. Raladam Co., 283 U. S. 643, 648. The section is concerned not with punishment of wrongdoing or protection of injured competitors, but rather with protection of the public interest. See Federal Trade Comm'n v. Klesner, supra, at 27-28. *86 The courts have held, in construing § 5 of the Trade Commission Act, that the use of a trade name that is similar to that of a competitor, which has the capacity to confuse or deceive the public, may be prohibited by the Commission. Federal Trade Comm'n v. Algoma Lumber Co., 291 U. S. 67; Juvenile Shoe Co. v. Federal Trade Comm'n, 289 F. 57. And see Pep BoysManny, Moe & Jack, Inc. v. Federal Trade Comm'n, 122 F. 2d 158, where the confusing name was not that of any competitor. The Board found that respondent knowingly adopted a trade name that might well cause confusion. But it made no findings that the use of the name was intentionally deceptive or fraudulent or that the competitor, American Airlines, was injured thereby. Such findings are not required of the Trade Commission under § 5, and there is no reason to require them of the Civil Aeronautics Board under § 411. Federal Trade Comm'n v. Algoma Lumber Co., supra, at 81; Eugene Dietzgen Co. v. Federal Trade Comm'n, 142 F. 2d 321, 327; D. D. D. Corp. v. Federal Trade Comm'n, 125 F. 2d 679, 682; Gimbel Bros., Inc. v. Federal Trade Comm'n, 116 F. 2d 578, 579; Federal Trade Comm'n v. Balme, 23 F. 2d 615, 621. See also S. Rep. No. 221, 75th Cong., 1st Sess. 2.
The Board had jurisdiction to inquire into the methods of competition presented here, and its evidentiary findings concerned confusion of the type which can support a finding of violation of § 411. The judgment of the Court of Appeals must therefore be reversed. However, since we do not understand the court to have decided whether the Board's findings were supported by substantial evidence on the record as a whole, the case is remanded to the Court of Appeals for further proceedings in the light of this opinion.
Reversed and remanded.
*87 MR. JUSTICE DOUGLAS, with whom MR. JUSTICE REED concurs, dissenting.
The Court decides that a finding of "substantial public confusion" resulting from respondent carrier's use of the name "North American" constitutes a violation of § 411 of the Civil Aeronautics Act, 52 Stat. 1003, as amended, 66 Stat. 628, 49 U. S. C. § 491.
If the Court held that the public confusion must be substantial enough to impairor imminently threaten to impairthe efficiency of air service, I would agree. That construction would give practical content to the phrase "substantial public confusion." The Court, however, does not require a Board finding that the confusion has diminished the efficiency of air service. There is, indeed, no such finding by the Board in this case. There is only a naked finding of "substantial public confusion" and that such confusion is "likely to continue." There is no finding that any flight was delayed because a passenger was confused; there is no finding that any passenger missed his plane because of checking in at the wrong ticket counter; there is no finding that a confused passenger boarded the wrong plane.
The Board conceded that its order requiring respondent to cease and desist from using the name "North American" was "a serious sanction which necessarily involves disturbance and loss to the carrier. . . . The maintenance of high standards in dealing with the public is expected of common carriers, and the public has a right to be free of the inconveniences which flow from confusion between carriers engaging in the transportation of persons by air. The speed of air travel may well be diminished when passengers check in for flights with the wrong carrier, or attempt to retrieve baggage from the wrong carrier, or attempt to purchase transportation from the wrong carrier, *88 or direct their inquiries to the wrong carrier." Docket Nos. 5774 and 5928 (Nov. 4, 1953), 12-13 (mimeo). (Italics added.)
I would not permit the Board to find a violation of § 411 so easily. We should require a finding that the confusion has actually caused some impairment of air service or that at least there is an imminent threat of such impairment. Certainly the type of confusion found here "may well" diminish the speed of air travelif it grows to such major proportions that flights are delayed and passengers begin missing flights or boarding the wrong planes. But it is mere conjecture that will ever happen as a result of respondent's use of the name "North American." The type and extent of public confusion found by the Board here would probably also be found if the Board conducted a similar inquiry into passenger confusion between Pan-American and American Airlines. It would also be surprising if the Board could not find similar confusion between Eastern and Northeast Airlines, Western and Northwest Airlines, or, if the Board had jurisdiction in the railroad industry, among Northern Pacific, Union Pacific, Western Pacific and Southern Pacific. As the dissenting member of the Board said:
"Since American Airlines, Inc., carries approximately 5 1/2 million passengers each year over its system, I am not impressed with the fact that witnesses in this case (principally those employed by American Airlines itself) have testified that some confusion has existed between the services offered by American, on the one hand, and North American on the other. On the contrary, I would be greatly surprised, (in view of the several million phone calls and other communications which American Airlines receives every year over and above those received from passengers which it actually carries) if there were not some demonstrable public confusion between American *89 Airlines and the respondent in this case." Id., at 1-2 (dissenting opinion).
The Court relies on the cases arising under § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U. S. C. § 45. Federal Trade Comm'n v. Algoma Lumber Co., 291 U. S. 67; Juvenile Shoe Co. v. Federal Trade Comm'n, 289 F. 57; Pep Boys v. Federal Trade Comm'n, 122 F. 2d 158. Those cases are quite different. In each the Commission made more than a bald finding of "substantial public confusion." It found, in the Algoma Lumber case, that a substantial number of purchasers had been misled into buying something other than what they thought they were buying. 291 U. S., at 72. In the Juvenile Shoe case, the competitor took a name so similar ("Juvenile Shoe Corporation" and "Juvenile Shoe Company, Inc.") that confusion in the public mind was "inevitable." 289 F., at 58. And the Commission made a finding that the use of the word "Juvenile" caused confusion and led purchasers to believe that the goods of one company were the goods of the other company. Id., at 59. In the Pep Boys case, the court approved the following test: ". . . whether the natural and probable result of the use by petitioner of the name . . . makes the average purchaser unwittingly, under ordinary conditions purchase that which he did not intend to buy." 122 F. 2d, at 161.
There are no similar findings in the instant case. There is no finding here that a passenger bought a North American ticket and flew North American under the mistaken belief that he was flying American. There is no finding that any passenger missed a plane because of the confusion. If passengers mistakenly bought North American service, believing it to be American, a finding of unfair or deceptive practices or unfair methods of competition under § 411 would be justified. That is a type of public *90 confusion quite different from the confusion found in this casereporting to the wrong ticket counter or attempting to retrieve baggage from the wrong carrier. By analogy to the § 5 cases, we have here a situation where a few prospective purchasers walked into the wrong store, but never made any purchases there.
I would affirm the judgment of the Court of Appeals.
NOTES
[*] See Hearings before a Subcommittee of the Senate Committee on Interstate Commerce on S. 3659, 75th Cong., 3d Sess. 5; 83 Cong. Rec. 6726; Hearings before a Subcommittee of the Senate Committee on Interstate Commerce on S. 2 and S. 1760, 75th Cong., 1st Sess., Pt. 1, 74.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4021
JACQUEL MASELLI KITCHENS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-99-107)
Submitted: August 18, 2000
Decided: September 8, 2000
Before MICHAEL and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Kenneth B. Folstein, Greenbelt, Maryland; Thomas A. Pavlinic,
Annapolis, Maryland, for Appellant. Lynne A. Battaglia, United
States Attorney, Deborah A. Johnston, Assistant United States Attor-
ney, Greenbelt, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Jacquel Maselli Kitchens pled guilty pursuant to a plea agreement
to one count of possession with intent to distribute cocaine in viola-
tion of 21 U.S.C.A. § 841 (West 1999), and one count of possession
of a firearm after conviction of a felony in violation of 18 U.S.C.
§ 922(g)(1) (1994). On appeal, Kitchens claims that the district erred
by considering hearsay from undisclosed confidential informants in
determining that Kitchens was not eligible for the"safety valve" pro-
visions of 18 U.S.C.A. § 3553(f) (West Supp. 2000). Because Kitch-
ens waived his right to appeal any sentence except an upward or
downward departure from the sentencing guidelines, we dismiss the
appeal.1
Kitchens entered into a plea agreement in which he agreed to waive
any right to appeal "whatever sentence is imposed, including any
issues that relate to the establishment of the guideline range, except
reserving the right to appeal any upward or downward departure from
the guideline range as determined by the court at the time of sentenc-
ing." At the Rule 11 plea colloquy,2 the district court determined that
Kitchens was a high school graduate and not under the influence of
any medications, alcohol or drugs. Kitchens was informed that the
mandatory minimum penalty for the drug offense was ten years. The
district court expressly addressed the waiver provision. The court
_________________________________________________________________
1 We have considered the effect of Apprendi v. New Jersey, 530 U.S.
___, No. 98-478, 2000 WL 807189 (June 26, 2000), and find that,
because Kitchens received a sentence of imprisonment and term of
supervised release that did not exceed the statutory maximums set out in
21 U.S.C.A. § 841(b)(1)(C) (West 1999), no plain error occurred. See
United States v. Aguayo-Delgado, ___ F.3d ___, 2000 WL 988128, *6
(8th Cir. July 18, 2000).
2 Federal Rule of Criminal Procedure 11.
2
noted that normally defendants have the right to appeal decisions
made by the judge at sentencing. The court stated that:
In this case both you [Kitchens] and the Government have
given up your right to appeal my guideline decisions, unless
I decide to depart, that is to sentence you above or below the
guideline range.
If I should do that and either side thinks I have made a
mistake, you will have the right to appeal, to complain about
that mistake and get it corrected. Other than that, though,
you and the Government have given up your rights to appeal
my guideline decisions.
Kitchens stated that he understood. The court further stated that
Kitchens waived his right to challenge his conviction in a 28 U.S.C.A.
§ 2255 (West Supp. 2000) motion except for ineffective assistance of
counsel or prosecutorial misconduct. The court also stated that:
You [Kitchens] will always have the right to complain if
you think I have imposed an illegal sentence, that is one
that's higher than those statutory maximums we talked
about at the beginning of the procedure.
Kitchens indicated that he understood. The district court informed
Kitchens that he faced a minimum term of ten years' imprisonment
and at least five years' supervised release.
The district court denied Kitchens' motion requesting application
of the safety valve and sentenced Kitchens to the minimum statutory
term of ten years' imprisonment and five years' supervised release.
A waiver of a criminal defendant's right to appeal contained in a
valid plea agreement "is enforceable against the defendant so long as
it is the result of a knowing and intelligent decision to forgo the right
to appeal." United States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994)
(internal quotation and citations omitted). In the instant appeal, Kitch-
ens' plea agreement contained a provision expressly waiving the right
to appeal any sentence and any issues involving the sentencing guide-
3
lines except for an upward or downward departure from the sentenc-
ing guidelines range. The district court expressly addressed the waiver
provisions during Kitchens' Rule 11 colloquy. Kitchens stated that he
understood the provision and agreed to it. There is nothing in the
record to suggest that the plea or the plea agreement was unknowing
or involuntary. Accordingly, we find that the plea waiver provision is
enforceable. Because Kitchens was sentenced within the sentence
authorized by statute and the court did not impose an upward or
downward departure from the sentencing guidelines, we find that
Kitchens waived his right to appeal his sentence.3,4 Accordingly, we
dismiss Kitchens' appeal. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid in the decisional pro-
cess.
DISMISSED
_________________________________________________________________
3 The statutory minimum sentence was ten years' imprisonment which
became the sentencing guidelines range of imprisonment because the
maximum sentence under the sentencing guidelines was less than the
statutory maximum. See Ch. 5, Part A of the U.S. Sentencing Guidelines
Manual; see also USSG § 5G1.1(b) (1998).
4 Despite a waiver of appeal rights, a defendant may retain the right to
appeal a sentence imposed in an unconstitutional manner. See Attar, 38
F.3d at 731. Kitchens did not have a constitutional right to confront con-
fidential informants at a sentencing hearing. See United States v. Young,
981 F.2d 180, 187-88 (5th Cir. 1992).
4
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|
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-4012
___________
Lanna J. Meyers, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the Western
Hartford Life and Accident * District of Arkansas.
Insurance Company, *
*
Appellee. *
___________
Submitted: June 14, 2007
Filed: July 6, 2007
___________
Before LOKEN, Chief Judge, and ARNOLD and COLLOTON, Circuit Judges.
___________
ARNOLD, Circuit Judge.
Lanna Meyers appeals from the order of the district court1 denying her
disability claim under ERISA against Hartford Life and Accident Insurance Company.
See 29 U.S.C. §§ 1001-1461. The district court, after a trial on a stipulated record,
concluded that the applicable insurance policy gave Hartford the discretion to
determine a claimant's eligibility for benefits (a conclusion not challenged here), and
1
The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas.
held that Hartford had not abused its discretion in rejecting Ms. Meyers's claim. We
affirm.
Ms. Meyers was employed by Wal-Mart Stores, Inc., for a number of years in
a position that the parties agree is properly classified as sedentary. She quit in 2004
and soon thereafter claimed that she was totally disabled within the meaning of her
benefits plan, which, as relevant here, requires her to show that she was unable to do
the job that she was doing when she quit.
Ms. Meyers has suffered from numerous ailments over the years. Her attending
physician, Dr. James Baker, diagnosed her as suffering primarily from Churg-Strauss
syndrome, interstitial lung disease, and peripheral neuropathy, with secondary
diagnoses (among others) of ocular migraines and lumbar degenerative disc disease.
He noted her secondary symptoms as chronic back pain, chronic diarrhea, bladder and
bowel incontinence, drop foot, and paresthesia. It was his opinion that Ms. Meyers
was unable to stand for more than 10 minutes, sit more than 15 minutes (due to pain
and paresthesia), carry more than 20 pounds (due to pain and weakness), or walk
without a cane and then no more than 15 minutes. When Hartford asked Dr. Baker
why he had put severe sitting limitations on Ms. Meyers but had put no driving
limitations on her, he explained that while driving she would simply have to stop and
rest at appropriate intervals. When Hartford asked Dr. Baker whether Ms. Meyers
could engage in a sedentary occupation, he said that she could not, stating that "patient
has other issues with urine and bowel incontinence problems." In a clinic note,
Dr. Baker wrote that "Ms. Meyers has become progressively more disabled due to her
back pain, intractable diarrhea, as well as her intractable infections which seem to be
recurrent."
Ms. Meyers was also seen by Dr. Steven Moon, a neurologist, who performed
an MRI that revealed a multilevel degenerative disc disease. He opined that from a
strictly objective neurological viewpoint Ms. Meyers could sit for two hours at a time
-2-
and was able to perform sedentary work. Dr. Regan Gallaher, a neurosurgeon,
reviewed the MRI and said that it did not provide a good explanation for Ms. Meyers's
symptoms.
Because of the conflict between the opinions of Dr. Baker and Dr. Moon with
respect to whether Ms. Meyers could perform sedentary work, Hartford engaged the
services of an independent physician, Dr. Todd Lyon, to assist in the determination
of whether Ms. Meyers was disabled. Dr. Lyon reviewed Ms. Meyers's medical
records and spoke with Dr. Baker on the telephone. According to Dr. Lyon, Dr. Baker
told him that from an objective medical viewpoint there was no evidence that
Ms. Meyers was not capable of working at her former job and that "she physically
retained the capacity for full time sedentary to light demand work." He did say,
however, that he "did not know if Ms. Meyers could tolerate working based solely
upon her continual back pain complaints." He did not mention any other condition
that would render Ms. Meyers disabled.
Dr. Lyon produced an extensive report that concluded that Ms. Meyers's main
subjective complaint was her chronic back pain. (Her Churg-Strauss syndrome, he
said, was "not producing symptomology sufficient enough to impair non-physically
demanding work.") He noted that she had complained of back pain for upwards of
two years before she quit work and that there was no objective medical evidence to
confirm her symptoms. He observed, moreover, that it was "highly unlikely that the
degenerative disc disease fully explains Ms. Meyers's low back complaints." He also
opined that "she would not have the ability for unrestricted standing and walking, nor
would she have the ability for repetitive stooping, bending or heavy lifting." He
nevertheless concluded that "Lanna Meyers retains the capacity for full-time sedentary
to light demand work." Dr. Lyon sent a copy of his report to Dr. Baker, inviting him
to make additions or corrections if he thought them necessary and noting that if he did
not respond, "I will assume that you essentially agree with my understanding of our
conversation." There is no response from Dr. Baker in the record. A few days later,
-3-
Hartford denied Ms. Meyers's claim on the ground that she was capable of performing
her former job. Ms. Meyers then indicated that she wanted to appeal that decision.
In connection with the appeal, Hartford engaged the services of yet another
independent physician, Dr. Jerome Siegel; he examined Ms. Meyers's medical records
and spoke with Dr. Baker several times and at length by telephone. Dr. Siegel
observed that Ms. Meyers had been treated with increasing doses of narcotics,
including a Duragesic patch, Neurontin, and Zanaflex, but nevertheless believed that
she was "physically capable of performing sedentary to light physical demand
activities," a conclusion in which Dr. Baker concurred. Hartford thereupon denied the
appeal.
Ms. Meyers maintained in the district court and on appeal that the combined
effect of her multiple medical difficulties rendered her totally disabled. But there is
little evidence in the record that Ms. Meyers suffers from any potentially disabling
condition aside from the pain that she experiences. There is indeed a good deal of
evidence that she has or has had a number of painful conditions, including low back
pain, myalgia, and arthralgia; but there is no evidence that the medicine that she takes
is not effective in relieving the pain. Drs. Lyon and Siegel, moreover, both noted that
Ms. Meyers had complained about pain for quite some time before she quit and had
nevertheless been able to work, an assessment with which Dr. Baker agreed. At least
four physicians, moreover, concluded that there is no objective evidence supporting
Ms. Meyers's subjective complaints of back pain. We observe, in addition, that there
is no personal statement in the record from Ms. Meyers about the extent of her pain
or when, how often, and how long she experiences it. Though her brief asserts that
"on any given typical day" she "wakes up to a life riddled with constant pain and
discomfort," there is no record evidence that this is true. Indeed, as we have already
said, her own attending physician, Dr. Baker, asserted only that he "did not know if
Ms. Meyers would tolerate working and this was based solely upon her continued low
back pain."
-4-
We review de novo the district court's decision that Hartford did not abuse its
discretion in denying Ms. Meyers's claim. Maune v. International Bhd. of Elec.
Workers, 83 F.3d 959, 962 (8th Cir. 1996). In the present circumstances we would be
hard-pressed to conclude that Hartford abused its discretion. An abuse of discretion
occurs when a decision may properly be called extremely unreasonable,
extraordinarily imprudent, or arbitrary and capricious. Shell v. Amalgamated Cotton
Garment, 43 F.3d 364, 366 (8th Cir. 1994). Here there was considerable medical
evidence to support Hartford's action, especially when one considers the highly
equivocal nature of Dr. Baker's opinion about whether Ms. Meyers's pain would
prevent her from performing the duties of her previous job and his evident conclusion
in his conversation with Dr. Lyon that pain was her only potentially disabling
condition.
We therefore affirm the judgment of the district court.
______________________________
-5-
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12-3316-cv
Arrocha v. City University of New York
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 TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st
3 day of July, two thousand thirteen.
4
5 PRESENT:
6 DEBRA ANN LIVINGSTON,
7 GERARD E. LYNCH,
8 RAYMOND J. LOHIER, JR.,
9 Circuit Judges.
10 _____________________________________
11
12 JOSE LUIS ARROCHA,
13
14 Plaintiff-Appellant,
15
16 v. 12-3316-cv
17
18 CITY UNIVERSITY OF NEW YORK, et al.,
19
20
21 Defendants-Appellees.
22 _____________________________________
23
24 FOR PLAINTIFF-APPELLANT: Jose Luis Arrocha, pro se, Brooklyn, NY.
25
26 FOR DEFENDANTS-APPELLEES: Matthew W. Grieco, Assistant Solicitor General of
27 Counsel, Eric T. Schneiderman, Attorney General
28 of the State of New York, Barbara D. Underwood,
29 Solicitor General, Michael S. Belohlavek, Senior
30 Counsel, Albany, NY.
31
1 Appeal from a judgment of the United States District Court for the Eastern District of New
2 York (Vitaliano, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the judgment of the district court is AFFIRMED.
5 Plaintiff-Appellant Jose Luis Arrocha, proceeding pro se, appeals from the district court’s
6 judgment granting the defendants’ motion to dismiss his civil rights and employment discrimination
7 action pursuant to Federal Rule of Civil Procedure 12(b)(6). We assume the parties’ familiarity with
8 the underlying facts, the procedural history of the case, and the issues on appeal.
9 We review a district court’s Rule 12(b)(6) dismissal of a complaint de novo. See Famous
10 Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). The complaint must plead
11 “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
12 U.S. 544, 570 (2007). Although all allegations contained in the complaint are assumed to be true,
13 this tenet is “inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A
14 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
15 the reasonable inference that the defendant is liable for the misconduct alleged.” Id. We remain
16 obligated, however, to construe pro se complaints liberally. See Harris v. Mills, 572 F.3d 66, 71-72
17 (2d Cir. 2009). Thus, while pro se complaints must contain sufficient factual allegations to meet the
18 plausibility standard, id., we should look for such allegations by reading pro se complaints with
19 “special solicitude” and interpreting them to raise the “strongest [claims] that they suggest.”
20 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (per curiam) (emphasis
21 omitted).
22
2
1 Upon review, we conclude that the district court properly granted the defendants’ motion to
2 dismiss on the ground that the claims were implausible. We need not reach Arrocha’s argument that
3 his 2009 Title VII claims that the district court dismissed as time-barred were properly brought
4 because the district court should have treated his EEOC intake form as an EEOC charge (an
5 argument that, in any event, was not presented to the district court). Arrocha’s 2009 Title VII claims
6 rely on the same legal predicates and factual allegations as his 2009 § 1983 claims. Because we
7 conclude that the district court correctly dismissed the latter claims for failing to state a claim, his
8 Title VII claims were also properly dismissed, even assuming they were timely when filed.
9 For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
3
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Filed 12/9/15 L.G. v. M.M. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
L.G., D067027
Respondent,
v. (Super. Ct. No. D551515)
M.M.,
Appellant.
APPEAL from an order of the Superior Court of San Diego County, David B.
Oberholtzer, Judge. Reversed and remanded for further proceedings.
Law Offices of Martin N. Buchanan, Martin N. Buchanan; Law Office of Neale B.
Gold and Neale Bachmann Gold for Appellant.
Yale & Baumgarten and David W. Baumgarten for Respondent.
M.M. (Mother) appeals a trial court order granting the petition of L.G. (Father)
requiring her to return to Mexico with their two children pursuant to the Hague
Convention on the Civil Aspects of International Child Abduction, October 25, 1980,
T.I.A.S. No. 11670 (the Hague Convention), as implemented by the International Child
Abduction Remedies Act (ICARA) (22 U.S.C.A. § 9001 et seq.).1 Mother contends the
trial court erred by finding there was a grave risk of harm to the children if they were
returned to Mexico in the custody of Father, but then granting Father's petition for a
return order subject to unauthorized and unenforceable conditions (e.g., requiring her to
return to Mexico with the children). She argues the court should have denied Father's
petition based on its finding of a grave risk of harm to the children. We conclude the trial
court erred by making its return to Mexico order subject to certain unauthorized and/or
unenforceable conditions and remand the matter for further proceedings as discussed
below.
FACTUAL AND PROCEDURAL BACKGROUND
In 2001, Father and Mother were married. They are both Mexican citizens. Until
October 2013, they both resided in Tijuana, Mexico, while working at their family
hardware store in Chula Vista, California.
Father and Mother had two daughters, M., born August 2002, and Me., born May
2004, both born in the United States. Their daughters have dual citizenship in Mexico
and the United States. They resided and attended school in Tijuana.
Prior to and during April 2013, Father physically and verbally abused Mother. In
July 2013, Father and Mother filed a voluntary divorce petition in Mexico that apparently
was not thereafter finalized.
1 ICARA was originally found at former title 42 United States Code section 11601
et seq.
2
On or about October 12, 2013, Mother, without Father's knowledge or consent,
moved with their children from their home in Mexico to the United States, where they
apparently have since been staying at domestic violence shelters in San Diego County.
Mother thereafter refused to inform Father of the location of, or allow him to visit with,
their children. In April 2014, Father filed a petition for divorce in the Tijuana family
court.
On October 10, 2014, Father filed the instant Hague Convention petition seeking
an order requiring the return of the children to Mexico so that custody and visitation
rights could be adjudicated in the pending divorce action in Mexico. During a four-day
trial, the trial court heard the testimony of nine witnesses, including Father, Mother, and
the children's therapists. Mother testified regarding past incidents of physical and verbal
abuse committed by Father against her, some of which were committed in the presence of
one or both of their children. The court also spoke with both children in chambers.
On the record, the trial court stated its findings of fact and orders. The court found
Father had committed substantial domestic violence against Mother. It found Father's
denials of that domestic violence were not believable and concluded he "plainly lied to
the Court about important things." Based on the evidence, the court concluded there
would be a grave risk of emotional harm to the children were they returned to Mexico in
Father's custody, but there would be no grave risk of harm were they otherwise returned
to Mexico. To protect the children, it ordered they remain in Mother's custody, ordered
her to seek a restraining order against Father from the Mexican court within 10 days, and
ordered that Mother would, on her return to Mexico, have exclusive use of the family
3
home. It further ordered that, on the issuance of a protective order from the Mexican
court, Mother was to return to Tijuana with the children. The court stated: "Let me be
absolutely clear about that. The children are going back to Mexico with the [M]other
[¶] . . . [¶] [I]f Mother refuses to cross the border, I'll make further orders."
On November 13, 2014, the trial court issued its written order granting Father's
petition (Order). The Order states in part:
"1. The children's country of habitual residence is Mexico.
[¶] . . . [¶]
"4. Mother's removal of the children from Mexico to the United
States was wrongful under the Hague Convention, Article 2, and was
an attempt by Mother to impose custody by fait accompli through
crossing an international border.
"5. Consequently, this Court is bound by Hague Convention Article
12 and [former] 42 U.S.C. § 11601(a)(4) to order the return of the
children to Mexico forthwith, unless there is a cognizable defense.
"6. Due to a history of domestic violence, the court finds by clear
and convincing evidence there would be a grave risk of emotional
harm to the children if they were returned immediately to the
Father's custody. [Citation.]
"7. Nevertheless, the Court finds no grave risk of emotional harm to
the children if they are returned to Mexico.
The court then set forth its orders for the return of the children to Mexico, stating:
"8. Therefore, the court orders the return of the children to Mexico,
the country of habitual residence, and the jurisdiction of the Tijuana,
Baja, California, Family Court, which has a pending case involving
custody of the children.
"9. Pursuant to [former] 42 U.S.C. § 11604(a), the court orders
Mother to accompany the children in their return to Mexico. This is
a temporary order, pending a custody order from Tijuana, Baja
California, Family Court.
4
"10. To further protect the children from a grave risk of emotional
harm, the court further orders Mother to request a restraining order
or other protective order for herself and the children from the
Tijuana, Baja California, Family Court on or before November 16,
2014, to allow the children's safe return.
"11. Until such time as the Mother obtains a restraining order or
other protective order from the Tijuana, Baja California, Family
Court, and/or until such time as this order is superseded or cancelled
by a Tijuana, Baja California Family Court order, [Father] shall
never be intentionally or knowingly within 100 meters of [Mother]
or the children, while in the U.S. or Mexico, except for purposes of
attending court hearings or other events at which the attendance of
one or both parents is required.
"12. Unless the Tijuana, Baja California Family Court orders
otherwise, on or before November 16, 2014, Father shall vacate the
[family] premises [in Tijuana] to allow the Mother and children to
occupy the residence.
"13. Upon receiving the protective order the minor children shall
immediately return to Tijuana, Mexico and to the family home . . . in
the Mother's custody pending orders from the Tijuana, Baja
California, Family Court or the parties agree to a different
arrangement."
The court reserved jurisdiction in the event the Tijuana family court denied Mother's
request for a protective order, subject to superseding or different orders by that court.
The trial court denied Mother's request for a stay of the Order pending an appeal. Mother
timely filed a notice of appeal challenging the Order. On December 18, 2014, we granted
Mother's petition for writ of supersedeas and request for stay, and stayed the Order
pending further order of this court.
5
DISCUSSION
I
The Hague Convention Generally
"The [Hague] Convention . . . was adopted in an effort 'to protect children
internationally from the harmful effects of their wrongful removal or retention and to
establish procedures to ensure their prompt return to the State of their habitual residence,
as well as to secure protection for rights of access.' [Citations.] To deter parents from
crossing international boundaries to secure a more favorable forum for the adjudication of
custody rights, the [Hague] Convention provides for the prompt return of a child who is
'wrongfully removed to or retained in' any country that has signed on to the [Hague]
Convention. [Citations.] It thus provides a means by which to restore the status quo
when one parent unilaterally removes the child from the child's country of habitual
residence and/or retains the child in a new jurisdiction. [Citation.] [¶] The only function
of a proceeding under the [Hague] Convention is to decide whether a child should be
returned to the country of the complaining parent; it does not govern the merits of
parental custody disputes, but leaves those issues to be determined by appropriate
proceedings in the child's country of habitual residence." (In re Marriage of Forrest &
Eaddy (2006) 144 Cal.App.4th 1202, 1210 (Forrest).)
A petitioner under the Hague Convention "bears the burden of proving the child's
wrongful removal or retention by a preponderance of the evidence." (Forrest, supra, 144
Cal.App.4th at p. 1211.) "If the petitioner succeeds in showing a wrongful removal, the
[Hague Convention] requires repatriation of the abducted child to its country of habitual
6
residence in all but a few exceptional circumstances. [Citations.] Exceptions to the
Hague Convention must be narrowly interpreted 'lest they swallow the rule of return.' "
(Maurizio R. v. L.C. (2011) 201 Cal.App.4th 616, 633 (Maurizio R.).)
The primary exception at issue in this appeal is the "grave risk" exception, which
provides that return of a child to his or her country of habitual residence need not be
ordered if "there is a grave risk that his or her return would expose the child to physical
or psychological harm or otherwise place the child in an intolerable situation." (Hague
Convention, art. 13, par. b; 22 U.S.C.A. § 9003(e)(2)(A).) The grave risk exception is
narrow and must be proved by clear and convincing evidence. (22 U.S.C.A.
§ 9003(e)(2)(A); Maurizio R., at p. 633; In re Marriage of Witherspoon (2007) 155
Cal.App.4th 963, 974 (Witherspoon).)
Another exception to return may apply when a child of sufficient age and degree
of maturity objects to return. (Hague Convention, art. 13; Witherspoon, supra, 155
Cal.App.4th at p. 975.) The Hague Convention provides: "The judicial or administrative
authority may also refuse to order the return of the child if it finds that the child objects to
being returned and has attained an age and degree of maturity at which it is appropriate to
take account of [his or her] views." (Hague Convention, art. 13; Witherspoon, at p. 975;
Escobar v. Flores (2010) 183 Cal.App.4th 737, 746 (Escobar).) Elisa Perez-Vera, the
official reporter for the Hague Convention, explained in her report that the Hague
Convention provides that a child's views on his or her return may be conclusive if the
child has attained an age and degree of maturity sufficient for his or her views to be taken
into account by the court. (Escobar, at pp. 746-747 & fn. 4; Witherspoon, at pp. 972, fn.
7
7, & 975-976; De Silva v. Pitts (10th Cir. 2007) 481 F.3d 1279, 1286; Blondin v. Dubois
(2d Cir. 2001) 238 F.3d 153, 166 ["[A] court may refuse repatriation solely on the basis
of a considered objection to returning by a sufficiently mature child."].) The Hague
Convention does not set forth a minimum age at which a child is old enough and mature
enough to trigger that provision. (Blondin, at p. 166.)
On appeal from an order granting or denying a Hague Convention petition, "we
review the trial court's determination of the historical facts for substantial evidence but
conduct a de novo review of the questions of law." (Forrest, supra, 144 Cal.App.4th at
p. 1213.) We review independently a trial court's interpretation of the Hague Convention
and its application of the Hague Convention to the facts in a particular case. (Maurizio
R., supra, 201 Cal.App.4th at pp. 633-634.)
II
Unauthorized and Unenforceable Conditions of Return Order
Mother contends the trial court erred as a matter of law by making the Order
requiring the return of the children to Mexico subject to certain conditions that are
unauthorized and/or unenforceable. She does not dispute the trial court's findings that the
children's habitual residence was in Mexico and that she wrongfully removed them from
Mexico to the United States. More importantly, she does not dispute the court's finding
that there would be no grave risk of emotional harm to the children were they returned to
Mexico, unless they are returned immediately to Father's custody (in which case there
8
would be a grave risk of emotional harm).2 Rather, Mother only challenges certain
conditions of the Order and requests that we reverse the order and remand the matter to
the trial court.
A
Mother asserts the trial court erred as a matter of law by requiring her to return to
Mexico with the children. In the Order, the court ordered "Mother to accompany the
children in their return to Mexico." In so doing, as in another case involving a similar
return order, the trial court "admirably attempted to balance the broad purposes of the
[Hague] Convention with the safety of the children by fashioning undertakings that
attempted to protect the children from their father during the pendency of custody
proceedings [in Mexico]." (Simcox v. Simcox (6th Cir. 2007) 511 F.3d 594, 610
(Simcox).) However, the Hague Convention requires the return of only children, and not
their parents, to the country of their habitual residence. (Maurizio R., supra, 201
2 Although Father's respondent's brief disputes the trial court's finding that there
would be a grave risk of emotional harm to the children were they returned immediately
to his custody, he has not filed a notice of cross-appeal and therefore cannot contest the
trial court's factual finding on that issue. (California State Employees' Assn. v. State
Personnel Bd. (1986) 178 Cal.App.3d 372, 382, fn. 7 ["[I]t is the general rule that a
respondent who has not appealed from the judgment may not urge error on appeal."].)
Accordingly, we need not address, and do not decide, whether there is substantial
evidence in the record on appeal to support the trial court's findings regarding the absence
or presence of a grave risk of harm to the children were they to be returned to Mexico in
the custody of Father or another person (e.g., Mother or court-appointed guardian). (Cf.
Forrest, supra, 144 Cal.App.4th at p. 1213 [substantial evidence standard applies in
reviewing trial court's factual findings].) In any event, were we to address that issue, it is
likely we would conclude there is substantial evidence in the record to support the trial
court's finding there would be a grave risk of emotional harm to the children were they
returned to Mexico immediately in Father's custody.
9
Cal.App.4th at p. 633; Forrest, supra, 144 Cal.App.4th at p. 1210.) A trial court has no
authority under the Hague Convention or ICARA to order a parent to return to the
children's country of habitual residence, whether with or without the children. (Maurizio
R., at p. 641 ["Mother cannot be compelled to return to Italy."]; Simcox, at p. 598
[reversing return order, finding particularly problematic the "command that Mrs. Simcox
herself return to Mexico"].) By ordering Mother to return to Mexico with her children,
the trial court erred. It lacked the authority under the Hague Convention and ICARA (or
otherwise) to require her to return to Mexico. Father does not cite any authority showing,
or otherwise persuade us, the trial court had that authority.
Furthermore, contrary to Father's assertion and the trial court's apparent belief, the
court did not have the authority under the Hague Convention or ICARA to order Mother
to return to Mexico with the children as a provisional remedy. (22 U.S.C.A. § 9004(a).)
A court exercising jurisdiction under the Hague Convention and ICARA "may take . . .
measures . . . to protect the well-being of the child . . . before the final disposition of the
[Hague Convention] petition." (22 U.S.C.A. § 9004(a), italics added.) Accordingly,
those provisional measures may be taken only during the pendency of a Hague
Convention petition and not as part of a final order deciding the merits of that petition.
Because the trial court's order that Mother return to Mexico with the children is part of
the Order that finally disposes of Father's petition, it is not a provisional measure under
ICARA.
Nevertheless, we note the trial court's objective of protecting the children from the
grave risk of emotional harm by Father on their return to Mexico could have been carried
10
out in a differently constructed return order. (See, e.g., Maurizio R., supra, 201
Cal.App.4th at pp. 641-642.) Mother "cannot be permitted to defeat the Hague
Convention" by refusing to return to Mexico with the children. (Id. at p. 641.) Assuming
on remand of this matter the trial court does not alter its conclusion the children must be
returned to Mexico (i.e., based on the children's views as discussed below), the court
should craft conditions and undertakings that do not require Mother's cooperation in their
return to Mexico. (Id. at pp. 641-642.) For example, the court may give Mother the
choice to return to Mexico with the children, but if she chooses not to do so, it may
appoint a guardian, child welfare escort, or other responsible third party to escort the
children back to Mexico for further custody proceedings there. (Id. at p. 641; cf. Simcox,
supra, 511 F.3d at p. 610 ["[T]he court must provide for a contingency to assure the
children's safety and care should Mrs. Simcox choose to remain in the United States."].)
There is nothing in the record indicating the courts in Mexico are unable to issue orders
to protect the children's physical and emotional health pending the outcome of the
custody proceedings there. (Maurizio R., at pp. 641-642 [regarding courts in Italy].) In
the unlikely and rare circumstance that the trial court finds it impossible to craft
conditions or undertakings that would protect the children from emotional harm by Father
on their immediate return to Mexico, it may be necessary that it deny Father's petition.
(Cf. Simcox, at pp. 610-611.)
B
Mother also asserts the trial court erred as a matter of law by conditioning the
children's return to Mexico on Mother's application for, and the issuance of, a protective
11
order from the Tijuana family court. The Order states: "To further protect the children
from a grave risk of emotional harm, the court further orders Mother to request a
restraining order or other protective order for herself and the children from the Tijuana,
Baja California, Family Court on or before November 16, 2014, to allow the children's
safe return." The Order further stated: "Upon receiving the protective order the minor
children shall immediately return to Tijuana, Mexico and to the family home . . . in the
Mother's custody . . . ." The record shows that Mother apparently applied for such a
protective order before the November 13, 2014, hearing on the terms of the Order, but it
does not show whether such an order had been issued by that date or whether one has
since been issued by the Tijuana family court.
"[C]onditioning a return order on a foreign court's entry of an order . . . raises
serious comity concerns." (Danaipour v. McLarey (1st Cir. 2002) 286 F.3d 1, 23;
Maurizio R., supra, 201 Cal.App.4th at p. 644.) Nevertheless, we generally agree with
the trial court's attempt to guide the parties in obtaining an order from the Tijuana family
court to protect the children from the risk of emotional harm by Father. However, similar
to our reasoning above that precludes the court from requiring Mother to return to
Mexico with the children, the court also has no authority to require Mother to apply for a
protective order from the Tijuana family court. Absent evidence in the record showing
otherwise, we presume there may be alternative means by which a protective order may
be obtained from a court in Mexico to protect the children in the event Mother does not
voluntarily apply for, and obtain, such an order. Furthermore, absent a finding by the
trial court that there would be a grave risk of emotional harm to the children by Father
12
were they returned to Mexico in the immediate custody of Mother, a guardian, a child
welfare escort, or other responsible third party (other than Father), it should not have
conditioned their return on the issuance of a protective order by the Tijuana family court.
We cannot presume the courts in Mexico are unable to promptly issue orders to protect
the children's emotional health pending the outcome of the custody proceedings there.
(Maurizio R., supra, 201 Cal.App.4th at pp. 641-642 [regarding courts in Italy].)
C
Mother also asserts the trial court erred by including in the Order conditions or
undertakings that it could not enforce. For example, she cites the order that Father vacate
the family home in Tijuana. She correctly argues the trial court could not enforce that
order, nor is there anything in the record showing the Tijuana family court would enforce
that order. By so ordering, the court erred. However, we disagree with Mother's
assertion that the trial court must deny Father's petition if it cannot enforce that or other
conditions. (Cf. Danaipour v. McLarey, supra, 286 F.3d at p. 25-26 [if grave risk or
other exception applies, a court should not exercise its discretion to return the child
unless enforcement of its undertakings can be guaranteed]; Simcox, supra, 511 F.3d at p.
606.) As a general rule, a court should only issue orders that it has the ability to enforce.
Nevertheless, it should not be dissuaded from issuing appropriate orders if their
enforcement is not "guaranteed."
D
Mother also asserts the trial court erred by ordering the return of the children to
Mexico because Father did not carry his burden to present evidence showing the
13
conditions or undertakings ordered by the court would alleviate the risk of emotional
harm to the children. Citing Baran v. Beaty (11th Cir. 2008) 526 F.3d 1340, she argues
that because the trial court found there would be a grave risk of harm to the children were
they returned to Mexico immediately in Father's custody, it was his burden to then
present evidence that specific undertakings would alleviate that risk. (Id. at pp. 1349,
1352-1353.) She further argues that because Father did not propose any specific
undertakings or present any evidence that the undertakings would alleviate the grave risk
to the children were they to be in his immediate custody, the trial court should have
denied his petition for their return under the Hague Convention. We disagree. Although
it would be helpful for the petitioning parent to propose specific undertakings to the court
and present evidence showing that those undertakings would alleviate any grave risk to
the children on their return to the country of their habitual residence, we cannot conclude
a court must deny a petition absent such proposed undertakings and evidence in support
thereof. Rather, we believe it is incumbent on the trial court, with or without the
assistance of either parent, to determine, based on the evidence before it, whether
sufficient conditions or undertakings can be crafted that would avoid harm, or at least
reduce it to a level less than a grave risk of harm, to the children were they to be returned
to the country of their habitual residence. We conclude the trial court did not err by not
denying Father's petition as asserted by Mother.
E
Mother also asserts the trial court erred by granting Father's petition and should
have denied it simply because the court found there would be a grave risk of emotional
14
harm to the children were they returned to Mexico in the immediate custody of Father.
However, the court also found there would be, in general, no grave risk of emotional
harm to the children were they otherwise returned to Mexico (i.e., not in Father's
immediate custody). Furthermore, the trial court presumably believed a return order
subject to certain conditions and undertakings would be sufficient to protect the children
from the risk of any emotional harm on their return to Mexico. Although there are errors
in certain conditions and undertakings of the Order, as discussed above, we believe the
court was correct that conditions and undertakings could be crafted that would be
sufficient to protect the children from the risk of any emotional harm on their return to
Mexico. On remand, absent another ground to deny the petition as discussed below, the
court should attempt to craft appropriate conditions and undertakings that would alleviate
that risk.
III
Proceedings on Remand
Mother requests that on remand of this matter we direct the trial court to enter a
new order denying Father's petition. We decline to do so. Rather, on remand the court
should instead first determine, as Mother alternatively suggests, whether either or both of
the children are of sufficient age and degree of maturity and object to their return to
Mexico.3 (Hague Convention, art. 13; Witherspoon, supra, 155 Cal.App.4th at p. 975.)
3 Although the trial court spoke with the children, the record does not show whether
it considered the potential application of this exception to the Hague Convention's
general rule requiring the return of children to the country of their habitual residence.
15
If so, the court may, in the reasonable exercise of its discretion, deny the petition for their
return to Mexico. (Hague Convention, art. 13; Witherspoon, at p. 975; Escobar, supra,
183 Cal.App.4th at p. 746; Blondin v. Dubois, supra, 238 F.3d at p. 166 ["[A] court may
refuse repatriation solely on the basis of a considered objection to returning by a
sufficiently mature child."].) The Hague Convention does not set forth a minimum age at
which a child is old enough and mature enough to trigger that provision. (Blondin, at
p. 166.) However, in other cases children as young as 13, 11, and eight years old have
been found, in the circumstances of those cases, to be of sufficient age and degree of
maturity to make it appropriate for the court to consider their views on their return to the
country of their habitual residence. (See, e.g., Witherspoon, at p. 976 [13- and 11-year-
old children]; Escobar, at pp. 740, 745, 752 [eight-year-old child]; Blondin, at p. 158
[eight-year-old child].)
If the trial court does not deny Father's petition on that ground (i.e., the children
are of sufficient age and degree of maturity and object to their return to Mexico), it shall
craft new conditions and undertakings that are appropriate to protect the children from
the grave risk of emotional harm on their immediate return to Mexico. In so doing, the
court should not order any unauthorized or unenforceable conditions or undertakings and
should consider alternative means to return the children to Mexico other than in Mother's
custody should she decline to voluntarily return to Mexico with them. In the event
appropriate conditions and undertakings cannot be crafted to protect the children from the
grave risk of emotional harm from their Father on their immediate return to Mexico, the
court may deny the petition.
16
DISPOSITION
The Order is reversed and the matter is remanded for further proceedings in
accordance with this opinion. Because we reverse the Order, our stay of that Order
pending further order of this court automatically dissolves. Each party shall bear his or
her own costs on appeal.
McDONALD, J.
WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.
17
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MILTON LEWIS, No. 11-15309
Petitioner-Appellant, D.C. No.
v. 2:02-cv-00013-
ROBERT L. AYERS, KJM-GGH
Respondent-Appellee.
OPINION
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Jr., District Judge, and
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted
January 18, 2012—San Francisco, California
Filed May 30, 2012
Before: M. Margaret McKeown, Richard R. Clifton, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Clifton
5973
LEWIS v. AYERS 5975
COUNSEL
Gary D. Sowards (argued), David A. Senior, Ann K. Tria,
McBreen & Senior, Los Angeles, California, for the
petitioner-appellant.
Barton Bowers (argued), Michael P. Farrell, Michael A. Can-
zoneri, Office of the Attorney General, Sacramento, Califor-
nia, for the respondent-appellee.
OPINION
CLIFTON, Circuit Judge:
Milton Otis Lewis was sentenced to death following Cali-
fornia convictions for first-degree murder and other crimes.
5976 LEWIS v. AYERS
While seeking federal habeas relief, Lewis requested a stay of
the proceedings on the ground that he was not competent at
the time to assist counsel. We have previously held that a
habeas petitioner in a capital case is entitled to such a stay if
he is not presently competent and is raising a claim as to
which he could potentially benefit if he could communicate
rationally with his attorney. Rohan ex rel. Gates v. Woodford,
334 F.3d 803, 819 (9th Cir.), cert. denied, 540 U.S. 1069 (2003).1
Following an evidentiary hearing on Lewis’s competency, the
district court denied the requested stay based on its determina-
tion that Lewis was competent to proceed.
Lewis seeks an immediate appeal of the competency deter-
mination or, in the alternative, mandamus relief. We conclude
that we lack jurisdiction to review the competency determina-
tion at this time because it is not an immediately appealable
order. We also conclude that mandamus relief is not appropri-
ate. We thus dismiss the appeal and deny the petition for writ
of mandamus.
I. Background
Lewis was convicted in 1990 of one count of first-degree
murder, two counts of robbery, one count of burglary, and one
count of attempted murder. As to the first-degree murder con-
viction, the jury also found the special circumstances of rob-
1
We note that the Supreme Court recently granted certiorari to review
our decision in In re Gonzales, 623 F.3d 1242 (9th Cir. 2010). Ryan v.
Gonzales, 132 S. Ct. 1738 (2012). Our decision in Gonzales applied
Rohan (and our subsequent decision in Nash v. Ryan, 581 F.3d 1048 (9th
Cir. 2009)) and held that the petitioner was entitled to a stay pending a
competency determination because he had raised a claim that could benefit
from rational communication with counsel. 623 F.3d at 1246. Even if the
Court reversed Gonzales in a way that effectively overrules Rohan, the
result in this case would be the same because we hold here only that the
district court’s denial of a stay after a determination that petitioner is com-
petent is not subject to immediate appeal and not deserving in this case of
mandamus relief.
LEWIS v. AYERS 5977
bery murder and burglary murder, and, at the penalty phase,
returned a verdict of death. The California Supreme Court
affirmed on direct appeal the convictions and death sentence.
People v. Lewis, 22 P.3d 392 (Cal. 2001). Lewis sought post-
conviction relief in state court, but his petitions were denied.
Lewis filed a habeas petition under 28 U.S.C. § 2254 in the
Eastern District of California on March 31, 2003, followed by
an amended petition on December 13, 2004, which asserted
103 claims. The district court granted summary judgment in
favor of the State on 74 of the claims in 2008. Other claims
remain pending.
In a declaration filed in August 2007, Dr. Pablo Stewart, a
psychiatrist retained on behalf of Lewis, declared that, in his
expert opinion, Lewis was mentally incompetent at the time
of the offense, at the time of the police interview, at the time
of trial, and at the time of the declaration. This declaration
was filed in response to a query by the magistrate judge, made
during a hearing regarding a motion for an evidentiary hear-
ing on some of the habeas claims, about whether Lewis was
presently competent. After Dr. Stewart’s declaration was
filed, the magistrate judge, in order to clarify the assertion of
present incompetency, issued an order requiring Lewis to
either file a motion to stay the proceedings based on current
incompetency or abandon the assertion that he was at that
time incompetent. Lewis filed a motion to stay proceedings
because of incompetency.
The magistrate judge held an evidentiary hearing on
Lewis’s competency. Dr. Stewart testified at the hearing, as
did an expert for the State, Dr. Roderick Ponath, and Lewis’s
counsel for post-conviction proceedings, David Senior.
Dr. Ponath examined Lewis during two full interviews in
2009 and a handful of other brief exchanges around that time.
In a declaration filed prior to the evidentiary hearing, Dr.
Ponath stated that Lewis suffered from a mental disorder, but
5978 LEWIS v. AYERS
he later testified that the disorder “was really minimal effect,
minimal impairment.” Dr. Ponath described how Lewis, with-
out assistance, could describe his appeal process and the
issues he and counsel had discussed pursuing, and Dr. Ponath
expressed the view that Lewis was able to communicate suffi-
ciently with counsel. Thus, Dr. Ponath concluded that Lewis
had, at the time of his examination, the “sufficient present
ability to consult with his attorney with a reasonable degree
of rational understanding.”
At the evidentiary hearing, Dr. Ponath gave further testi-
mony that Lewis’s disorder was possibly influenced by
Lewis’s past methamphetamine use. Dr. Ponath did not
believe Lewis had an impairment that required treatment,
however. On cross-examination, Dr. Ponath stated that, at
least at the time of his testimony, San Quentin Prison had a
procedure in place to identify individuals with major mental
disorders, but that Lewis was never identified as a potential
candidate for monitoring or treatment.
Dr. Stewart, Lewis’s expert, first examined Lewis in two
interviews in 2003. At that time, Dr. Stewart reported that
Lewis “demonstrated paranoid delusions, ideas of reference,
loose associations, pressured speech, clanging associations,
and inappropriate affect . . . .” Dr. Stewart reported that dur-
ing his third examination of Lewis in July 2007, Lewis “pre-
sent[ed] as much improved from the previous examinations.”
Despite the improvement, however, Dr. Stewart stated that
Lewis appeared to be “guarding against appearing mentally
ill, but [was still] marked by evident indications of psychotic
ideation.”
As part of his examinations of Lewis, Dr. Stewart adminis-
tered the MacArthur Competence Assessment Tool for Crimi-
nal Adjudication (“MacCAT”), a standardized test for
determining competency of criminal defendants. In the last
administration of the MacCAT in 2007, Lewis had “improved
measurably,” particularly in two of the three sections, where
LEWIS v. AYERS 5979
his score placed him in the “minimal to no impairment” range
for the “Understanding” portion, and the “mild impairment”
range for the “Reasoning” portion. In the third category, how-
ever, Lewis showed no improvement from 2003 and remained
in the “significantly impaired” range for the “Appreciation”
portion.
Ultimately, Dr. Stewart, while recognizing in his declara-
tion the “waxing and waning of Mr. Lewis’s functioning,”
concluded in his testimony at the evidentiary hearing that
“Lewis does not have the capacity to rationally communicate
with counsel.”
On January 26, 2010, the magistrate judge issued findings
and recommendations which concluded that the motion to
stay should be denied because Lewis was “currently compe-
tent enough to proceed in his habeas action.” On September
2, 2010, the district judge adopted in full the findings and rec-
ommendations and denied Lewis’s motion for a stay of pro-
ceedings.
Lewis seeks to appeal the competency determination,
asserting that we have jurisdiction to review that determina-
tion as an immediately appealable collateral order. Alterna-
tively, Lewis petitions for a writ of mandamus to stay the
habeas proceedings because of his present incompetency. We
address each argument in turn.
II. The Collateral Order Doctrine and the Competency
Determination
[1] We have jurisdiction pursuant to 28 U.S.C. § 1291 to
consider appeals in habeas cases from interlocutory decisions
of the district court that fall under the collateral order doc-
trine. Bittaker v. Woodford, 331 F.3d 715, 717-18 (9th Cir.
2003); see Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541, 546 (1949) (setting forth the collateral order doctrine).
“[T]o be appealable an interlocutory order must satisfy three
5980 LEWIS v. AYERS
requirements: (1) it must be ‘conclusive’; (2) it must ‘resolve
an important question separate from the merits’; and (3) it
must be ‘effectively unreviewable on appeal from a final
judgment.’ ” Osband v. Woodford, 290 F.3d 1036, 1039 (9th
Cir. 2002) (quoting Wharton v. Calderon, 127 F.3d 1201,
1203 (9th Cir. 1997)). All three requirements must be satis-
fied to qualify as a collateral order for the purpose of appeal.
Cordoza v. Pac. States Steel Corp., 320 F.3d 989, 997 (9th
Cir. 2003). The competency determination fails all three
requirements.
We considered a similar question in the context of a federal
criminal prosecution in United States v. No Runner, 590 F.3d
962, 964 (9th Cir. 2009). In that case the defendant, claiming
amnesia due to brain injury, was found mentally competent to
stand trial by the district court after a competency hearing.
The defendant immediately sought to appeal that determina-
tion. Id. at 963-64. We held that a pretrial competency deter-
mination failed to satisfy both the first and third requirements
of the collateral order doctrine.
[2] Regarding the first requirement, we held that “[a] pre-
trial competency order does not conclusively determine the
question of competency.” Id. at 964. We noted that “the ques-
tion of competency remains open throughout the trial, and
may be raised by the defendant, or by the court, at any time.”
Id. (emphasis added); cf. Panetti v. Quarterman, 551 U.S.
930, 934 (2007) (“Prior findings of competency do not fore-
close a prisoner from proving he is incompetent to be exe-
cuted because of his present mental condition.”).
[3] So, too, may Lewis raise his competency at any time in
his capital habeas proceedings. See Nash, 581 F.3d at 1058-59
(holding that a capital habeas petitioner may assert incompe-
tency for the first time on appeal and granting a limited
remand for a competency determination prior to any further
adjudication of the appeal). Though the district court deter-
mined that Lewis was currently competent to proceed, if cir-
LEWIS v. AYERS 5981
cumstances change such that Lewis subsequently becomes
incompetent during the course of his habeas proceedings,
those proceedings may not continue.2 See Rohan, 334 F.3d at
819 (“[W]here an incompetent capital habeas petitioner raises
claims that could potentially benefit from his ability to com-
municate rationally, refusing to stay proceedings pending res-
toration of competence denies him his statutory right to
assistance of counsel, whether or not counsel can identify
with precision the information sought.”).3 Accordingly, a
competency determination in habeas proceedings is not a
“conclusive” order, and the competency determination here
does not satisfy the first requirement of an appealable collat-
eral order.
[4] As for the third requirement of the collateral order doc-
trine, we concluded in No Runner that “[the] right [to compe-
tency] can be protected adequately by post-conviction
appellate review.” 590 F.3d at 966. We expressly rejected the
2
Consistent with our holding here, in a subsequent order the magistrate
judge discussed the unfixed nature of the competency determination, clari-
fying that “[i]f petitioner in this case were to later make a colorable show-
ing of changed circumstances, e.g., that petitioner had reverted to the
condition observed by Dr. Stewart when the doctor first met petitioner, the
undersigned would be mandated by Ninth Circuit precedent to once again
halt proceedings and consider the changed circumstances in a motion to
stay proceedings.”
3
The State contends that Rohan should be reevaluated in light of the
Supreme Court’s decision in Cullen v. Pinholster, 131 S. Ct. 1388 (2011).
“ ‘[W]e may overrule prior circuit authority without taking the case en
banc when an intervening Supreme Court decision undermines an existing
precedent of the Ninth Circuit, and both cases are closely on point.’ ” Mil-
ler v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc) (quoting Gal-
braith v. Cnty. of Santa Clara, 307 F.3d 1119, 1123 (9th Cir. 2002)). We
decline to reevaulate Rohan because Pinholster is not closely on point and
does not undermine the holding in Rohan. Pinholster’s limitation on the
evidence that can be reviewed in a federal habeas proceeding, 131 S. Ct.
at 1398, does not undermine the rule from Rohan that a capital habeas
petitioner is entitled to be able to communicate rationally with counsel
where necessary to assist in making his case.
5982 LEWIS v. AYERS
defendant’s argument that the right to competency is akin to
the rights afforded by the Double Jeopardy Clause: “The
Supreme Court . . . has never held that incompetency includes
an absolute right not to be tried, or that a competency determi-
nation cannot be reviewed effectively on appeal after convic-
tion.” Id. The same reasoning applies to capital habeas
proceedings.
[5] We also conclude that Lewis’s current claim does not
satisfy the second collateral order requirement, that it must
resolve an important question separate from the merits. One
of Lewis’s surviving habeas claims before the district court
“alleges that petitioner was at all relevant times incompetent
to waive rights, assist trial counsel, and stand trial.” Although
this claim asserts incompetency at all times, not just that
Lewis is currently incompetent, a determination of Lewis’s
present competency is of the “nature as to affect, or to be
affected by, [a] decision of the merits” on that claim. Cohen,
337 U.S. at 546. Consequently, we conclude that the sub-
stance of the competency determination “substantially over-
lap[s] [with the] factual and legal issues of the underlying
dispute, making such determinations unsuited for immediate
appeal as of right under § 1291.” Van Cauwenberghe v.
Biard, 486 U.S. 517, 529 (1988).
[6] Because Lewis’s attempt to appeal the district court’s
denial of a stay does not satisfy any of the three requirements
for an appealable collateral order, we lack jurisdiction to
review that order.
III. Mandamus Relief
[7] “ ‘To issue the writ, the court must be firmly convinced
that the district court has erred, and that the petitioner’s right
to the writ is clear and indisputable.’ ” United States v. Austin,
416 F.3d 1016, 1024 (9th Cir. 2005) (quoting Special Invs.,
Inc. v. Aero Air, Inc., 360 F.3d 989, 993 (9th Cir. 2004)).
“Whether a writ of mandamus should be granted is deter-
LEWIS v. AYERS 5983
mined case-by-case, weighing the factors outlined in Bauman
v. United States Dist. Court, 557 F.2d 650 (9th Cir. 1977).”
Cole v. U.S. Dist. Court, 366 F.3d 813, 816-17 (9th Cir.
2004).
In Bauman, we established five guidelines to determine
whether mandamus is appropriate in a given case: (1) whether
the petitioner has no other means, such as a direct appeal, to
obtain the desired relief; (2) whether the petitioner will be
damaged or prejudiced in any way not correctable on appeal;
(3) whether the district court’s order is clearly erroneous as a
matter of law; (4) whether the district court’s order is an oft
repeated error or manifests a persistent disregard of the fed-
eral rules; and (5) whether the district court’s order raises new
and important problems or issues of first impression. 557 F.2d
at 654-55. Lewis does not contend that the fourth or fifth fac-
tors are applicable here, and we agree. We further conclude
that the first three factors do not counsel in favor of manda-
mus relief.
As to the first and second factors, we have already con-
cluded, in our discussion of the collateral order requirements,
that Lewis is entitled to full review of the competency deter-
mination after final judgment on his habeas petition and that
any error in the competency determination is correctable at
that time. No Runner, 590 F.3d at 965-66.
As to the third Bauman factor, we conclude that the district
court’s determination that Lewis was competent at that time
was not clearly erroneous. Clear error is found when a
reviewing court has a “ ‘definite and firm conviction that a
mistake has been committed.’ ” See Easley v. Cromartie, 532
U.S. 234, 242 (2001) (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)). If the district court’s findings
are plausible in light of the entire record, we may not reverse,
even if we would have weighed the evidence differently. See
Husain v. Olympic Airways, 316 F.3d 829, 835 (9th Cir.
2002), aff’d, 540 U.S. 644 (2004); see also Katie A. ex rel.
5984 LEWIS v. AYERS
Ludin v. L.A. Cnty., 481 F.3d 1150, 1155 (9th Cir. 2007).
“ ‘Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly errone-
ous.’ ” United States v. Elliott, 322 F.3d 710, 715 (9th Cir.
2003) (quoting United States v. Working, 224 F.3d 1093,
1102 (9th Cir. 2000)); see also United States v. Al Nasser, 555
F.3d 722, 727 (9th Cir. 2009) (district court’s choice of one
of two plausible accounts was not clearly erroneous). Because
there were two permissible views of the evidence that was
presented to the magistrate judge, the competency determina-
tion was not clearly erroneous.
Reports from examinations of Lewis supported the finding
that he was competent to proceed. The magistrate judge
appeared to accept Dr. Stewart’s assessment that Lewis had
a serious impairment that rendered him incompetent at the
time of the 2003 examination. However, it was not clear error
to concurrently give weight to Dr. Ponath’s later examinations
of Lewis that evinced a sufficiently improved “ability to
understand and communicate rationally with counsel when
necessary.” Nash, 581 F.3d at 1057.
Dr. Stewart did not dispute the behavior reported by Dr.
Ponath in his later examinations of Lewis, but testified that he
would still characterize Lewis as incompetent. Dr. Ponath, on
the other hand, was skeptical of Dr. Stewart’s diagnosis, opin-
ing that Lewis’s condition should not improve as dramatically
as it did between 2003 and 2007 if Lewis in fact had the
degenerative condition that Dr. Stewart diagnosed him as hav-
ing.
Faced with this conflicting expert testimony, it was not
clearly erroneous for the district court to find that the evi-
dence weighed in favor of a competency finding. The magis-
trate judge noted that Lewis was directly responsive in his
answers about his case to Dr. Ponath, and that this correlated
with Lewis’s high score on the “Understanding” portion of
the MacCAT in 2007. Such an ability to understand, coupled
LEWIS v. AYERS 5985
with only a “mild impairment” in reasoning capability, could
plausibly indicate an ability to rationally communicate with
counsel.4 Further, Lewis’s responsive and otherwise normal
trial testimony illustrated the waxing and waning nature of
Lewis’s mental condition.
[8] The district court was thus presented with contrasting
opinions that reasonably supported both sides of the compe-
tency issue, and it was plausible to conclude that the State’s
evidence was more persuasive. We do not have a definite and
firm conviction that a mistake was made in the competency
determination. Consequently, this final factor also counsels
against granting mandamus relief.
IV. Conclusion
The appeal is dismissed for lack of jurisdiction to collater-
ally review the competency determination. The petition for
writ of mandamus is denied.
APPEAL DISMISSED FOR LACK OF JURISDIC-
TION; PETITION FOR WRIT OF MANDAMUS
DENIED.
4
Lewis contends that his consistent poor performance on the “Apprecia-
tion” portion of the MacCAT precludes a finding of competence. The
magistrate judge considered the declarations and testimony on the admin-
istration of this test, and it was not clearly erroneous to place more weight
in the areas of Lewis’s improved test scores (and the interview with Dr.
Ponath consistent with those improvements) over Lewis’s repeatedly
lower scores on the “Appreciation” portion.
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211 B.R. 173 (1997)
In re James F. PUGLIESE, Debtor.
SEARS, ROEBUCK & COMPANY, Plaintiff,
v.
James F. PUGLIESE, Defendant.
Bankruptcy No. 5-95-01582, Adversary No. 5-95-00572A.
United States Bankruptcy Court, M.D. Pennsylvania, Wilkes-Barre Division.
July 15, 1997.
*174 Raymond Ferrario, Scranton, PA, for debtor.
Charles Phillips, Wyomissing, PA, for Sears.
OPINION AND ORDER[1]
JOHN J. THOMAS, Bankruptcy Judge.
On December 29, 1995, Sears, Roebuck & Company, the Plaintiff, filed a Complaint to designate certain debts incurred by James F. Pugliese, the Debtor, as nondischargeable pursuant to 11 U.S.C. § 523(a)(6). A trial regarding the dischargeability of the debt owed to Sears, Roebuck & Company was conducted on August 27, 1996. After reviewing the pleadings and the transcripts, the facts of this case are as follows.
On two occasions, the Debtor executed credit applications with the Plaintiff, who in turn extended credit to the Debtor in the form of two revolving charge accounts. Debtor was granted use of these two accounts to charge purchases at Sears retail stores in exchange for his agreement to repay the purchase price plus finance charges. During the period of August 23, 1993 through February 22, 1995, the Debtor accumulated $7,073.30 in charges for the following hardline items:
Revolving Charge Account # 1
10/24/94 Canon BU200E $ 431.85
11/30/94 Software $ 218.32
12/24/94 Camcorder $ 985.78
2/11/95 TV/Deep Cleaner $ 900.98
_________
TOTAL $2,532.93
Revolving Charge Account # 2
8/23/93 VCR $ 454.73
12/31/93 Hoover Vacuum $ 211.99
11/5/94 Computer Components $2,236.59
12/94 3 Phones, Canon Taple [sic] Top
Stereo $1,031.27
2/22/95 TV, SNY, KFC800 $ 296.67
1/95 13"LXI TV, 2 Phones, TV $ 688.85
_________
TOTAL $4,536.37
With each purchase of merchandise, the Debtor had to sign a sales invoice stating:
"Purchased under my Sears charge agreement incorporated by reference. I grant Sears a security interest in this merchandise until paid, unless prohibited by law." (Transcript of 8/27/96 at 11.)
The Plaintiff claims the sales invoice constituted a valid security agreement granting Sears a security interest in the merchandise purchased by the Debtor. See In re Hance, 181 B.R. 184 (Bankr.M.D.Pa.1993). However, the Debtor testified he did not read the sales invoice prior to signing it nor did he have an understanding of any security agreement when he signed the receipt at the time of purchase. (Transcript of 8/27/96 at 12, 22.) After reading a portion of the sales invoice into the record, the Debtor agreed the language appeared to give Sears a lien in the merchandise he purchased. (Transcript of 8/27/96 at 12.)
The Debtor continued to make monthly payments until May of 1995. During the period of 1992 through November 1994, the Debtor worked as a salesman earning approximately $28,000 per year at his father's Italian food brokerage, James Pugliese Company. In November of 1994, James Pugliese Company went out of business. The Debtor received unemployment compensation until May 1995. He resumed employment in October of 1995 working for Hadden Craftsman.
On September 26, 1995, the Debtor filed for bankruptcy under chapter 7 of the Bankruptcy Code. Much of the merchandise purchased by the Debtor was sold at various times prior to the filing of the petition. The Plaintiff was not notified prior to the sale of the merchandise nor were any of the proceeds from the sale paid to Plaintiff to reduce the amount of indebtedness owed to it. The Debtor testified the money obtained from the sale of the merchandise was used to purchase drugs during a period of time when he was addicted to drugs. The only item the Debtor retained was the Hoover vacuum cleaner which is currently inoperable. The Plaintiff withdrew its claim for indebtedness owed on *175 the vacuum cleaner, but contends that 11 U.S.C. § 523(a)(6) precludes the Debtor from obtaining discharge on the remaining debt in this case.
The purpose of the Bankruptcy Code is to provide the honest but unfortunate debtor with a fresh start by relieving the debtor from indebtedness. Section 523(a)(6) excepts from discharge a debt for "willful and malicious injury by the debtor to another entity or to the property of another entity." 11 U.S.C. § 523(a)(6). This exception to the general discharge provision was intended to safeguard the fresh start policy from abuse. In re McGuffey, 145 B.R. 582 (Bankr.N.D.Ill.1992). As enunciated by the United States Supreme Court and further embellished by the Third Circuit, when a creditor challenges the dischargeability of a debt, it is incumbent upon that creditor to prove by a preponderance of the evidence the debtor willfully and maliciously injured the creditor or his property. Grogan v. Garner, 498 U.S. 279, 288, 111 S.Ct. 654, 660, 112 L.Ed.2d 755 (1991); In re Braen, 900 F.2d 621 (3rd Cir.1990); In re Grubb (DeMarco v. Grubb), 1996 WL 230019, at *2 (E.D.Pa. May 3, 1996).
In re Braen represents the Third Circuit's decree that when advocating to avoid discharge under § 523(a)(6) a creditor must prove the debtor intentionally inflicted the claimed injury. The issue was whether a New Jersey state court judgment against a debtor was excepted from discharge as a willful and malicious injury pursuant to § 523(a)(6) of the Bankruptcy Code.
Several courts in the Third Circuit have set forth the legal principles that govern claims brought under § 523(a)(6). The hallmark of "willful" conduct is deliberate and intentional action which necessarily leads to injury. In re Maula, 166 B.R. 49, 52 (Bkrtcy.M.D.Pa.1994). Malicious conduct is signified by behavior employed with "conscious disregard of one's duties or without just cause or excuse." In re Galizia, 108 B.R. 63, 69 (Bankr.W.D.Pa.1989). The Third Circuit Court of Appeals conjoined these two principles and held a debtor's actions are willful and malicious if furnished with "the purpose of producing injury or substantial certainty of producing injury." In re Conte, 33 F.3d 303, 307 (3rd Cir.1994). Thus, to except the debt owed to the Plaintiff from discharge, the Plaintiff must show that the Debtor acted deliberately and with substantial certainty that his actions will produce injury. Id. at 307-309.
In dicta, the Conte court assented to the legal affirmation of various bankruptcy courts which held § 523(a)(6) does not require a showing of specific malice. Id. at 308. However, this artful language does not relieve the creditor from the burden of establishing by a preponderance of the evidence a debtor acted with some degree of culpability. If this Court were to tender a ruling in favor of nondischargeability where the debtor acted in a careless manner, without the realization that his actions were injurious to the creditor, the relevancy of the word "malicious" in § 523(a)(6) would be frustrated.
Plaintiff's post-trial brief includes citation to In re DeMarco, 1996 WL 230019, at *2 (E.D.Pa. May 3, 1996). This appellate court case supports our position. Christine DeMarco successfully obtained a $30,000 judgment against her former boss, Thomas Grubb, in an action alleging wrongful misrepresentation of the character of a check. Sometime afterward, Mr. Grubb filed a chapter 7 bankruptcy petition. Ms. DeMarco filed an adversary proceeding to except from discharge the debt owed to her by Mr. Grubb. The bankruptcy court used Conte as the controlling authority for this matter and quoted a state court jury finding to specifically illustrate § 523(a)(6) does not except discharges based upon recklessness. The jury finding read that Conte acted with "Knowledge of a high degree of probability of harm and reckless indifference to the consequences." Id. The United States District Court affirmed the bankruptcy court's decision holding, "Under Conte § 523(a)(6) does not except debts that are the product of reckless injury to the debtor." Id. at *3.
The Plaintiff advocates Sears was willfully and maliciously injured by the Debtor. It asserts the Debtor disposed of assets in which Sears possessed a security interest, failed to remit proceeds from the sales of the *176 collateral to Sears, and utilized the proceeds to purchase drugs in support of Debtor's drug addiction. Further, the Plaintiff charges this was done without the knowledge or consent of Sears, in direct disregard for their security interest, absent justification or excuse from the Debtor, and certain to cause substantial injury to Sears. We disagree.
Although the Debtor testified he disposed of certain items purchased with his Sears credit card to feed his drug addiction, this Court is not convinced the Debtor's actions constitute malicious injury. During cross examination, the Debtor correctly articulated the concept of mortgage foreclosure and security agreements. However, the Debtor's testimony reflects he did not read the security clause contained in the sales invoice prior to signing it. The mere conveyance of property encumbered by Plaintiff's purported security interest does not in itself constitute malicious injury. Davis v. Aetna Acceptance Co., 293 U.S. 328, 332, 55 S.Ct. 151, 153, 79 L.Ed. 393, 396 (1934), In re Rooney, 121 B.R. 478, 479 (Bankr.W.D.Pa.1990), In re Horldt, 86 B.R. 823, 827 (Bankr.E.D.Pa.1988).
Furthermore, Plaintiff contends the Debtor's actions were substantially certain to cause injury. The supplemental brief filed by Debtor's counsel highlights facts which nullify its contention. During the period from 1992 through November of 1994, the Debtor made purchases on his credit card while earning an average of $28,000 per year. The remaining purchases were made while the Debtor was receiving unemployment compensation. The Debtor continued to honor his monthly credit card bill from Sears until June of 1995. Debtor's unemployment compensation ended in May of 1995. The Debtor filed for bankruptcy four months later and procured employment the following month. The Debtor's testimony also indicates he kept a ledger of the amount of debt he owed to his creditors and intended to repay his debt. The Plaintiff has not established the Debtor sold the merchandise with the purpose of producing harm or the knowledge that he was substantially certain the sale of the merchandise would injure Sears. Furthermore, the Plaintiff has not demonstrated how the disposition of this collateral caused injury to Sears. Without further proof, this Court finds Debtor's actions did not result in willful and malicious injury to Sears. Accordingly, the Plaintiff's claim fails, § 523(a)(6) does not except the Debtor's debt from discharge.
NOTES
[1] Drafted with the assistance of Susan E. Battisti, Extern Law Clerk.
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107 F.3d 4
NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.UNITED STATES of America, Appellee,v.Matteo GAMBINO, Defendant-Appellant.
No. 96-1269.
United States Court of Appeals, Second Circuit.
Jan. 09, 1997.
APPEARING FOR APPELLANT: Martin G. Goldberg, Franklin Square, N.Y.
APPEARING FOR APPELLEE: Morris Panner, Asst. U.S. Atty., New York, N.Y.
Present: NEWMAN, Chief Judge. FEINBERG, McLAUGHLIN, Circuit Judges.
1
This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York and was argued by counsel.
2
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is hereby AFFIRMED.
3
Matteo Gambino appeals from the District Court's judgment of conviction entered on May 1, 1996, following a jury verdict convicting him of conspiracy to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. § 846, and of distributing and possessing with intent to distribute heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1) & 841(b)(1)(B). Gambino raises three arguments on this appeal: (i) he was denied the right to conflict-free counsel when the District Court permitted the lawyer representing co-defendant Troia to represent Gambino for the purpose of making a bail application; (ii) the District Court's failure to grant him a continuance effectively deprived him of a fair trial; and (iii) his trial counsel's decision to proceed with trial as originally scheduled constituted ineffective assistance of counsel.
4
1. At an April 1995 conference to discuss bail, attorney Bronson and his associate Marx appeared on behalf of Gambino and moved for his release on bail. The Government immediately alerted the District Judge to the fact that Gambino had been represented by someone else prior to this hearing, and that Bronson and Marx were also representing co-defendant Troia in this case. Having been advised of the potential conflict, the Court turned immediately to Bronson, who advised the Court that "there will be an appropriate waiver when and if representation is continued on behalf of Mr. Gambino."
5
Over the next month, Bronson and Marx continued to represent Gambino in connection with his effort to secure release on bail. The District Court denied bail in mid-May 1995. During a pre-trial conference held on May 22, 1995, for the purpose of hearing oral argument on defense motions, Marx appeared on behalf of Troia and stated that neither she nor Bronson would continue to represent Gambino because Troia refused to waive his right to conflict-free counsel. After admonishing Marx for not informing the Court of this circumstance more promptly, the District Judge went forward with the hearing on the motions filed by the other defendants, but treated Gambino as having joined these motions and afforded Gambino an opportunity to file supplemental motions once he obtained new counsel. New counsel was appointed for Gambino on that same day, approximately four months before the start of trial.
6
Both the Sixth Amendment and Fed.R.Crim.P. 44(c) require a district court to inquire into the possibility of conflict of interest when co-defendants are represented by the same counsel. See United States v. Levy, 25 F.3d 146, 153 n. 6 (2d Cir.1994). To fulfill this so-called "inquiry" obligation, the court must investigate the facts and details of the attorney's interests to determine whether the attorney in fact suffers from any conflict. Id. at 153. The trial court is generally entitled to rely on counsel's representations that no conflict exists, even if those representations later turn out to be incorrect, in fulfilling its inquiry obligation. See id. at 154. In this case, when the Government attorney alerted the District Court to the possibility of conflict, it immediately asked Bronson about this issue. Though Bronson's representation to the Court that the appropriate waivers would be forthcoming "when and if representation is continued" on Gambino's behalf subsequently proved to be erroneous, the District Court properly performed its inquiry obligation and was entitled to rely on counsel's assurance that any potential conflict issue would be considered, if necessary, at a later time.
7
Moreover, even assuming that Gambino was represented by an attorney with a potential conflict of interest for a short period of time several months before the start of trial, Gambino cannot demonstrate that this alleged impropriety resulted in any prejudice. See United States v. Pascarella, 84 F.3d 61, 67 (2d Cir.1996). The record shows that Bronson and Marx represented Gambino only with respect to his bail application, that this representation lasted for little more than a month, and that the District Court immediately appointed new, conflict-free counsel when it became apparent that Bronson and Marx would be unable to represent Gambino. New counsel was appointed for Gambino more than four months before trial. See id. at 67 ("Any conflict of interest that undermined [prior attorney's] ability properly to represent [defendant] disappeared once [prior attorney] no longer represented him."). Additionally, the District Court removed any possibility of prejudice to Gambino resulting from Bronson's month-long representation by treating Gambino as having joined in his co-defendants' pretrial motions and by permitting Gambino's subsequently appointed counsel to file supplemental motions on his behalf even though the Court's motion deadline had otherwise passed.
8
2. On the first day of trial, Gambino, in direct conflict with his new trial counsel's earlier representation to the Court that counsel was prepared for trial, stated to the District Judge that he needed additional time to listen to all 2,000 or so tapes provided by the Government--especially those containing secretly recorded conversations between him and the Government informant--in order to prepare his entrapment defense. The District Court denied Gambino's request and continued with the trial as scheduled, noting that defendant had ample time to listen to the relevant tapes and that he brought any potential problem upon himself by refusing to work with his previous court-appointed attorneys.
9
There was no obligation upon the District Court to grant a continuance in these circumstances. As the Supreme Court stated in a similar context, "In the face of the unequivocal and uncontradicted statement by a responsible officer of the court that he was fully prepared and 'ready' for trial, it was far from an abuse of discretion to deny a continuance" requested by the defendant himself. Morris v. Slappy, 461 U.S. 1, 12 (1983). Furthermore, as Morris held, "broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel." Id. at 11-12; see United States v. Hurtado, 47 F.3d 577, 584 (2d Cir.1995). Here, the record shows that the Court acted well within its discretion because there was no justification for delay; the tapes were in Gambino's possession months before trial, Gambino's trial counsel had read the transcripts for all the tapes during the month preceding the trial, and the Government had identified two weeks before trial the thirty or so tapes that it would offer into evidence. Gambino's contention that he needed time to listen to all the tapes in order to prepare his entrapment defense is without merit. There were at most several tapes, beyond the thirty or so that the Government had earlier designated, containing material relevant to the entrapment defense. The great majority of the tapes were irrelevant to the entrapment issue because they concerned either other aspects of the Government investigation, other defendants, or events subsequent to Gambino's sales of heroin to the informant. Gambino and his trial counsel had more than sufficient time to prepare for trial.
10
3. Gambino alternatively argues that trial counsel provided ineffective assistance by representing to the Court that he was prepared for trial on the originally scheduled date. We reject Gambino's claim because he has failed to show that he has suffered any prejudice resulting from the alleged deficiency. Although Gambino asserts that trial counsel should have allowed him time to review all the tapes and then consulted with him concerning their content, Gambino has not identified any passage in these tapes tending to support his entrapment defense. Moreover, the record reveals that trial counsel was fully prepared for trial on September 27, 1995, and provided Gambino with more than adequate representation throughout the proceedings. Gambino was in no way harmed by trial counsel's decision to proceed to trial on the scheduled date.
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127 N.J. Super. 496 (1973)
317 A.2d 779
LOUIS ESPIN, PLAINTIFF,
v.
ALLERGAN PHARMACEUTICAL, INC., DR. VINCENT CARTER, JR. AND ENGLEWOOD CLIFFS PHARMACY, INC., DEFENDANTS.
Superior Court of New Jersey, Law Division.
Decided December 14, 1973.
*497 Mr. Harry H. Chandless, Jr., for plaintiff.
Mr. Neil Reiseman, for defendant, Englewood Cliffs Pharmacy, Inc. (Messrs. Conway, Reiseman & Michals, attorneys), and also argued case for other defendants.
PETRELLA, J.C.C., Temporarily Assigned.
By order of the Assignment Judge of October 11, 1973, this matter was put on the inactive list because of plaintiff's inability or unwillingness to submit to an eye examination.
Defendants on this motion now seek to dismiss the complaint or in the alternative toll the running of prejudgment interest allowed by Rule 4:42-11(b).
The Court denies the motions to dismiss on the ground that R. 1:13-7 allowed a six month period on the inactive list and the Order of October 11, 1973 did not require an eye examination on a specific date but allowed placing the case on the inactive list until the plaintiff submitted to the examination, or, implicitly, such period allowed by the rules expired.
The Court rules do not expressly provide for the tolling of interest during the period plaintiff is unable or unwilling to prosecute his case. The purpose of the allowing of prejudgment interest is to discourage defendants from deferring payments of awards or settlements to injured plaintiffs. Busik v. Levine, 63 N.J. 351 (1973). Since the rule is for the benefit of plaintiffs it is only fair and equitable that where a plaintiff is unable or unwilling to proceed with his case, the court may exercise its inherent power to suspend the running of such interest where defendant is not at fault. See R. 1:1-2.
Application of the prejudgment interest rule in its literal form would neither promote fairness in administration nor prevent an injustice under the circumstances.
*498 Accordingly, the motion to suspend the running of prejudgment interest for the period the case remains on the inactive list pursuant to the aforementioned order is granted.
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985 So.2d 578 (2008)
Gustave BENYA, Appellant,
v.
STATE of Florida, Appellee.
No. 4D06-4636.
District Court of Appeal of Florida, Fourth District.
April 23, 2008.
Rehearing Denied July 29, 2008.
Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
FARMER, J.
We affirm the revocation of probation, and in so doing uphold the trial court's determination that the search by police was not improper.
The probation order here provided for warrantless searches of the probationer's residence without probable cause. Police received information from a confidential informant that the probationer was in possession of illegal drugs and a firearm. Because they had a reasonable suspicion of criminal activity, they communicated with his probation officer, who agreed to set up a search of his residence with the participation of the police. They were conducting surveillance at his residence *579 immediately before the search. When the probation officer and investigating police arrived at his residence, he was already outside speaking to other police officers involved in the surveillance.
The officers on surveillance had seen him back his vehicle out of his driveway and park it on the street. As he walked back toward his house, the surveillance team saw the van begin rolling backwards until it rolled into an auto parked behind it. The surveillance team thereupon approached and began talking to him. The probation officer and investigating officer arrived on the scene just in time to observe these events. The police officer investigating the matter then informed defendant that they were there to conduct a search of his residence. Which they then did and found enough drugs to charge and convict for trafficking and a firearm to charge and convict for possession by a convicted felon.
Defendant's argument to the trial court and here is that all of this was a pretense for police officers to do an improper search of his residence without probable cause. But in Soca v. State, 673 So.2d 24 (Fla. 1996), the Florida Supreme Court held that the evidence obtained in a warrantless search of a probationer's residence by a probation supervisor, although tipped-off and accompanied by a police investigator, was admissible in a probation revocation hearing, even though it would not be admissible in the criminal case unless that search met all the usual constitutional search and seizure requirements. 673 So.2d at 25.
In United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), the United States Supreme Court has since held that warrantless searches of a probationer's residence, supported by a reasonable suspicion but not probable cause, are reasonable under the Fourth Amendment. Thus evidence found in such a search may be admitted even in resulting criminal prosecutions. When Soca was decided by the Florida Supreme Court there had been no such construction of the Fourth Amendment by the United States Supreme Court. The Soca court was therefore able to allow greater search protection than required by the Fourth Amendment because then there was nothing to which Florida courts were required to conform by the Conformity Clause to the Florida Constitution.[1]
With Knights, however, conformity to the Fourth Amendment would seem to make Florida law identical to federal law. Surely, at a minimum, it means that a warrantless search of a probationer's residence supported, as here, by a reasonable suspicion, would allow the evidence thus seized to be used to support a revocation of probation. See Bamberg v. State, 953 So.2d 649 (Fla. 2d DCA 2007) (holding that under Knights, where probation order provided for warrantless searches of probationer's residence, evidence seized in police search supported by reasonable suspicion is admissible in probation revocation proceedings in spite of investigatory motive for search), rev. denied, 966 So.2d 965 (Fla.2007). In light of Knights, it is no longer necessary for police armed with a reasonable suspicion to go through the subterfuge of having the probation officer perform a routine, "administrative" search of the residence under the warrantless search provision in the probation order.
Affirmed.
WARNER, J., and CONNER, BURTON C., Associate Judge, concur.
NOTES
[1] Art. I, § 12, Fla. Const. (1982).
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133 S.W.3d 332 (2004)
Jonathan Shane Ross PEAKE, Appellant,
v.
The STATE of Texas, Appellee.
No. 07-03-0216-CR.
Court of Appeals of Texas, Amarillo.
April 22, 2004.
*333 Mark Phillips, Conroe, for appellant.
Michael C. Young, Assistant District Attorney, Conroe, for appellee.
Before QUINN, REAVIS, and CAMPBELL, JJ.
Memorandum Opinion
BRIAN QUINN, Justice.
Appellant Jonathan Shane Ross Peake appeals his conviction for aggravated robbery. Through two issues, he contends that 1) the trial court abused its discretion when it admitted into evidence expert fingerprint testimony in violation of Daubert v. Merrell Dow Pharmaceuticals, Inc.[1] and its progeny, and 2) he received ineffective assistance of counsel. We affirm the judgment of the trial court.
Background
On May 10, 2002, a black man (Tywon Lang) knocked on the door of the home of Richard Blackmoore who recognized the man as someone who had come to his door several days before with a white man (later identified as appellant). Lang asked to mow Blackmoore's lawn. Blackmoore denied the request. When Lang departed, he failed to shut the gate to the yard. Fearing that his dog would escape, Blackmoore went out the front door several minutes later to rectify Lang's default. At that point, he was confronted by both Lang and appellant. The latter was wearing a ski mask and had a gun which he used to force his way into the residence. The men tied up Blackmoore with a dog leash and took a Rolex watch and some cash. During the robbery, Blackmoore's dog bit Lang on his leg.
Lang and appellant attempted to leave the scene in a red pickup, later identified to be owned by appellant's mother, but the engine would not start. In attempting to start the vehicle, Lang pushed the pickup and appellant steered. While doing so, they were observed by a neighbor, Myra Nash. Lang subsequently left the vehicle, was stopped by police on foot, admitted his involvement in the robbery, and showed police where to find the watch. So too did he testify at appellant's trial and expressly inculpate himself and appellant.
Issue OneExpert Testimony
In his first issue, appellant complains about the admission into evidence of testimony regarding fingerprint analysis conducted by a purported expert. It was allegedly inadmissible because it was "hard to square with Daubert." We overrule the issue for it was waived.
During trial, appellant complained of the reliability of the expert testimony with respect to palm print analysis, while on appeal, he complains of the testimony with respect to fingerprint analysis. Furthermore, *334 counsel for appellant took care to distinguish between the two subjects below. Thus, given that the objection uttered below does not comport with the issue asserted on appeal, the purported error was and is waived. Massey v. State, 933 S.W.2d 141, 157 (Tex.Crim.App.1996).
Issue TwoIneffective Assistance
In his second issue, appellant contends his trial counsel was ineffective since he failed to object to the identification of him as one of the robbers by Blackmoore and Nash. We overrule the issue.
The standard by which we review ineffective assistance of counsel claims is well established. Thus, we will not repeat it, but cite the parties to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Tong v. State, 25 S.W.3d 707 (Tex.Crim.App.2000), cert. denied, 532 U.S. 1053, 121 S.Ct. 2196, 149 L.Ed.2d 1027 (2001), and Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986) for an explanation of same. Further, claims of ineffective assistance must be firmly founded in the record. Rios v. State, 990 S.W.2d 382, 385 (Tex.App.-Amarillo 1999, no pet.).
With regard to the in-court identification by Blackmoore, appellant fails to explain why the testimony was inadmissible. He simply states that it "was so objectionable the ... Court felt it necessary to attempt to clarify" it. Furthermore, the specific objection that counsel was purportedly required to make goes unmentioned, as does any authority supporting the conclusion that the evidence was inadmissible. Thus, we are left to guess at the reasoning underlying appellant's claim and at the legitimacy of that reasoning, if any. And, because of that, the complaint was waived due to insufficient briefing. See Garcia v. State, 887 S.W.2d 862, 880-81 (Tex.Crim. App.1994), overruled in part on other grounds by Hammock v. State, 46 S.W.3d 889 (Tex.Crim.App.2001) (overruling the claim that counsel was ineffective due to his failure to object since the appellant failed to explain "how counsel might have kept the statement out"); Melonson v. State, 942 S.W.2d 777, 782 (Tex.App.-Beaumont 1997, no pet.) (holding that an appellant must not only specifically identify the deficiencies in counsel's performance but also identify the specific objection that should have been made and provide authority in support of his argument that the objection would have been meritorious).
As to the out-of-court identification by Nash, we also find it to be insufficiently briefed. Appellant had the burden to prove not only that counsel's performance was deficient but also that the deficiency prejudiced him. Tong v. State, 25 S.W.3d at 712. While the former element is addressed at bar, the latter is not. Nowhere does appellant endeavor to explain how trial counsel's perceived failure to attempt to suppress Nash's testimony created a reasonable probability that but for the supposed error the result would have been different. This is of dire import in view of Lang's testimony and the other evidence directly inculpating appellant. And, given that the burden lies with "[a]ppellant ... [to] prove both prongs of [the test] by a preponderance of the evidence in order to prevail," id. (emphasis added), we have no duty to unilaterally fill the void appellant left.
Accordingly, the judgment of the trial court is affirmed.
NOTES
[1] 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
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142 P.3d 609 (2006)
CITY OF SPOKANE v. BECK.
No. 78021-8.
Supreme Court of Washington, En Banc.
September 7, 2006.
Disposition of petition for review denied.
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248 P.3d 689 (2010)
Ronald T. WEST, Appellant,
v.
STATE of Alaska, BOARD OF GAME, and McKie Campbell, Commissioner, Department of Fish and Game, Alaska Wildlife Alliance, Defenders of Wildlife, Sierra Club, Tom Classen, and Friends of Animals, Appellees.
Alaska Wildlife Alliance, Defenders of Wildlife, Cross-Appellants,
v.
Ronald T. West, State of Alaska Board of Game, and McKie Campbell, Commissioner, Department of Fish and Game, Sierra Club, Tom Classen, and Friends of Animals, Cross-Appellees.
Nos. S-13184, S-13343.
Supreme Court of Alaska.
August 6, 2010.
Rehearing Denied April 5, 2011.
*691 Robert C. Erwin, Robert C. Erwin, LLC, Anchorage, and Ronald T. West, Anchorage, for Appellant and Cross-Appellee, Ronald T. West.
Michael J. Frank, Trustees for Alaska, Anchorage, and Valerie Brown, Law Office of Valerie Brown, LLC, Anchorage, for Appellees and Cross-Appellants, Defenders of Wildlife and Alaska Wildlife Alliance.
Kevin M. Saxby, Senior Assistant Attorney General, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for Appellee, and Cross-Appellee, State of Alaska.
Notice of non-participation filed by Michael A. Grisham, Dorsey & Whitney LLP, Anchorage, for Appellees and Cross-Appellees, Friends of Animals, Inc. and Tom Classen.
No appearance by Appellee and Cross-Appellee, Sierra Club.
Before: CARPENETI, Chief Justice, FABE, and CHRISTEN, Justices.
OPINION
CHRISTEN, Justice.
I. INTRODUCTION
Two conservation advocacy groups and Ronald T. West appeal a superior court order granting summary judgment in favor of the Alaska Board of Game ("the Board"). The court ruled that the Board's 2006 predator control plans do not violate article VIII, section 4 of the Alaska ConstitutionAlaska's sustained yield clauseand the sustained yield mandate in AS 16.05.255Alaska's intensive game management statute. Appellants contend the Board failed to consider and apply the principle of sustained yield to its management of wolves and bears affected by predator control plans the Board established in 2006. West also appeals the superior court's denial of his motion for attorney's fees. We conclude that the Board has both a constitutional and statutory duty to apply principles of sustained yield when it establishes predator control plans, but appellants did not meet their burden of demonstrating that the 2006 plans fail to comply with sustained yield principles. We also conclude that the superior court did not abuse its discretion in denying West attorney's fees because West was not a prevailing party.
II. FACTS AND PROCEEDINGS
Controlling predator populations to increase prey populations is a practice with a long and sometimes controversial history in Alaska.[1] Following World War II, the federal government began a far-reaching predator control program that used poison baiting and aerial hunting to control wolf populations throughout Alaska. After statehood, the use of poison baiting was prohibited in Alaska but aerial wolf hunting was not. Concerns over aerial wolf hunting and the use of snares continued in the 1990s, as did the *692 controversy over predator control.[2]
Alaska's constitution incorporates principles of natural resource management that serve as the foundation for the management of Alaska's wildlife. Alaska was the first state to have a constitutional article devoted to natural resources, and it is the only state to have a constitutional provision addressing the principle of sustained yield.[3] Alaska's sustained yield clausearticle VIII, section 4provides that:
[f]ish, forests, wildlife, grasslands, and all other replenishable resources belonging to the State shall be utilized, developed, and maintained on the sustained yield principle, subject to preferences among beneficial uses.
Alaska Statute 16.05.255 is an implementing statute for Alaska's sustained yield clause. In 1994, the Alaska legislature amended AS 16.05.255 to incorporate new principles of intensive management aimed at increasing big game prey populations in areas where the Board determines human consumptive use is preferred.[4] Alaska's intensive management statute requires that the Board adopt regulations "to provide for intensive management programs to restore the abundance or productivity of identified big game prey populations as necessary to achieve human consumptive use goals."[5] The changes to AS 16.05.255 set the stage for the current dispute because the amended statute provides for "control of predation" in areas where the Board determines intensive management is required.[6]
When the legislature adopted the intensive management statute in 1994, it expressed a clear policy that "providing for high levels of harvest for human consumptive use in accordance with the sustained yield principle is the highest and best use of identified big game prey populations in most areas of the state."[7] In 1998 AS 16.05.255 was again amended, this time, to include an explicit requirement that intensive game management be "consistent with sustained yield," which the legislature defined as "the achievement and maintenance in perpetuity of the ability to support a high level of human harvest of game, subject to preferences among beneficial uses, on an annual or periodic basis."[8]
Until 2006, the Board's general regulatory framework for predator control of wolves and bears was found in 5 AAC 92.110 and .115;[9] specific wolf and bear control plans were set forth in 5 AAC 92.125. Prior to 2006, any regulation adopting a predator control plan, including section .125, was required to address a series of regulatory requirements set forth in sections .110 and .115. One of the regulatory requirements was that the Board consider "sound wildlife management principles based upon sustained yield" for all *693 predator control plans.[10]
In a separate and earlier challenge to the Board's wolf control plans, Judge Sharon Gleason issued an order dated January 17, 2006 invalidating the then-existing predator control plans on the basis that the Board "failed to adequately address the regulatory requirements of 5 AAC 92.110."[11] The Board convened an emergency meeting in response to Judge Gleason's order and adopted interim regulations establishing temporary predator control plans to replace those that had been invalidated. At the next regularly scheduled meeting, held just a few days later, the Board eliminated the internal regulatory requirements in sections .110 and.115, including the express requirement that the Board consider sustained yield principles.
The Board again considered its predator control plans during meetings it held in March and May of 2006. During these meetings, the Board heard considerable testimony from biologists from the Alaska Department of Fish and Game (ADF & G) on the proposed permanent predator control plans. It also received extensive written comments from the public regarding the proposed plans. Ultimately, the Board adopted modified versions of the interim regulations as permanent regulations, although it expanded the coverage of the plans in some areas.
Defenders of Wildlife and The Alaska Wildlife Alliance (collectively "Defenders") challenged the validity of the Board's 2006 predator control plans in a complaint filed in August 2006.[12] In the superior court, Defenders' case focused primarily on alleged violations of Alaska's Administrative Procedure Act and an array of other substantive challenges unrelated to sustained yield. Defenders also claimed that the Board's 2006 predator control plans were invalid because the Board failed to apply principles of sustained yield to wolf and bear populations in predator control areas when it adopted its predator control plans.
Ronald T. West was allowed to intervene in March 2007. His complaint in intervention adopts all of Defenders' claims by reference and raises two additional claims. West's Count X alleges that "defendants have violated their constitutional duty to manage game populations for the benefit of all citizens" on the grounds that they "did not conduct accurate, scientific studies of prey and predator populations." West's Count XI alleges that the Board's predator control plans "are unconstitutional ... in that [they] do not manage predators for sustained yield." West's Count XI substantially overlaps with Defenders' Count VIII.[13]
The parties filed cross-motions for summary judgment and in March of 2008 the superior court issued a comprehensive written order addressing all of the parties' outstanding claims. The court dismissed the Administrative Procedure Act claims and most of the other substantive claims unrelated to sustained yield[14] but ruled that article VIII, section 4 of Alaska's Constitution applies to predators, including wolves and bears. The court concluded that the Board's 2006 predator control plans did not violate Alaska's sustained yield clause because "the management of wildlife resources may constitutionally include a selection between predator and prey populations."[15] The court did not examine whether the Board applied the statutory principle of sustained yield when it adopted its plans because it concluded that *694 the sustained yield principle in Alaska's intensive management statute does not apply to predators.
Although the superior court agreed with West that Alaska's constitutional sustained yield clause applies to predators, it did not agree that the Board's 2006 plans violate this constitutional provision.[16] The court also denied West's claim that the Board's alleged failure to obtain accurate scientific studies of prey and predator populations violate its constitutional duty.[17] West moved for attorney's fees under Civil Rule 82 and AS 09.60.010 arguing that he prevailed as a public interest litigant on the main issue in the case because the court agreed that Alaska's sustained yield clause applies to predators. The superior court denied West's motion for fees and also denied West's and Defenders' motions for reconsideration of its summary judgment ruling.
Defenders and West appeal the superior court's decision that the Board's predator control plans do not violate Alaska's sustained yield clause. Defenders also appeal the superior court's decision that the statutory principle of sustained yield in Alaska's intensive game management statute does not apply to predators, and West appeals the superior court's denial of his motion for attorney's fees. Because West did not appeal his claim that the Board failed to conduct accurate, scientific studies of prey and predator populations, that issue is not before us on appeal.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo.[18] Summary judgment is proper if there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law.[19] "In reviewing a summary judgment motion, we draw all reasonable inferences in favor of the nonmoving party."[20]
The interpretation of a statute or constitutional provision is a question of law to which we apply our independent judgment.[21] "We interpret the constitution and Alaska law according to reason, practicality, and common sense, taking into account the plain meaning and purpose of the law as well as the intent of the drafters."[22]
We review an agency's application of law to a particular set of facts for reasonableness.[23] Under this standard, we "merely determine whether the agency's determination is supported by the facts and is reasonably based in law."[24] We do not substitute our judgment for that of the agency when the agency's decision is based on its expertise.[25] We presume that regulations are valid and we place the burden of proving otherwise on the challenging party.[26]
Awards of attorney's fees are reviewed for abuse of discretion.[27] Such abuse exists if the award is "arbitrary, capricious, manifestly unreasonable, or improperly motivated."[28]
*695 IV. DISCUSSION
Defenders and West argue that the constitutional and statutory principles of sustained yield apply to predators and that the Board did not apply sustained yield when it adopted its 2006 predator control plans. The State counters that it has no constitutional or statutory duty to apply sustained yield to wolves and bears in predator control areas, but that it nonetheless did so. We first consider whether Alaska's sustained yield clause and intensive management statute require that the Board apply principles of sustained yield when it adopts predator control plans. Because we conclude that the Board is bound by both a constitutional and statutory duty to do so, we next consider whether Defenders and West have met their burden of demonstrating that the Board's 2006 predator control plans are invalid under Alaska's sustained yield clause and intensive management statute. Ultimately, we uphold the 2006 plans because Defenders and West failed to meet this burden.
A. The Sustained Yield Clause Applies To Predator Control.
The superior court concluded that Alaska's sustained yield clause applies to predators, including bears and wolves, but that "the management of wildlife resources may constitutionally include a selection between predator and prey populations." We apply our independent judgment to questions of constitutional interpretation and interpret Alaska's constitution "according to reason, practicality, and common sense, taking into account the plain meaning and purpose of the law as well as the intent of the drafters."[29]
1. The sustained yield clause does not distinguish between predator and prey populations.
When we interpret the Alaska Constitution, "[u]nless the context suggests otherwise, words are to be given their natural, obvious[,] and ordinary meaning."[30] The text of Alaska's sustained yield clause provides that "[f]ish, forests, wildlife, grasslands, and all other replenishable resources belonging to the State shall be utilized, developed, and maintained on the sustained yield principle."[31] According to a plain text reading of this clause, the sustained yield principle applies to all "wildlife." The natural, obvious, and ordinary meaning of the term "wildlife" suggests that the drafters of our constitution intended a broad application of the sustained yield principle encompassing all wild animals, including wolves and bears.
The definition of "sustained yield principle" provided to the constitutional delegates by the Resources Committee of the Constitutional Convention is also helpful to our inquiry:
As to forests, timber volume, rate of growth, and acreage of timber type can be determined with some degree of accuracy. For fish, for wildlife, and for some other replenishable resources such as huckleberries, as an example, it is difficult or even impossible to measure accurately the factors by which a calculated sustained yield could be determined. Yet the term "sustained yield principle" is used in connection with management of such resources. When so used it denotes conscious application insofar as practicable of principles of management intended to sustain the yield of the resource being managed. That broad meaning is the meaning of the term as used in the Article.[[32]]
This explanation explicitly states that the term "sustained yield" as used in Alaska's constitution has a "broad meaning." In addition, the statement that the sustained yield principle is used in connection with the management of fish, wildlifeand even huckleberriessuggests a broad application of this principle.
*696 After the drafters of Alaska's constitution finished their work, the constitution was ratified by the voters. We have stated that "in construing provisions of the Alaska Constitution, [] the court must look to the meaning that the voters would have placed on its provisions."[33] "[A]bsent some signs that [a] term has acquired a peculiar meaning by statutory definition or judicial construction, we defer to the meaning the people themselves probably placed on the provision."[34] Our inquiry here is aided by the "Report to the People of Alaska" prepared by the Alaska Constitutional Convention delegates in the period leading up to the ratification vote. This report informed the voters that:
The [natural resources] article's primary purpose is to balance maximum use of natural resources with their continued availability to future generations. In keeping with that purpose, all replenishable resources are to be administered, insofar as practicable, on the sustained yield principle. This includes fish, forests, wildlife and grasslands, among others.[[35]]
The description in the Report to the People of Alaska, like the plain meaning of the sustained yield clause itself, does not suggest any distinction between predator and prey for purposes of applying sustained yield.
We find nothing in the plain language of the sustained yield clause suggesting that a distinction should be drawn between predator and prey populations for purposes of applying the sustained yield principle, and there is no such distinction in the descriptions of "sustained yield" supplied by the delegates who drafted the constitution or to the voters who ratified it.[36] We have acknowledged that "the framers of Alaska's constitution intended the sustained yield clause to play a meaningful role in resource management,"[37] and we hold today that the sustained yield clause in Alaska's constitution applies to both predator and prey populations, including populations of wolves and bears.
2. The sustained yield clause permits the State to establish preferences among beneficial uses.
Having held that the sustained yield clause applies to predator populations, we must also consider whether the sustained yield clause permits the Board to give preference to populations of moose and caribou over populations of wolves and bears through the use of intensive management practices.
The starting point of this analysis is again the text of the sustained yield clause itself, which provides "wildlife ... shall be utilized, developed, and maintained on the sustained yield principle, subject to preferences among beneficial uses."[38] The qualifier that makes sustained yield "subject to preferences among beneficial uses" suggests that the legislature and the Board have some discretion to establish management priorities for Alaska's wildlife. Such a construction is consistent with the constitutional history of the sustained yield clause. As we noted in Native Village of Elim v. State, "the primary emphasis of the framers' discussions and the glossary's definition of sustained yield is on the flexibility of the sustained yield requirement and its status as a guiding principle rather than a concrete, predefined process."[39]*697 This is reflected in the Report to the People of Alaska distributed before ratification of Alaska's constitution, which explains that "all replenishable resources are to be administered, insofar as practicable, on the sustained yield principle."[40] The glossary definition of "sustained yield" provided by the Resources Committee of the Constitutional Convention contains similar language: "[the term sustained yield principle] denotes conscious application insofar as practicable of principles of management intended to sustain the yield of the resource being managed."[41]
Based upon the text and constitutional history of the sustained yield clause, the State argues that "it allows for some uses, and therefore some resources, to be preferred over others." And Defenders recognize that "[w]hile [the sustained yield clause] requires that all wildlife, including predators, be managed for sustained yield, that does not mean the sustained yield principle precludes `predator control' in appropriate circumstances." We agree with both these statements and affirm the superior court's ruling "that the management of wildlife resources may constitutionally include a selection between predator and prey populations."
B. The Statutory Principle Of Sustained Yield In Alaska's Intensive Management Statute Applies To The Board's Management Of Predator Populations.
Consistent with the State's position, the superior court found it "unambiguous" that the sustained yield principle in Alaska's intensive management statuteAS 16.05.255 applies only within the context of the Board's management of moose and caribou populations and is inapplicable to the Board's management of predator populations. Defenders counter that the statutory principle of sustained yield, like the constitutional principle, does not distinguish between predator and prey populations. "The interpretation of a statute is a question of law to which we apply our independent judgment"; we interpret statutes "according to reason, practicality, and common sense, considering the meaning of the statute's language, its legislative history, and its purpose."[42]
Alaska's intensive management statute states that "[t]he Board of Game shall adopt regulations to provide for intensive management programs to restore the abundance or productivity of identified big game prey populations as necessary to achieve human consumptive use goals of the board."[43] The statute also provides definitions for key terms. "Intensive management" is defined as "management of an identified big game prey population consistent with sustained yield through active management measures to enhance, extend, and develop the population to maintain high levels or provide for higher levels of human harvest, including control of predation."[44] "Sustained yield" is defined by the statute as "the achievement and maintenance in perpetuity of the ability to support a high level of human harvest of game, subject to preferences among beneficial uses, on an annual or periodic basis."[45]
Substituting the meaning of the defined terms into subsection (e) of the statute produces the following legislative mandate for intensive management:
*698 The Board of Game shall adopt regulations to provide for [management of an identified big game prey population consistent with [the achievement and maintenance in perpetuity of the ability to support a high level of human harvest of game, subject to preferences among beneficial uses]] to restore the abundance or productivity of identified big game prey populations as necessary to achieve human consumptive use goals of the board.[[46]]
From this language it follows that whether or not the statutory principle of sustained yield distinguishes between predator and prey populations depends on the meaning of the word "game." Alaska Statute 16.05.940(19) defines "game" as "any species of bird, reptile, and mammal,"[47] suggesting that intensive management must be consistent with a principle of sustained yield which encompasses all animals, including both predator and prey populations.
The State does not provide an alternative construction based upon the statute's language, but argues that Defenders' construction "turns [the] intensive management law into a nonsensical, unworkable mess" by applying the sustained yield principle to predators. According to the State, application of sustained yield to predators requires that the State simultaneously maximize the populations of predators and their prey. We disagree. The language of this implementing legislation does not result in the absurd results the State warns against because the statutory principle of sustained yield, like its constitutional counterpart, contains the qualifier that sustained yield is "subject to preferences among beneficial uses."[48]
Based upon the text of Alaska's intensive management statute, as well as the principle that a statutory construction that is consistent with constitutional principles is preferred over one that is inconsistent,[49] we hold that the principle of sustained yield set forth in Alaska's intensive management statute applies to predator populations but that the management of wildlife resources may include a selection between predator and prey populations.
C. Defenders And West Failed To Meet Their Burden To Prove That The Board's 2006 Predator Control Plans Violate Principles Of Sustained Yield.
Having held that both the constitutional and statutory principles of sustained yield apply to wolf and bear populations, we now consider the contention that the Board failed to apply principles of sustained yield to its 2006 predator control plans. The superior court ruled that "to the extent that [the State's existing management of the predator populations] was challenged by any Plaintiff" it does "not violate th[e] constitutional mandate" of Alaska's sustained yield clause. The court did not reach the question of whether the Board's 2006 plans are consistent with the statutory principle of sustained yield because it determined the statutory mandate did not apply to predators.[50] Appellant and cross-appellants had the burden of demonstrating the invalidity of the Board's 2006 predator control plans.[51] To survive summary judgment, they were required to establish that a genuine issue of material fact was in dispute.[52]
*699 Defenders acknowledge that the sustained yield principle does not preclude predator control in appropriate circumstances, but Defenders contend that the Board did not consider or apply the sustained yield principle to wolves and bears when it adopted its 2006 predator control plans.[53] Defenders argue that we should decline to infer that the Board applied sustained yield when there is no mention or discussion of applying sustained yield to wolf and bear populations in either the Board's predator control plans or in the administrative record. Defenders also argue that the Board's repeal of the express sustained yield requirements in 5 AAC 92.110 and .115 along with the statement in its bear management policy that "[g]enerally, bear hunting will be conducted on a sustained yield basis, except in areas where a bear predation control program is authorized"[54] demonstrates that the Board chose not to apply sustained yield to wolf and bear populations.
The State argues the Board was not required to apply sustained yield to wolf and bear populations in its predator control plans. Nonetheless, the State maintains that the Board's plans and the supporting administrative record illustrate the conscious application of sustained yield principles, although that term is not used explicitly.
In considering whether the Board actually applied principles of sustained yield when it adopted its 2006 predator control plans, we first examine the language of the plans themselves and observe that the plans do not expressly mention the sustained yield mandate. But the regulation adopting the 2006 plans5 AAC 92.125sets management objectives for the wolf and bear populations in each predator control area, establishes procedures for tracking when predator populations are in danger of falling below the management objectives, and requires that the Board suspend predator control activities and close hunting and trapping seasons when necessary to ensure that minimum population objectives are met.[55] The regulation also sets specific geographic boundaries for predator control areas[56] and includes sunset provisions establishing expiration dates for the Board's authority to engage in predator control.[57]
The regulations also contain numerous statements relating to the continuation and maintenance of wolf and bear populations within predator control areas. For example, the regulations state "it is the intent of this plan to maintain wolves as part of the natural ecosystem within the geographical area described for this plan."[58] In balancing the goal of "substantially reduc[ing] wolf numbers compared to the pre-control level in order to relieve predation pressure on moose and allow for improved recruitment to the moose population" with the goal of "maintain[ing] *700 wolves as part of the natural ecosystem" within the predator control area, the regulation sets a minimum wolf population objective for each plan in order to "ensure that wolves persist within the plan area."[59] The predator control regulation also states that "if wolf predation control efforts continue and the wolf population is reduced according to the wolf population and harvest objectives, the wolf population will be maintained at [the control population objective] for several years, but once the moose population increases and wolf control efforts are discontinued, the wolf population will increase in response to the increased prey base."[60] Even where the regulation sets an objective of reducing black and brown bear populations to "the lowest level possible" within the bear control area in GMU 19(D)-East, the regulation states that "because the [bear control area] is a relatively small geographic area, removing black [and brown] bears from within it will have only a minor effect on the black [and brown] bear population[s] in Unit 19(D)-East overall."[61]
The predator control regulation also provides for continued harvest of wolves and bears for human consumption as an integral component of the predator control plans, setting "annual harvest objective[s]"[62] for wolves and bears in the predator control areas and acknowledging that "some hunters and trappers will continue to pursue wolves. . . regardless of same-day-airborne wolf control efforts."[63]
We also find it significant that while the Board eliminated the regulatory requirements set forth in sections .110 and .115 including the express requirement that it consider sustained yieldit appears that the Board nonetheless adopted its 2006 predator control plans to be consistent with these requirements. The subsection headings in the Board's predator control plans closely mirror the requirements of subsections.110(b) and .115(b), and the content of the predator control plans reflects the substantive requirements of subsections .110(d) and.115(c).[64]
A review of the administrative record demonstrates that the Board considered a great deal of information about how the long-term viability and sustainability of wolf and bear populations would be impacted by predator control efforts. Most significantly with respect to wolf control, the Board heard testimony from ADF & G biologists that wolf populations would recover to, or even exceed, pre-control levels within three to five years after wolf control ends.[65] And while testimony relating to bears suggested that bear recovery would take longer given the lower reproductive and immigration rates of bears, ADF & G biologists did not suggest that the long-term viability or sustainability of bear populations would be put at risk by the 2006 bear control plans.
Based on our review of the record, we are unpersuaded by Defenders' argument that the Board failed to apply sustained yield altogether. Failing to show that the Board *701 did not apply sustained yield at all, Defenders' burden was to show that the Board's application of sustained yield to predator populations lacked a reasonable basis, was arbitrary or capricious, or failed to consider important factors[66] by showing, for example, that the Board used incorrect estimates of populations, or because harvest levels were set too high. Defenders did not contend that the Board acted arbitrarily in applying sustained yield principles to its 2006 plans; it focused entirely on its claim that the Board failed to apply the sustained yield principles at all. Defenders did express concern over whether the Board's minimum population objectives "will be large enough to permit a yield, sustained or otherwise, now or in the future" but Defenders did not elaborate or support this concern with evidence. Because the Board is entitled to deference in areas where it has special expertise, such as application of sustained yield, Defenders bore a significant burden in demonstrating that it acted in an arbitrary manner. On this record, we must conclude that Defenders failed to meet their burden, and that the superior court properly declined to vacate the 2006 predator control regulations on those grounds.
In reaching this decision, we expressly reject the Board's position that the application of sustained yield to wolf and bear populations in predator control areas is discretionary and based only on its policy view that these "highly valued resources" should be "maintained as healthy and necessary components of our ecosystems," rather than any constitutional or statutory mandate.[67] It is the Board's constitutional and statutory duty to apply principles of sustained yield when it adopts predator control plans; this is not a policy question subject to Board discretion.
D. The Superior Court Did Not Err In Denying West Attorney's Fees.
West argues that the superior court erred in denying him attorney's fees as a prevailing party under Alaska Civil Rule 82 and AS 09.60.010. The superior court ruled that although West prevailed on his argument that the constitutional principle of sustained yield applies to predators, he failed on the main issue he pursued: invalidating the 2006 predator control regulations. As such, the superior court concluded that he was not a prevailing party entitled to attorney's fees. Our court reviews awards of attorney's fees for abuse of discretion.[68] Abuse of discretion exists if the award is "arbitrary, capricious, manifestly unreasonable, or improperly motivated."[69]
West did not prevail on the main issue in this litigation. His claim was that the Board's predator control regulations do not comply with Alaska's sustained yield clause.[70] He did not "successfully prosecute[] or defend[] against the action," nor was he "successful on the `main issue' of the action" and he was not the party "in whose favor the decision or verdict [was] rendered and the judgment entered."[71] We recognize the care West took to research the constitutional question raised in this case, but the "main issue" was whether the adoption of a particular regulation passed constitutional muster; *702 this litigation was not an untethered inquiry into constitutional meaning. The superior court correctly entered summary judgment in the State's favor on West's Count XI. We affirm the superior court's decision denying West attorney's fees.
V. CONCLUSION
We AFFIRM the superior court's ruling regarding the applicability of Alaska's sustained yield clause to predator populations but REVERSE its ruling that AS 16.05.255 does not apply to predator populations. We AFFIRM the court's ruling that Defenders and West failed to meet their burden to show that the Board's 2006 predator control plans violate Alaska's sustained yield clause, and hold that Defenders and West also failed to show that the plans violate the sustained yield provisions of Alaska's intensive management statute. We AFFIRM the superior court's order denying West's motion for attorney's fees.
WINFREE, Justice, not participating.
NOTES
[1] Some anthropologists believe that, long before European contact, indigenous people in Alaska sought to reduce predator populations, particularly wolf populations, in order to increase their harvest of prey species. See COMM. ON MGMT. OF WOLF AND BEAR POPULATIONS IN ALASKA, NATIONAL RESEARCH COUNCIL, WOLVES, BEARS, AND THEIR PREY IN ALASKA: BIOLOGICAL AND SOCIAL CHALLENGES IN WILD LIFE MANAGEMENT 27-28 (1997).
[2] A 1996 public initiative banned aerial and land-and-shoot wolf hunting except by state employees when a biological emergency was declared in a specific geographical area. In 1999 the legislature expanded the grounds for authorizing a wolf control program, including to increase prey populations. See AS 16.05.783. The following year, the legislature passed a statute that would have allowed the general public to engage in land-and-shoot wolf hunting in areas where a wolf control program was authorized, but the statute was overturned by public referendum several months later. A 2008 public initiative sought to reimpose strict limits on authorizing predator control programs, but it was defeated.
[3] GERALD A. MCBEATH, THE ALASKA STATE CONSTITUTION: A REFERENCE GUIDE 146 (1997); Bret Adams et al., Environmental and Natural Resources Provisions in State Constitutions, 22 J. LAND RESOURCES & ENVTL. L. 73, 255-263 (2002) (listing state constitutional provisions relating to the environment and natural resources).
[4] AS 16.05.255(e)(1), as enacted by Ch. 13, § 2, SLA 1994. Before the Board adopts an intensive management program in a given area, it must first determine that reductions in the productivity of big game prey populations may result in reductions in human harvest and that an increase in productivity is feasible using intensive management. AS 16.05.255(e)(2), (3).
[5] AS 16.05.255(e).
[6] AS 16.05.255(k)(4), as enacted by Ch. 13, § 2, SLA 1994.
[7] Ch. 13, § 1, SLA 1994 (emphasis added).
[8] AS 16.05.255(k), as amended by Ch. 76, §§ 4, 5, SLA 1998.
[9] 5 AAC 92.110 related to control of predation by wolves, .115 related to control of predation by bears.
[10] 5 AAC 92.110(d)(3) (repealed 3/10/2006, Register 177); 5 AAC 92.115(c)(3) (repealed 3/10/2006, Register 177) (emphasis added).
[11] Friends of Animals v. State, Dep't of Fish & Game, 3AN-03-13489 CI (Alaska Super., January 17, 2006). Friends of Animals did not involve the issue of sustained yield.
[12] Sierra Club was also a plaintiff in this action below, but does not participate on appeal.
[13] Friends of Animals, Inc. and Tom Classen separately filed suit in November 2006. Most of their claims failed to survive summary judgment, but they do not participate on appeal.
[14] The superior court did rule that "to the extent 5 AAC 92.125 authorizes airborne or same day airborne shooting of wolves in subunits 16(A), 20(A)-(D), and 25(C), that authorization is invalid," based on the Board's failure to make the requisite findings under AS 16.05.783(a)(1).
[15] In reaching this decision, the superior court noted that it was "making no decision concerning the actual conduct of these or any other predator control programs."
[16] The superior court concluded that the plans do not violate the constitutional mandate of the sustained yield clause "to the extent that the [State's existing management of the predator populations] was challenged by any Plaintiff."
[17] West does not appeal the superior court's dismissal of this claim.
[18] Parson v. State, Dep't of Revenue, Alaska Hous. Fin. Corp., 189 P.3d 1032, 1036 (Alaska 2008).
[19] Id.; McCormick v. Reliance Ins. Co., 46 P.3d 1009, 1011 (Alaska 2002).
[20] Parson, 189 P.3d at 1036.
[21] Id.
[22] Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999).
[23] Koyukuk River Basin Moose Co-Mgmt. Team v. Bd. of Game, 76 P.3d 383, 386 (Alaska 2003) (citing Native Vill. of Elim, 990 P.2d at 5).
[24] Id.
[25] Id.
[26] Lakosh v. Alaska Dep't. of Envtl. Conservation, 49 P.3d 1111, 1114 (Alaska 2002).
[27] Rhodes v. Erion, 189 P.3d 1051, 1053 (Alaska 2008).
[28] Id.
[29] Parson v. State, Dep't. of Revenue, Alaska Hous. Fin. Corp., 189 P.3d 1032, 1036 (Alaska 2008); Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999).
[30] Hammond v. Hoffbeck, 627 P.2d 1052, 1056 n. 7 (Alaska 1981).
[31] Alaska Const. art. VIII, § 4 (emphasis added).
[32] Resources Committee, Alaska Constitutional Convention, Terms (1955).
[33] Div. of Elections v. Johnstone, 669 P.2d 537, 539 (Alaska 1983) (internal citations and quotations omitted).
[34] Hickel v. Halford, 872 P.2d 171, 177 (Alaska 1994).
[35] THE ALASKA CONSTITUTIONAL CONVENTION, PROPOSED CONSTITUTION FOR THE STATE OF ALASKA: A REPORT TO THE PEOPLE OF ALASKA (1956).
[36] The State does not contest the plain meaning of the sustained yield clause, and instead highlights the statement of Delegate Burke Riley, Secretary of the Constitutional Convention's Resources Committee, that "predators would not be maintained on a sustained yield basis." 4 Proceedings of the Alaska Constitutional Convention 2451 (January 17, 1956). But "individual comments from delegates do not necessarily indicate constitutional intent," Glover v. State, Dep't. of Transp., 175 P.3d 1240, 1248 (Alaska 2008), and we conclude that the text of the sustained yield clause itself, along with the descriptions provided to the voters and the delegates, contradicts the view presented by Secretary Riley.
[37] Native Vill. of Elim v. State, 990 P.2d 1, 7 (Alaska 1999).
[38] Alaska Const. art. VIII, § 4 (emphasis added).
[39] 990 P.2d at 7-8.
[40] THE ALASKA CONSTITUTIONAL CONVENTION, PROPOSED CONSTITUTION FOR THE STATE OF ALASKA: A REPORT TO THE PEOPLE OF ALASKA (1956) (emphasis added).
[41] Resources Committee, Alaska Constitutional Convention, Terms (1955) (emphasis added).
[42] Parson v. State, Dep't. of Revenue, Alaska Hous. Fin. Corp., 189 P.3d 1032, 1036 (Alaska 2008).
[43] AS 16.05.255(e) (emphasis added). The superior court focused its analysis on subsection (g) of the statute, which requires that the Board establish population and harvest goals and seasons for intensive management, rather than subsection (e) of the statute, which establishes the framework under which the Board shall adopt regulations to establish intensive management programs.
[44] AS 16.05.255(k)(4) (emphasis added).
[45] AS 16.05.255(k)(5) (emphasis added). The superior court's order incorrectly states that the term "sustained yield" is not defined.
[46] AS 16.05.255(e), (k)(4), (k)(5) (emphasis added).
[47] This definition applies to AS 16.05-16.40, including AS 16.05.255.
[48] AS 16.05.255(k)(5).
[49] Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 192 (Alaska 2007) ("[C]ourts should if possible construe statutes so as to avoid the danger of unconstitutionality.") (internal citations and quotations omitted).
[50] The question of whether the Board adopted its predator control plans consistent with the statutory principle of sustained yield was argued by the parties below, and neither party suggests that the constitutional and statutory principles of sustained yield demand separate analyses. We therefore examine this question ourselves rather than remanding for further proceedings.
[51] Koyukuk River Basin Moose Co-Mgmt. Team v. Bd. of Game, 76 P.3d 383, 389 n. 27 (Alaska 2003).
[52] McCormick v. Reliance Ins. Co., 46 P.3d 1009, 1011 (Alaska 2002).
[53] We focus on Defenders' arguments here because, on appeal, West primarily focuses his argument on the propriety of the superior court even addressing the issue of whether the Board's plans were adopted in accordance with the sustained yield clause. To the extent the superior court addressed this issue, we conclude that it acted properly.
[54] Board of Game Bear Conservation and Management Policy, Findings of the Alaska Board of Game 2004-147-BOG, at 4 (March 8, 2004).
[55] For example, 5 AAC 92.125(c)(6) provides that with respect to the predator control area in Game Management Unit (GMU) 13, "the commissioner will suspend wolf control activities when (i) wolf inventories or accumulated information from permittees indicate the need to avoid reducing wolf numbers below the management objective of 135 wolves specified in this subsection." It also provides that "the commissioner will annually close wolf hunting and trapping seasons, as appropriate to ensure that the minimum wolf population objective is met." This regulation is based upon testimony presented by the field biologists covering the GMUs for each of the predator control areas, as well as the Board's prior findings authorizing predator control in these areas.
[56] For example, 5 AAC 92.125(c) sets forth the geographic boundaries of the predator control area for GMU 13.
[57] For example, 5 AAC 92.125(c)(6)(B)(ii) provides that "wolf control activities will be terminated. . . (ii) upon expiration of the period during which the commissioner is authorized to reduce predator numbers in the predator control plan area." For GMU 13, for example, the commissioner is authorized to engage in predator control efforts "for up to five years. . . ." 5 AAC 92.125(c)(5)(A).
[58] 5 AAC 92.125(c)(1)(C)(i).
[59] 5 AAC 92.125(c)(2)(B).
[60] 5 AAC 92.125(e)(1)(C)(vi).
[61] 5 AAC 92.125(f)(3)(E) and (F).
[62] 5 AAC 92.125(c)(1)(C)(ix).
[63] 5 AAC 92.125(c)(1)(D)(iii).
[64] It appears the reason the Board's predator control plans reflect the requirements of 5 AAC 92.110 and .115, even though these requirements were later repealed, is that the permanent regulation was based largely upon the interim regulation adopted when the requirements were still in effect. Judge Gleason issued her ruling that the Board's previous predator control plans were invalid because they failed to address the requirements of .110 on January 17, 2006. The Board adopted its interim regulation during an emergency teleconference meeting on January 25, 2006. The Board did not repeal .110(b) and (d) and .115(b) and (c) until the Board's regularly scheduled meeting on January 29, 2006.
[65] ADF & G Wildlife Research Biologist Mark McNay gave a lengthy presentation to the Board during its March 12, 2006 meeting on this topic, and he reported that in studies reviewed by the National Research Council, "wolf populations rebounded to 88 to 112 percent of the precontrolled population size in three to five years." He also highlighted that the National Research Council concluded that "[n]o available data suggests that the killing of wolves by humans has adversely affected the long-term social organization, reproductive rates, or population dynamics of the species."
[66] Trustees for Alaska v. State, Dep't of Natural Res., 795 P.2d 805, 809 (Alaska 1990) (stating that "determinations involv[ing] complex subject matter or fundamental policy formulations" are reviewed "only to the extent necessary to ascertain whether the decision has a reasonable basis,. . . was not arbitrary, capricious, or prompted by corruption," and did not "fail[] to consider an important factor in making its decision.") (internal quotations omitted).
[67] The State further comments in its brief that despite its position "that predators need not be maintained on a sustained yield basis, the Department and Board, exercising their discretion to manage for beneficial uses of all wildlife, have always maintained that Alaska's wolf and bear populations should be managed in accordance with the sustained yield principle."
[68] Rhodes v. Erion, 189 P.3d 1051, 1053 (Alaska 2008).
[69] Id.
[70] West claims that in his cross-motion for summary judgment he only argued the constitutional issue. While this may be the case, the State sought summary judgment on all of West's claims, and the superior court ruled in its favor.
[71] Day v. Moore, 771 P.2d 436, 437 (Alaska 1989).
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951 F.2d 435
Ronald HAZZARD, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 91-1338.
United States Court of Appeals,First Circuit.
Heard Nov. 7, 1991.Decided Dec. 18, 1991.
Jeremiah Friedman with whom Harvey Kaplan and Kaplan, O'Sullivan & Friedman, Boston, Mass., were on brief, for petitioner.
Charles E. Pazar, Atty., Office of Immigration Litigation, with whom Stuart M. Gerson, Asst. Atty. Gen., and Robert Kendall, Jr., Asst. Director, Washington, D.C., were on brief, for respondent.
Before BREYER, Chief Judge, SELYA and CYR, Circuit Judges.
CYR, Circuit Judge.
1
Petitioner Ronald Hazzard, also known as John Hazan, seeks review of a final order of the Board of Immigration Appeals ("BIA") affirming an immigration judge's denial of petitioner's application for discretionary relief from deportation under section 212(c) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1182(c).1 Upon rehearing, we affirm.2
2
* BACKGROUND
3
Petitioner came to the United States in 1969 at the age of twelve and is a lawful permanent resident. Since entering the United States, petitioner has been convicted of three state drug charges.3 In 1984, he pled guilty to a federal cocaine distribution charge. Petitioner received suspended sentences on each state charge, and a two-year prison term, followed by a three-year special parole term, on the federal drug charge.
4
Following the federal conviction, the Immigration and Naturalization Service ("INS") ordered petitioner to show cause why he should not be deported pursuant to 8 U.S.C. § 1251(a)(11), which empowers the Attorney General to deport an alien convicted of a controlled substance offense. Petitioner conceded deportability but requested discretionary relief pursuant to 8 U.S.C. § 1182(c). After several hearings, at which petitioner and his mother and father testified, the immigration judge reviewed the evidence and found several factors favoring relief: extended residence in the United States; extensive family ties in the United States, with parents, several siblings and a natural child who is a United States citizen; numerous favorable character references; and a worthy employment history. The immigration judge found, however, that these positive factors were outweighed by the "adverse factors of respondent's involvement [in] distribution of narcotics." The immigration judge further found that petitioner's "recidivist behavior" indicated an absence of rehabilitation, and concluded that the application for discretionary relief from deportation should be denied.
5
Petitioner appealed to the BIA, claiming that the immigration judge had assigned insufficient weight to the favorable factors and requesting the BIA to consider petitioner's changed circumstances following the immigration judge's decision, including the birth of two children (also U.S. citizens), the successful completion of the special parole term, the absence of any new criminal charges, and petitioner's establishment of a house painting business. Based on its review of all the evidence, including the new evidence adduced by petitioner, the BIA found that
6
the adverse factors in this case, i.e., the respondent's criminal convictions for distribution of controlled substances are weighty evidence of the respondent's undesirability as a permanent resident. The pernicious effects of drugs on American society are well documented. Therefore, we cannot state that the immigration judge's decision to deny 212(c) relief in the exercise of discretion was error, as a matter of law.
II
DISCUSSION
7
At the discretion of the Attorney General, section 212(c) of the Act permits a waiver of excludability to otherwise inadmissible aliens. 8 U.S.C. § 1182(c). The discretionary authority vested in the Attorney General is delegated to the BIA, which determines its exercise by "balanc[ing] the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf." Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978).
8
The petitioner bears the burden of demonstrating that he merits a discretionary waiver of excludability. Id. at 583. Ordinarily, a petitioner with a criminal record is required to demonstrate rehabilitation in order to qualify for discretionary relief, id. at 588, although rehabilitation is not an absolute prerequisite to relief, Matter of Edwards, Interim Decision 3134 (BIA 1990). Moreover, a petitioner who stands convicted of serious drug offenses, especially drug trafficking offenses, must demonstrate "unusual or outstanding countervailing equities," Marin, 16 I. & N. Dec. at 586 n. 4. Yet even "such a showing does not compel" a waiver of excludability. Matter of Buscemi, 19 I. & N. Dec. 628, 634 (BIA 1988). Due to its discretionary nature, we consider only whether the BIA's denial of a waiver of excludability was "arbitrary, capricious or an abuse of discretion." McLean v. INS, 901 F.2d 204, 205 (1st Cir.1990). "The denial will be upheld unless it was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Id., quoting Williams v. INS, 773 F.2d 8, 9 (1st Cir.1985).
9
Petitioner presents three claims: (1) the BIA improperly denied a waiver solely on the basis of petitioner's drug convictions and thereby deviated from the intent of Congress; (2) the BIA abused its discretion by inexplicably departing from established policy; and (3) the BIA did not conduct proper review of the decision of the immigration judge.
10
A. "Outstanding Equities"
11
The BIA determination that the "outstanding equities" demonstrated by petitioner were insufficient to overcome his four drug convictions did not constitute an abuse of discretion. Neither the BIA, Matter of Buscemi, 19 I. & N. Dec. at 635, nor this court, see Joseph, 909 F.2d at 607 (denial of § 212(c) relief held proper despite BIA finding of "outstanding equities"), has ever held that a finding of "outstanding equities" compels allowance of a waiver of excludability. Rather, the BIA is required to evaluate each individual petitioner's desirability as a permanent resident and to provide a rational explanation of its decision. In the present case, following a thorough review of the record, the BIA found that petitioner did not merit discretionary relief, despite the "outstanding equities," due to his numerous drug convictions. As there was no abuse of discretion in the BIA's balancing of the favorable and unfavorable factors relating to the petitioner, we decline to interpose the more lenient disposition sought by petitioner. See id. at 607.
12
Petitioner contends, nonetheless, that a denial of discretionary relief, due solely to his drug convictions, distorts the intent of Congress. Although petitioner concedes that "the immigration laws clearly reflect the strong Congressional policy against lenient treatment of drug trafficking offenders," Blackwood v. INS, 803 F.2d 1165, 1167 (11th Cir.1986); Ayala-Chavez v. INS, 944 F.2d 638, 641 (9th Cir.1991), he contends that Congress nevertheless intended that otherwise inadmissible aliens who have been convicted of drug offenses remain eligible for a waiver of excludability. According to petitioner, the BIA effectively precludes drug offenders from a meaningful opportunity to obtain discretionary relief. Petitioner insists that he demonstrated all that could reasonably be required to merit discretionary relief, since the BIA found that he possessed "outstanding equities" and, according to petitioner, implicitly found that he was rehabilitated. We must disagree.
13
First, contrary to petitioner's assertion, the BIA made no rehabilitation finding, either explicit or implicit. The BIA did state that "respondent testified that he is sincerely remorseful for his past criminal behavior and maintains that he is completely rehabilitated." But the BIA made no determination that rehabilitation had taken place, nor did it take issue with the contrary finding explicitly made by the immigration judge--that petitioner had not demonstrated rehabilitation. Second, the BIA's determination that the "outstanding equities" were insufficient to overcome petitioner's four drug convictions was in no sense tantamount to a disentitlement of drug offenders generally, or petitioner in particular, to a meaningful opportunity to seek discretionary relief. The BIA is required to make a case-by-case determination. See, e.g., Marin, 16 I. & N. Dec. at 584 ("it has been held that each case must be judged on its own merits"). Drug offenders demonstrating either more outstanding equities or less serious criminal records might well be accorded discretionary relief. The BIA did no more than determine that relief was not warranted in petitioner's case. We find no distortion of congressional intent.
B. Departure from BIA Policies
14
Petitioner alleges abuse of discretion based on an inexplicable departure from established BIA policies, see McLean, 901 F.2d at 205; Williams, 773 F.2d at 9, relating to BIA procedures for considering discretionary relief for drug offenders. Petitioner perceives two recent policy shifts: one relating to the manner in which the BIA evaluates the applications of petitioners who are required to demonstrate outstanding equities; and a second policy relating to the demonstration of rehabilitation. Since both of the alleged shifts are seen as emanating from the same decision, we discuss them together.
15
Petitioner argues that the recent BIA decision in Matter of Edwards, Int.Dec. 3134, modifies BIA procedure in cases like the present. The BIA made clear in Edwards that the BIA is required to conduct a "full examination of an alien's equities" in all cases, including those involving drug offenders. Id. The Edwards clarification was considered appropriate because the BIA believed that certain language in an earlier case, Buscemi, was potentially "misleading." Id. Buscemi indicated, in effect, that an alien who established unusual or outstanding equities had not thereby demonstrated that discretionary relief was merited, but had merely met the "threshold test for having a favorable exercise of discretion considered in his case." Buscemi, 19 I. & N. Dec. at 634. The Edwards decision expressed concern that Buscemi might have been taken to imply that "a full examination of an alien's equities can somehow be pretermitted." Edwards, Int.Dec. 3134. Edwards disavowed the potentially misleading language and confirmed that a proper merit determination "can only be made after a complete review of the favorable factors in [each] case." Id. Edwards also made clear that certain language in Marin, 16 I. & N. Dec. at 588, and Buscemi, 19 I. & N. Dec. at 635--stating, in effect, that a petitioner with a criminal record "ordinarily" is required to demonstrate rehabilitation before relief can be granted--did not mean that rehabilitation was an "absolute prerequisite" to relief, but a factor to be considered in exercising discretion. Edwards, Int.Dec. 3134.
16
We cannot agree that Edwards represents an inexplicable shift in BIA policy or, for that matter, any significant shift at all. Edwards did no more than clarify ambiguous language in earlier BIA decisions. See Ayala-Chavez, 944 F.2d at 641 n. 3 (Edwards "merely explained Buscemi and made it clear that a full examination of an alien's equities could not be pretermitted"). Nor did the potentially misleading language improperly influence the BIA in its disposition of petitioner's application. The BIA in the instant case considered all relevant factors, balanced the equities and did not treat rehabilitation as an absolute prerequisite to relief.
C. Standard of Review by BIA
17
Finally, petitioner asserts that the BIA deferred to the decision of the immigration judge, whereas it should have conducted de novo review. Although petitioner concedes that the BIA is under no legal obligation to conduct de novo review,4 he argues that de novo review was required because the BIA made findings of fact which differed from those of the immigration judge and because it made supplemental findings based on the new evidence petitioner submitted to the BIA.
18
We discern no contradiction between the findings of the BIA and those of the immigration judge. Petitioner argues that, unlike the immigration judge, the BIA explicitly found that the petitioner possessed "outstanding equities" and implicitly found that petitioner had been rehabilitated. As previously explained, we cannot agree with petitioner's contention that the BIA made an implicit finding of rehabilitation. Moreover, while the immigration judge did not make an explicit finding of "outstanding equities," he found that several factors favored discretionary relief, and there is nothing in the immigration judge's opinion which would suggest that these favorable factors were not "outstanding equities."
19
Finally, while the BIA made supplemental findings, we perceive no sound basis, either in law or reason, for concluding that the BIA was thereby disabled from upholding the immigration judge's decision. The BIA "has full power to determine factual issues in cases before it," 1 C. Gordon & S. Mailman, Immigration Law and Procedure, § 3.05[b] at p. 3-57; see, e.g., Matter of B., 7 I. & N. Dec. 1, 14 (BIA 1956), and may consider new evidence not presented to the immigration judge, Matter of Demosthenes, 13 I. & N. Dec. 345, 346 n. 1 (BIA 1969); Matter of Godfrey, 13 I. & N. Dec. 790, 791 n. 1 (BIA 1971). Moreover, at least in cases where no new ground for deportation is presented, see, e.g., Matter of Rios-Carrillo, 10 I. & N. Dec. 291 (BIA 1963) (remanding after presentation of new ground for deportation), the BIA may uphold an immigration judge's decision even after considering new evidence in favor of petitioner, see, e.g., Matter of Reyes, 16 I. & N. Dec. 475 (BIA 1978) (affirming decision by District Director after considering legal memoranda and affidavit of foreign lawyer). The BIA made an extensive review of the evidence presented before the immigration judge, as well as the newly-presented evidence in favor of petitioner's request for discretionary relief. It then made its determination that the immigration judge's denial of discretionary relief under section 212(c) did not constitute an abuse of discretion. We find no error in this determination. Accordingly, we uphold the deportation decision of the BIA.
20
The petition for review is denied and the deportation order is enforced.
1
We have jurisdiction to review final orders for deportation. See Joseph v. INS, 909 F.2d 605, 606 (1st Cir.1990)
2
We affirmed the BIA order in an earlier, unpublished per curiam decision, see Hazzard v. INS, 940 F.2d 647 (1st Cir.1991) (Table), but thereafter granted rehearing
3
In 1976 petitioner was convicted of conspiracy to distribute marijuana and of possessing marijuana, with intent to distribute. In 1983, he was convicted of possessing marijuana, with intent to distribute
4
The BIA has the discretionary power to conduct de novo review of an immigration judge's decision. See, e.g., Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir.1986); Matter of Vilanova-Gonzalez, 13 I. & N. Dec. 399, 402 (BIA 1969). Of course, the BIA does not invariably do so. See, e.g., Matter of Marinho, 10 I. & N. Dec. 214, 218 (BIA 1963) (BIA acknowledges its authority to make findings of fact and conclusions of law, but decides to defer to factfinder in the first instance); Matter of T----, 7 I. & N. Dec. 417, 419 (BIA 1957) (deferring to findings of special inquiry officer)
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-11-00301-CV
Appellants, Henry L. Zumwalt and H.L. Zumwalt Construction, Inc.
// Cross-Appellant, The City of San Antonio, acting by and through its San Antonio
Water System Board of Trustees
v.
Appellee, The City of San Antonio, acting by and through its San Antonio
Water System Board of Trustees// Cross-Appellees, Henry L. Zumwalt and
H.L. Zumwalt Construction, Inc.
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GV-08-001195, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING
PER CURIAM
O R D E R
This interlocutory appeal challenges the trial court's grant of a plea to the jurisdiction
that dismissed Henry L. Zumwalt and H.L. Zumwalt Construction, Inc.'s third-party claims against
the San Antonio Water System in the underlying suit. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(8) (West 2008). Trial court proceedings were automatically stayed. See id. § 51.014(b).
Certain parties to the underlying litigation, the State of Texas, on behalf of the Texas
Commission on Environmental Quality; Henry L. Zumwalt; H.L. Zumwalt Construction, Inc.; Oil
Mop, L.L.C.; and Williams Fire and Hazard Control, Inc. filed an unopposed joint motion to lift the
stay of trial court proceedings for the limited purpose of allowing the court to enter an agreed final
judgment on a settlement between these parties and to sever them from the underlying suit. See Tex.
R. App. P. 10.1(a), 29.5; Oryx Capital Int'l v. Sage Apartments, 167 S.W.3d 432, 438 (Tex.
App.--San Antonio 2005, no pet.) (noting that party should have requested that appellate court lift
its stay to allow party's filing of nonsuit in trial court).
We grant the joint motion to lift the stay of trial court proceedings for the limited
purpose of allowing the trial court to enter an agreed final judgment and sever the settling parties
from the underlying suit.
It is ordered on November 29, 2011.
Before Chief Justice Jones, Justices Puryear and Goodwin
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"pile_set_name": "FreeLaw"
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529 F.Supp.2d 1342 (2007)
Alexander Milligan SHARP, Plaintiff,
v.
CITY OF PALATKA, et al., Defendants.
No. 3:06-cv-200-J-TEM.
United States District Court, M.D. Florida, Jacksonville Division.
December 20, 2007.
*1343 John L. Key, II, Law Office of John Key, PA., Palatka, FL, for Plaintiff.
Susan S. Erdelyi, Marks Gray, PA, Jacksonville, FL, for Defendants.
ORDER
THOMAS E. MORRIS, United States Magistrate Judge.
This case is before the Court on Defendants' Motion for Partial Summary Judgment *1344 on Count II of Amended Complaint with Supportive Memorandum of Law (Doc. # 67), filed October 5, 2007 by Defendants Gary S. Getchell and James Griffith. Plaintiff filed a response in opposition to the sought relief (Doc. # 71) on October 23, 2007. The parties have each filed supplemental documents, such as affidavits and deposition testimony, in support of their respective positions (see, e.g., Docs. # 65, # 66, # 72). As will be discussed in more detail below, Defendants' Motion for Partial Summary Judgment shall be GRANTED.
STATUS
Plaintiff initiated this action with the filing of a complaint against the City of Palatka on March 2, 2006 (Doc. # 1, Complaint). Plaintiff sought damages and injunctive relief against the City of Palatka for violations of his freedom of speech and right of association under 42 U.S.C. § 1983 and for violations of his rights under the Law Enforcement Officers' Bill of Rights contained in Section 112.532, Florida Statutes. Id. The City of Palatka moved to dismiss Plaintiffs claim asserted under Florida Statutes § 112.532 and that motion was granted on May 16, 2006 (Doc. # 7, Court Order). Thereafter, Plaintiff moved the Court for leave to file an amended complaint to state a claim for malicious prosecution against Palatka Chief of Police, Gary S. Getchell, and Assistant Chief of Police, James Griffith, in their individual capacities (see Doc. # 14, Motion to Amend). The Court ultimately granted the motion to amend (Doc. # 52). Defendants Getchell and Griffith now seek summary judgment in their favor on Count II of the Amended Complaint, which alleges the state common law tort of malicious prosecution against them (Doc. # 67, Defendants' Motion for Partial Summary Judgment on Count II of the Amended Complaint).[1]
FACTS
Plaintiff Sharp was employed with the Palatka Police Department (PPD) from 1991 until March 13, 2004, when Plaintiff tendered his resignation under what he characterized as "extreme duress." (Sharp Aff. [Doc. # 36-2] at ¶ 31). Plaintiff was last employed as a police officer in the capacity of sergeant, serving in the patrol, detective, administrative and other divisions. (Doc. # 53, Amended Complaint). Pertinent to the instant motion is the general knowledge that tensions existed between Plaintiff and non-party Lynn Hoffman, dating back to early 2002. (See Doc. # 24, Defendant's [First] Motion for Summary Judgment, pp. 6-7; Doc. # 67, Defendant's Motion for Partial Summary Judgment, pp. 1-5). These tensions took the form of complaints filed with the PPD concerning Sharp and actual litigation wherein Sharp sued Hoffman. Id.; see also, Sharp Aff. at ¶¶ 10-18. Furthermore, tensions were generally known also to exist between Plaintiff Sharp and Chief of Police Gary S. Getchell dating back to 2001, when Getchell was appointed Chief. (Sharp Aff. at ¶¶ 4-9). However, the events leading up to the instant action occurred primarily between September 2003 and March 2004. (See generally Sharp Dep. [Doc. # 80-6] at 25; Sharp Aff. at ¶¶ 24-30; Cheatham Aff. [Doc. # 26-3]; Getchell Aff. [Doc. # 26-4] at ¶¶ 18-33).
*1345 On September 15, 2003, Plaintiff Sharp received a complaint from Nancy Johnson, the girlfriend of Sharp's outside, business partner Russell Kohuth. Ms. Johnson, who reportedly owned the Palatka Forum at that point in time,[2] claimed someone was repetitively posting messages on the internet bulletin board that rendered the forum unuseable. (Cheatham Aff., Exh. B). Sharp had Cpl. Poole officially take the criminal complaint and forward it to Detective Cheatham for investigation. Id. Upon learning of the Johnson complaint, Assistant Chief James Griffith directed Sharp not to involve himself in the investigation. (Second Griffith Aff. [Doc. 26-13] at ¶ 7). However, on October 25, 2003, Sharp issued a supplemental' PPD report on the Johnson complaint, in which he reported that he and his business partner Russell Kohuth were also victims of the computer crime and in which Sharp implicated Lynn Hoffman as a criminal suspect. (See Cheatham Aff., Exh. B).
On October 24, 2003, Russell Kohuth and attorney John Key met with city officials and accused Lynn Hoffman of committing computer crimes against them. (Bush Aff. [Doc. 26-2] at ¶ 9). City Manager Allen Bush was present at the meeting. Kohuth and Key told the officials that Hoffman was a suspect in a criminal matter under investigation by the PPD and the Florida Department of Law Enforcement (FDLE). Id. After Kohuth and Key left the meeting, Chief Getchell was called in to discuss what transpired during the Kohuth/Key meeting. Id. Chief Getchell asked the officials enough questions to satisfy himself that Plaintiff Sharp may have revealed confidential information about the ongoing criminal investigation by the PPD and FDLE. (Getchell ME at ¶ 18).
On December 19, 2003, Chief Getchell announced an opening in the PPD for the position of lieutenant. The posting for the lieutenant's position required qualified applicants to have, among other things, a college degree (see Doc. # 50, Exh. 16). Sharp aspired to obtain the promotion to lieutenant and submitted his request and resume. (Sharp Aff. at ¶ 25). Chief Getchell stated he was "bewildered" by Plaintiffs application that was submitted on January 8, 2004, because it indicated that Plaintiff had not yet received his college degree and Chief Getchell recalled from earlier paperwork that Plaintiff had received his college degree a few years earlier. Getchell questioned Plaintiff about the discrepancy, who, responded he had some additional tests to take to obtain his degree. (Getchell Aff. at ¶ 20). Plaintiff later submitted paperwork showing he earned his bachelor's degree in December 2003. Id.
Also in mid-December 2003, Plaintiff told some of his fellow officers that he was thinking about running for Sheriff of Putnam County. (Sharp Dep. at 50-51). At least three other officers were present during this conversation, however, Chief Getchell was not among them. (Sharp Dep. at 51). Plaintiff testified that his intention to run for Sheriff was "common knowledge throughout the department." (Sharp Dep. at 110-111).
Plaintiffs candidacy for Sheriff became official on January 7, 2004, when Plaintiff officially qualified to run. (Sharp Aff. ¶ 1). As to his campaign, Plaintiff believed that consolidation of the PPD and the Putnam County Sheriffs Office would provide "one centralized law enforcement agency for the entire county." (Sharp Aff. at ¶ 1). Plaintiff considered this idea "an integral part" of his candidacy. (Sharp Aff. at ¶ 1).
*1346 On March 3,2004, Plaintiff was informed that an internal affairs investigation (hereafter "IA 1106") had been initiated regarding his conduct and possible violations of PPD policies. (Griffith Second Aff. [Doc. 26-13] at ¶ 10 and Exh. C). IA 1106 pertained to the possibility that in October 2003 Plaintiff had revealed information to individuals outside the police department about an ongoing criminal investigation, in violation of city policy. Id., see also Sharp Aff. at ¶ 26. The crux of this investigation initially centered around the confidential information relayed to the city officials by Kohuth and Key about the Johnson computer crime complaint that was being actively investigated at the time of the October 24, 2003 meeting. During the course of his investigation, Assistant Chief Griffith uncovered information concerning the origin of a certain email in the Johnson case that led Griffith to believe Plaintiff Sharp may have falsified information on a police report. (Second Griffith Aff. at ¶ 13; Miller Aff. [Doc. 66-3][3]). Also during the course of inquiry into IA 1106, Griffith discovered information that led to the commencement of two additional internal affairs investigations (hereafter "IA 1107" and "IA1108"). IA 1107 was initiated to determine whether Plaintiff had falsified documents by including inaccurate information about the status and date of his college degree. (Getchell Aff. at ¶ 20 and Exh's. K & P). IA 1108 was opened and centered around whether several months earlier Plaintiff had given false testimony in a deposition in a civil matter concerning Plaintiffs ownership in the Palatka Forum.[4] (Second Griffith Aff. at ¶ 14 and Exh. I). These three internal affairs investigations led to the charging affidavit ultimately filed with the State Attorney's Office concerning Plaintiff Sharp's possible criminal violations. (See generally Willis Aff. [Doc. # 66-2]; Third Griffith Aff. [Doc. # 66-4]). Prior to filing the Form 798, charging affidavit, Defendants Getchell and Griffith met with Assistant State Attorney Robin Strickler to discuss the instances wherein they (the Defendants) believed Plaintiff Alex Sharp had violated the law. (Strickler Dep. [Doc. # 65-2] at 6-11; Griffith Aff. [Doc. # 17-2]; Second Getchell Aff. [Doc. # 66-5]).
Plaintiff claims that in retaliation.for his political speech, the PPD falsely accused him of a crime by Ming a complaint affidavit, falsely accused him of violations of City Police Department policies with initiation of internal investigations lacking in merit, demoted him without cause with the reassignment to the records section of the PPD on March 12, 2004, and ultimately forced him to resign. (See generally, Amended Complaint). Plaintiff also accuses Assistant Chief Griffith and Chief Getchell individually of malicious prosecution in violation of Florida, common law by filing the reportedly false complaint affidavit with the State Attorney's Office. Id. at ¶ 10.
Defendants Getchell and Griffith deny the allegations and seek summary judgment in their favor on Count II of the amended complaint.
STANDARD OF REVIEW
Summary judgment is appropriate only when a court is satisfied "that there is no *1347 genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c) (2007). The Court's task is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden of establishing the absence of a genuine issue is on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Federal Rule of Civil Procedure 56(e) states in relevant part:
When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather its response must ___ by affidavits or as otherwise provided in this rule ___ set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.
Fed.R.Civ.P. 56(e)(2) (2007).
The party moving for summary judgment bears the initial burden of demonstrating to the Court "by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608"(11th Cir.1991). A court "must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson. Plumbing Prods., Inc., 530 U.S. 133, 149-150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (discussing standard for granting judgment as a matter of law, under Fed. R.Civ.P. 50, which mirrors the standard for granting summary judgment under Rule 56); Hinson v. Clinch County Bd. of Educ., 231 F.3d 821, 826-27 (11th Cir. 2000). The Court considers the entire record, but must disregard all evidence favorable to the moving party that the jury is not required to believe. Reeves, 530 U.S. at 151, 120 S.Ct. 2097; Hinson, 231 F.3d at 827.
Once the moving party has met its "burden, the burden shifts to the non-moving party to show that there is a material issue of fact that precludes summary judgment. Clark, 929 F.2d at 608. The non-moving party may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts, through affidavits or other forms of evidence provided for by the rules. Adickes v. SH. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
"[T]he inquiry is whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 252-52, 106 S.Ct. 2505. A genuine issue of material fact exists where there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor. Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.1995); United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir.1991) (en bane). As the Supreme Court has stated, if the record as a whole could not lead a rational fact-finder to fmd for the nonmoving party, there is no genuine issue for trial. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (19865.
MALICIOUS PROSECUTION
Under Florida law, a plaintiff must establish each of six elements to support a claim of malicious prosecution: (1) an original judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause *1348 of the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and, (6) the plaintiff suffered damages as a result of the original proceeding. Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir.2004) (internal citations omitted); Burns v. GCC Beverages, Inc., 502 So.2d 1217, 1218 (Fla.1986). "The failure of a plaintiff to establish any one of these six elements is fatal to a claim of malicious prosecution." Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1355 (Fla.1994).
Plaintiff implicitly asserts the filing of the charging affidavit, Wherein he is accused of official misconduct, with the State Attorney's Office for the Seventh Judicial Circuit constituted the initiation.of an original judicial proceeding. (See Amended Complaint at ¶ 26). Plaintiff unequivocally states Defendants Getchell and Griffith were the legal cause of a criminal case for official misconduct that was brought against Plaintiff in March 2004. (Amended Complaint at ¶¶ 26, 41-43). Plaintiff alleges the State Attorney dismissed the criminal charge filed by Defendants against Plaintiff on July 29, 2004, and the dismissal constituted a bona fide termination of the original proceeding in favor of Plaintiff. (Amended Complaint at ¶ 28). Plaintiff claims there was a complete absence of probable cause for the case, which was brought with legal malice and willful and wanton disregard of Plaintiffs rights (Amended Complaint at ¶¶ 44-51). Thus, Plaintiff declares he has suffered damages, including loss of income, loss of fringe benefits, loss of reputation and career, humiliation, embarrassment, mental and emotional distress and anguish, loss of self-esteem and harm to personal and business reputation. (Amended Complaint at ¶ 52).
In the present action, it. is questionable whether Plaintiff can establish the first element for malicious prosecution. Some question may exist as to whether Plaintiff has established a bona fide termination of the original proceeding in his favor: However, because Plaintiff has failed to establish the fourth `and fifth elements, Defendants are entitled to summary judgment.
The Commencement or continuation of an original judicial proceeding against Plaintiff is the first element that must be established before a malicious prosecution claim will stand under Florida common law. In this case it is undisputed that Defendant Griffith filed a charging affidavit with the State Attorney's Office for the Seventh Judicial Circuit Court. The charging affidavit is a sworn statement setting forth the facts a police officer, or private citizen with direct knowledge, believes establish probable cause that a crime has been committed. (Strickler Dep. at 18-21, 36-37). In this case, Griffith stated there was probable cause to believe Plaintiff Sharp had falsified information in his police report, PPD# 03-05904, and used that false information to justify listing Lynn Hoffman as a criminal suspect in the case. (See Charging Affidavit, Doc. # 66-2 at 4).[5] If proven, the actions of Plaintiff Sharp would constitute official misconduct in violation of Florida Statutes § 838.022(1)(a).[6] The charging *1349 affidavit and the "no irifmnatiim" document were filed on July 29, 2004. (Willis Aff. at ¶ 4). The no information document lets the Clerk's office know that it may close the file because the State Attorney will not prosecute the matter. Id.
Plaintiff posits that the action of filing a charging affidavit, the assignment of a case number and a judge to the case, represent the initiation of an original jriclicial proceeding for purposes of a malicious prosecution action. (Doc. # 71, Plaintiffs Response, pp. 2-4). Plaintiff also points out, correctly the Court notes, that actual prosecution is not an element of the malicious prosecution common law tort. Id.
Defendants counter that "no judicial criminal proceeding ever commenced against [P]laintiff' as the no information document and the charging affidavit were filed together' with the Clerk of Court. (Motion for Partial Summary Judgment, pp. 2, 11-13). Defendants theorize that because no information or indictment were ever issued against Plaintiff Sharp for the offense of official misconduct or for any other charge, and because Sharp was never arrested and never required to appear in court, no judicial proceeding was actually initiated. Defendants point out that Fla. Stat. § 775.15(4)(b) provides that "prosecution on a charge on which the defendant has not previously been arrested or served with a summons is commenced when either an indictment or information is filed . ." (Motion for Partial Summary Judgment at 16). Assistant State Attorney Strickler testified that the filing of an information formally charges an individual who has not been previously arrested. (Strickler Dep. at 18-19). Defendants assert that because Plaintiff Sharp was not formally charged or prosecuted with the claimed offense, no judicial proceeding was ever commenced.
The Court finds both arguments have some merit. The parties have not presented, and the Court has not found, any legal authority directly on point for this issue. On the one hand, the assignment of a case number by a clerk of court and assignment of a judge to that case would arguably, constitute the commencement of a judicial proceeding. Moreover, at some point the complaint becomes a public record, thus indicating the existence of a case. On the other hand, if no formal charge is Med because the State Attorney declines to prosecute, a plea is not entered and no case proceeds. Because an actual prosecution of a crime is not an element of the common law tort of malicious prosecution in Florida, there is some logic to Plaintiffs argument that the first element is satisfied with the assignment of a case number and judge to the case by the. Putnam County Clerk's Office in the Seventh Judicial Circuit. However, since Plaintiffs malicious prosecution claim clearly fails on other grounds, the Court determines it is unnecessary to issue an initial ruling on a matter of state law and therefore declines to make a finding on this, matter.
Under the third element for malicious prosecution Plaintiff must show that the termination of the original proceeding constituted a bona fide termination of that proceeding in his favor. A Florida district court of appeal has held the essential element of a bona fide. termination of the criminal prosecution in favor of the person bringing the malicious prosecution action has been satisfied if there has been an adjudication on the merits favorable to him or if there is a good faith nolle prosequi or declination to prosecute, Gatto v. Publix Supermarket, Inc., 387 So.2d 377, 380-81 (Fla. 3d DCA 1980) (internal citations omitted). In Gatto, the plaintiff had been arrested for shoplifting some paperback *1350 books on the basis of a sworn complaint by the Publix store manager and executed by the arresting officer. Id. at 379-80. Similar to the instant action, the State Attorney in Gatto filed an announcement of no information and Gatto sued for malicious prosecution. Id. at 380. In the Sharp matter, no arrest occurred and the State Attorney declined to prosecute the criminal activity alleged in the charging affidavit with the filing of an Announcement of No Information. (See Willis Aff. Attachments). The Court agrees with the Florida Third District Court of Appeal, that a declination to prosecution establishes a bona fide termination in favor of the plaintiff suing for malicious prosecution.
Although Plaintiff properly alleged there was a complete absence of probable cause for Defendants Getchell and Griffith to file the criminal complaint[7] against Plaintiff (see Amended Complaint at ¶ 44), the undisputed facts reveal probable cause to believe a crime had been committed existed at the time the complaint was filed on March 30, 2004.
When the evidence is in dispute, the want of probable cause is a question of fact for the jury. Kingsland v. City of Miami, 382 F.3d 1220, 1235 (11th Cir. 2004). In this case, however, it is the interpretation of the evidence concerning the malicious prosecution claim that is in dispute, not the actual evidence. Probable cause is purely a matter of law for the court where the material facts are, as here, undisputed. Martinez v. Brink's Inc., No. 04-14609, 2006 WL 551239 at *3 (11th Cir. Mar.8, 2006) (citing Endacott v. Int'l Hospitality Inc., 910 So.2d 915, 922 (Fla. 3d DCA 2005) and Beizer v. Judge, 743 So.2d 134, 137 (Fla. 4th DCA 1999)).[8]
It is undisputed Hoffman and Plaintiff Sharp have a long, contentious history of controversies with each other, which have escalated into formal complaints and litigation at times. (Sharp Aff. at ¶¶ 10-18). It is undisputed that Russell Kohuth and John Key, Plaintiffs present counsel of record, held a meeting with city officials on October 24, 2003 to accuse Lynn Hoffman of computer crimes against them and to advise they would not sue the City of Palatka if Hoffman was fired.[9] (Bush Aff. at ¶ 9). It is undisputed that Kohuth and Key made statements during the October 24th meeting indicating personal knowledge that Hoffman was under investigation by the PPD and FDLE. It is further undisputed that the referenced criminal investigation was ongoing and the involvement of any particular individual was not public knowledge. Plaintiff Sharp's ties to Kohuth and Key were known to Defendants Getchell and Griffith. It has not been disputed that Plaintiff Sharp placed a phone call on his PPD issued cell phone at 11:10 a.m. on October 23, 2003, to a telephone number listed to R.T. Kohuth, believed to be Russell Kohuth. (Second Griffith Aff., Exh. C). The time of the call coincides closely with the Kohuth/Key meeting. Plaintiff Sharp testified he called Russell Kohuth to make a lunch date with him (Sharp Dep. at 153). No one disputes that Plaintiff Sharp filed a supplemental police report on October 25, 2003 in which he named Lynn Hoffman as *1351 a suspect of a computer crime and in which he stated he had traced the originating IP address of a private email between Russell Kohuth and John Key back to the St. Johns River Community College public library computers. (Second Griffith Aff. at Exhs. D-F). In the supplemental report, Sharp did not detail how he traced the IP address to the St. Johns River Community College (SJRCC) library. The general counsel for St. Johns River Community College, Ms. Melissa Miller, Esq., advised Assistant Chief Griffith that the IP address Sharp claimed to trace (169.139.172.2) would not be traceable to any particular computer at the college. (Miller Aff. at ¶ 3). Griffith recalled being advised the referenced IP address was to the firewall at the college and it would be impossible to trace the IP address to a specific location such as the library without directly contacting the IT people at the college and obtaining their logs. (Second Griffith Aff. at ¶ 13; see also Miller Aff. at ¶ 3). There is no evidence in the record that Sharp made such contact.[10] There is, however, evidence in the record that the firewall logs in the IT department at St. Johns River Community College are deleted frequently and had been deleted at least prior to December 3, 2003. (See Miller Aff. Attachments). A reasonably cautious person would be suspicious of possible wrongdoing by Plaintiff Sharp as of March 30, 2007, when the charging affidavit was filed with the State Attorney's Office.
The standard for probable cause to arrest an individual is met when the facts and circumstances within the officer's knowledge would cause a reasonably prudent person to believe, under the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense. Wood v. Kesler, 323 F.3d 872, 878 (11th Cir.2003) (internal citations omitted); Fernander v. Bonis, 947 So.2d 584, 588 (Fla. 4th DCA 2007). Florida courts have found probable cause exists when circumstances are sufficient to cause a reasonably cautious person to believe that the accused is guilty of the charged offense. Fla. Game & Freshwater Fish Comm'n v. Dockery, 676 So.2d 471, 473 (Fla. 1st DCA 1996) (defining probable cause in the context of an arrest); Fernander v. Bonis, 947 So.2d at 588 (discussing probable cause in the context of an arrest warrant where the arresting officer was accused of malicious prosecution and false imprisonment, among other allegations). Although probable cause requires more than suspicion, it does not require convincing proof. Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002).
On the facts herein noted, reasonable cause existed for the initial internal affairs investigation (IA 1106), which revealed the factual basis for the subsequent internal affairs, investigations (IA 1107 & IA 1108). Utilizing the guidance found in Wood and Fernander, the Court finds the requisite probable cause existed for filing of the charging affidavit to allege Plaintiff Sharp had been involved in the commission of a crime under Florida law. Thus, Plaintiff's malicious prosecution claim fails as to the element of absence of probable cause.
Further, following the analysis stated in Wood v. Kesler, 323 F.3d at 884, the Court *1352 finds the facts showing probable cause refute Plaintiffs attempt to establish Defendants acted with malice. As stated in Wood, "[t]he existence of probable cause, and in particular the facts showing that probable cause, contradict any suggestion of malicious intent or bad faith." Id. In this case, the malicious prosecution claim fails as to the fifth element; Plaintiff has not established there was malice on the part of the present Defendants.
QUALIFIED IMMUNITY
Irrespective of whether Plaintiff Sharp could establish a prima facie case for malicious prosecution, the Court finds Defendants Getchell and Griffith are entitled to qualified immunity under both common law and Fla. Stat. § 768.28(9)(a) (2006). As Defendants correctly note, Florida courts have looked to the federal bench for direction when ruling on qualified immunity issues. Lemay v. Kondrk, 923 So.2d 1188, 1191 (Fla. 5th DCA 2006); see also Fernander v. Bonis, 947 So.2d 584, 588-89 (Fla. 4th DCA 2007).
Both Defendant Getchell and Defendant Griffith have claimed qualified immunity from the allegations in Plaintiffs amended complaint. Defendants aver that as city employees they are not liable for any tort claim unless they acted "in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property." Fla. Stat. § 768.28(9)(a) (2006).
Plaintiff has asserted the acts of Defendants Getchell and Griffith were done with legal malice, and with willful and wanton disregard of Plaintiffs rights. (Amended Complaint at ¶ 46). Plaintiff alternatively pleads that Getchell and Griffith's conduct in filing an unsubstantiated criminal charge was so reckless or wanting in care that it constituted a conscious disregard or indifference for the rights of Plaintiff. (Amended Complaint at ¶ 49). These allegations hinge on the asserted lack of probable cause for the filing of the charging affidavit against Plaintiff.
To be entitled to qualified immunity from suit against his or her person, an arresting officer is only required to show arguable probable cause. Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir.2002) (emphasis in the original). If the probable cause to support an arrest warrant is challenged in a suit against the officer who obtained the warrant, then that officer is entitled to qualified immunity if the warrant is supported by arguable, rather than actual, probable cause. Brown v. Abercrombie, 151 Fed.Appx. 892, 893 (11th Cir. 2005).[11] In this case, the Defendants seeking qualified immunity are accused of malicious prosecution on the basis of a charging affidavit filed with the State Attorney's Office, but which was not used to arrest Plaintiff or to prosecute Plaintiff in any fashion. Thus, Defendants Getchell and Griffith need show only that the charging affidavit was supported by arguable probable cause. "Arguable probable cause exists where reasonable officers in the same circumstances and possessing the same knowledge as the [Defendants] could have believed that probable cause existed to arrest." Lee v. Ferraro, 284 F.3d at 1195 (internal citations omitted). In determining whether arguable probable cause exists, the Court must "apply an objective standard, asking whether the officer's actions are objectively reasonable . . . regardless of the officer's underlying intent or motivation." Id. (internal quotations/citations omitted).
As noted earlier, the Court finds actual probable cause existed for the filing *1353 of the charging affidavit with The "State Attorney's Office. Under the broader standard of arguable probable cause, Defendants Getchell and Griffith are clearly entitled to qualified immunity from the tort of malicious prosecution. The actions of Defendants Getchell and Griffith in meeting with a member of the State Attorney's Office and ultimately filing the charging affidavit were objectively reasonable on the facts of this case. See Lee v. Ferraro, 284 F.3d at 1195. Thus, at the least, arguable probable cause existed for the filing of the charging, affidavit.
Under both federal and Florida law, actual probable cause is considered based on the totality of the circumstances and is judged by the facts and legal state of affairs that existed at the time of the alleged violation of Plaintiffs rights. Lee v. Ferraro, 284 F.3d at 1195; Fernander v. Bonis, 947 So.2d at 588. Here, Defendants Getchell and Griffith had the discretion to investigate possible violations of police procedure and to investigate possible violations of law committed by PPD officers. See Palatka Mun.Code part II, ch. 42, art. II, § 42-31 (2006); see also, Palatka Police Dept. Gen. Orders, section 26.2.2, pp 5-6 (Doc. # 50, Exh. 12). Plaintiff Sharp was such an officer. Defendants were cautious in their investigations, as evidenced by delaying any internal affairs investigation until resolution of the actual criminal complaint of Johnson and after the posted lieutenant's position closed. (Getchell Att. at ¶ 25). Defendants conduct in conferring with the State Attorney's Office prior to filing a charging affidavit further illustrates the degree of restraint and circumspection Defendants exercised before filing the charging affidavit. Police officers are not required to consult with the State Attorney's Office before filing a Form 798, charging affidavit. (See Third Griffith Aff. [Doc. # 66-4], generally and at ¶ 6 specifically). The evidence of possible wrong-doing on the part of Sharp led to the internal affairs investigations and established probable cause for the resulting charging affidavit. On the undisputed facts, the actions of Defendants Getchell and Griffith belie Plaintiff's efforts to establish bad faith or malicious purpose in filing of the charging affidavit with the State Attorney's Office.
In interpreting § 768.28, Fla. Stat., the Florida supreme court has concluded that the intent behind amendments made to the statute in 1980 was to extend the veil of sovereign immunity to specified governmental employees when they are acting within the scope of employment, with the employing agency alone remaining liable up to the limits provided by statute. McGhee v. Volusia County, 679 So.2d 729, 733 (Fla.1996). The court held that the veil is lifted only where the employee's act fell outside the scope of employment. Id.
Here, Defendants have established, and Plaintiff has failed to refute, that the internal affairs investigations and the filing of the Form 798 charging affidavit with the State Attorney were conducted within the discretionary functions of their jobs. Probable cause existed for the filing of the charging affidavit. Defendants Getchell and Griffith are therefore entitled to qualified immunity from Plaintiffs claim of malicious prosecution.
CONCLUSION
Based on the preceding analysis, Defendants' Motion for Partial Summary Judgment on Count II of Amended Complaint with Supportive Memorandum of Law (Doc. # 67) is GRANTED. The Clerk of the Court shall enter judgment accordingly.
DONE AND ORDERED.
NOTES
[1] Much earlier in these proceedings, Defendant City of Palatka filed its Motion for Summary Judgment (Doc. # 24). For purposes of clarity, the Court will refer to the City of Palatka's motion as the First Motion for Sum mary Judgment. This Order rules only the Motion for Partial Summary Judgment filed by Defendants Getchell and Griffith (Doc. # 67).
[2] Plaintiff Sharp created a web site called the "Palatka Forum" sometime in January 2002. (Sharp Aff. at ¶ 12). Sharp stated he sold the Palatka Forum to Russell Kohuth in February 2002., (Sharp Aff. at ¶ 14; Second Griffith Aff. at ¶ 6 and Exh. C).
[3] Doc. # 66-3 is the affidavit of Melissa Miller, general counsel for the St. John's River Community College. Attached to the affidavit is the email correspondence verifying the site of IP address 169.139.172.2.
[4] The civil matter involved the litigation initiated by Plaintiff Sharp against Lynn Hoffman. During his May 5, 2003 deposition, Sharp reportedly stated that he no longer owned the Palatka Forum and was not involved in any way with the Palatka Forum. (Second Griffith Aff. at Exh. I). The Court notes a copy of the referenced deposition has not been filed in the instant action.
[5] Doc. # 66-2 is the affidavit of Gail Willis, Criminal Division Supervisor, Putnam Count Clerk's Office in the Seventh Judicial Circuit. The charging affidavit and the entire contents of the file in criminal case number 04-1375-CF-53 are attached thereto.
[6] Fla. Stat. § 838.022 (2003) states in relevant part: "It is unlawful for a public servant, with corrupt intent to obtain a benefit for any person or to cause harm to another, to [f]alsify, or cause another person to falsify, any official record or official document. . . ." Fla. Stat. § 838.022(1)(a).
[7] Throughout this Order, the terms "charging affidavit," "Form 798," and "criminal complaint against Plaintiff" have been used interchangeably. All references are to the same document, attached to the affidavit of Gail Willis (Doc. # 66-2).
[8] Martinez v. Brink's Inc., No. 04-14609, 2006 WL 551239 at *3 (11th Cir. Mar.8, 2006) is cited for its persuasive authority in accordance with the Eleventh Circuit Rules. 11th Cir. R. 36-2.
[9] City Manager Bush noted Lynn Hoffman was an independent contractor to the City of Palatka and not an employee. (Bush Aff. at ¶ 9).
[10] There is a written statement within the record wherein Plaintiff Sharp states he contacted Hayes Computer Services, a business that reportedly provides networking for the Florida Information Resource Network and a person at Hayes told him the IP address belonged to the SJRCC library. (Second Griffith Aff., Exh. H, Documentation for the 7th Judicial Circuit by Alex Sharp; dated April 13, 2004, pp. 14, 16). However, other evidence in the record disputes that Hayes personnel have access to make such a determination. (Second Griffith Aff. at ¶ 13, Exh. 14 at p. D3510).
[11] Brown v. Abercrombie, 151 Fed.Appx. 892 (11th Cir. Sept.30, 2005) is cited for its persuasive authority in accordance with the Eleventh Circuit Rules. 11th Cir. R. 36-2.
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260 A.2d 219 (1969)
Richard William BURNS b/n/f Paul Burns
v.
Dorothy C. BOMBARD.
No. 32-68.
Supreme Court of Vermont. Chittenden.
December 2, 1969.
Wick, Dinse & Allen, Burlington, for plaintiff.
Coffrin & Pierson, Burlington, for defendant.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
BARNEY, Justice.
The impact of the motorcycle on her right front fender, with rider and passenger catapulted across the hood to the left side of the street, was the first inkling the defendant *220 had that an accident was to happen. The suit was brought by the injured operator of the motorcycle, went to trial, and resulted in a defendant's verdict. The plaintiff has appealed.
Many of the crucial facts are controverted by completely contradictory testimony from witnesses who saw all or part of the actual accident. Indeed, there is little question but what the essential facts were so much in dispute as to require submission to a jury. But a description of the accident is possible.
North Avenue is a principal street running generally northerly out of the City of Burlington to certain residential areas. The defendant, Mrs. Bombard, with a car full of children, was waiting at a stop sign on an intersecting street, Shore Road, on the west side of North Avenue. She intended to cross North Avenue and enter Heineberg Road. Although Shore Road and Heineberg Road are more or less opposite each other, that opposition is not exact in that a car going across North Avenue to enter Heineberg Road from Shore Road has to angle slightly to its left. Mrs. Bombard waited for traffic to clear before crossing North Avenue. A Mr. Ploof, coming northerly on North Avenue, turned right into Heineberg Road, and Mrs. Bombard, seeing no approaching traffic, crossed North Avenue and entered Heineberg Road behind him. It was just as the front of her car entered Heineberg Road that the impact occurred.
As a consequence of the accident and injuries both the plaintiff motorcycle operator and his passenger have no recollection of the events leading up to the collision. Witnesses at the scene place the motorcycle in various locations. Some say it came northerly down North Avenue, and thus was to Mrs. Bombard's right behind Mr. Ploof. Others have it coming westerly on Heineberg Road ahead of Mrs. Bombard and toward her, but apparently on her right side of the street as she entered it. Neither Mr. Ploof nor the defendant, Mrs. Bombard, saw the motorcycle at any time prior to impact.
Since the matter was so much in dispute, the plaintiff sought to introduce a right front fender which was claimed to be the Bombard fender. Offered on that ground, it was objected to as not properly authenticated, and excluded. It was then offered as a model or representation of the damaged fender, all for the purpose of demonstrating the place and angle of impact. This offer was also rejected and the fender excluded.
The preliminary question of the adequacy of the foundation laid by the evidence for the purpose of making this exhibit admissible on either ground is conceded to be for the trial court and not ordinarily subject to review.
For this Court to interfere with the determination below the complaining party must demonstrate that the ruling amounts to an abuse of discretion. Knight v. Willey, 120 Vt. 256, 262-263, 138 A.2d 596. The exhibit in this case was neither positively identified nor unqualifiedly acknowledged to exhibit the identical damage done by the accident. In such a case the ruling below must stand.
We agree with the defendant, furthermore, that with the proposed exhibit before the jury during the trial and the descriptive references made to it in the examination of witnesses, the plaintiff cannot show that its exclusion amounted to prejudice, in any event.
The other aspect of the plaintiff's appeal relates to the adequacy of the charge. The plaintiff's dissatisfaction centers on the trial court's treatment of the rule as to rights of way and the legal effects of safety statutes. Both matters were alluded to in the charge, but not in the precise language requested by the plaintiff. The plaintiff did no more than object *221 to the failure of the trial court to charge in accordance with his requests on these issues. No attempt was made to point out any fault in the charge actually given on these matters. This, alone, would justify turning aside the plaintiff's allegations of error in the charge. Pond v. Carter, 126 Vt. 299, 310, 229 A.2d 248.
But furthermore, the argued criticism that the charge fails to refer to the effect of a claimed violation of a safety statute specifically in terms of "prima facie" evidence of negligence does not support reversal in this case. Our law is that the duties of the parties and the effect of safety statutes are all merged in the establishment of the standard of conduct of prudent persons in the same circumstances. Beaucage v. Russell, 127 Vt. 58, 62, 238 A.2d 631. This is the standard by which the actions of the parties are to be tested from the standpoint of due care, and by which liability for negligent actions is to be determined. Smith v. Blow & Cote, Inc., 124 Vt. 64, 69, 196 A.2d 489. This test was adequately charged by the trial court on the basis of the facts in this case.
The plaintiff also contends that the instruction given as to the rule governing the rights of way of the parties was insufficient. Again his exception to this charge took the form only of an objection to the failure to comply with his requests. These, in the main, presumed the defendant's vehicle to be the burdened one, an issue that was strongly controverted in the evidence at the trial.
In fact, the court fully charged the elements of rights of way at intersections and quoted the applicable statutes. The substance of the law was covered and the plaintiff has pointed out no valid shortcoming either to the lower court or to us. No grounds for reversal have been made to appear. Morgan v. Renehan-Akers Co., 126 Vt. 494, 497-498, 236 A.2d 645.
Judgment affirmed.
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00071-CR
JOHN WALTER RAYBON APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
----------
MEMORANDUM OPINION 1
----------
In three issues, appellant John Walter Raybon contends that the evidence
presented at his trial is insufficient to support his two convictions for retaliation. 2
We affirm.
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 36.06(a) (West 2011).
Background Facts
Kevin Taylor, a manager with AT&T, was working at a store in Wichita
Falls on January 8, 2011, a Saturday, when appellant entered the store to seek
assistance with issues related to his account. Appellant brought his laptop into
the store. Taylor used the laptop to help appellant, but the laptop eventually fell
off of a counter, hit the floor, and sustained damage. Taylor said that he would
contact appellant two days later, on Monday, about helping appellant repair his
laptop.
Eventually, Taylor told appellant to get a price for repairing the laptop from
an electronics store, and Taylor said that AT&T would pay for the repair. 3
Nonetheless, appellant contacted Taylor on numerous occasions about the
laptop, becoming abrasive toward him. For example, on January 11, the
Tuesday after the laptop fell, appellant mentioned to Taylor that he “carried a gun
with him anywhere he went.” Appellant also told Taylor that he would get fired,
that a “shit storm [was] coming,” and that Taylor “was about to start receiving a
lot of unwanted visitors.” Officials at Taylor’s store advised him to begin taking
varied routes home from work. AT&T assigned security officers to work in the
store beginning January 12.
On January 13, during a phone conversation that appellant had about the
damage to his laptop with Brandon Haines, who was providing customer care
3
At some point, appellant received a payment of $625 from AT&T’s
insurance company for the damage to his laptop.
2
support for AT&T, appellant became angry and told Haines that he would “take
care of the situation himself” by getting “his nine” and going to the store. Haines
believed that by referencing his “nine,” appellant meant his gun. Haines told
appellant that he took appellant’s threat seriously, ended the conversation, and
contacted Taylor to inform him about the threat.
Shortly after appellant’s conversation with Haines ended, Lane Akin, who
works with AT&T as an asset protection analyst, received information about what
appellant had conveyed to Haines, notified the Wichita Falls Police Department
about that information, and traveled to Wichita Falls to meet with Taylor. 4 On the
night of January 24, after speaking with Taylor, Akin called appellant, told him
that his “threats . . . were starting to frighten the employees,” and asked him to
make no further contact with Taylor but to instead contact only Akin with any
questions about issues related to the laptop. Akin advised appellant that Akin
had contacted the Wichita Falls police, and Akin told appellant that if he
continued to contact Taylor, harassment charges would be filed against him. In
the conversation, appellant referenced litigation, lawyers, and the media.
On January 28, appellant returned to the store. Outside of the store, in the
presence of Wichita Falls Police Department Officer John Ricketts, who was
providing security, Taylor barred appellant from the premises. In response,
4
Akin is a retired Texas Ranger. He spent thirty years in law enforcement
before working for AT&T.
3
appellant became agitated, made statements about Taylor losing his job, took a
picture of Taylor, and said to Taylor, “[Y]ou’re going to regret this.”
After Taylor went into the store, as Officer Ricketts was trying to get
information from appellant so that appellant could be legally barred from the
store, appellant repeatedly placed his hands in his pockets even though Officer
Ricketts had told him not to. Officer Ricketts told appellant to turn around and to
place his hands on his head so that Officer Ricketts could pat him down for
weapons. Appellant eventually did so, and Officer Ricketts found a nine-
millimeter semiautomatic gun in appellant’s left jacket pocket. The gun had
several rounds in its magazine. Officer Ricketts arrested appellant for unlawful
carrying of a weapon.
On the way to jail, appellant expressed that it was Taylor’s fault that he had
been arrested. In jail, appellant told Officer Ricketts that he carried a gun at all
times, that he would use it, that “AT&T and Taylor had not heard the last of him,”
and that he would get his money one way or another. Taylor called Akin to
inform him about what had occurred that day.
Upon Akin’s direction, AT&T terminated its account with appellant. On
January 31, after appellant called AT&T’s customer service department to seek
reactivation of his service, a customer service employee transferred the call to
Akin. During appellant’s conversation with Akin, which lasted longer than twenty
minutes, appellant talked “about being upset over certain issues.” He also
mentioned that he had been in jail, that his gun had been taken from him, that he
4
was licensed to carry a gun in twenty-six states, that he was going to get the gun
back, and that he was “going to make a move to destroy [Akin’s] life and . . .
Taylor’s life.” According to Akin, appellant’s statement about getting his gun back
was made in “real close time proximity” to his statement about destroying Akin’s
and Taylor’s lives. Akin understood appellant’s statement as a definite threat of
violence toward him and Taylor; Akin testified at trial that he believed that there
was a “definite possibility” that appellant meant that he would kill them and
destroy their lives once he got his gun back. After the conversation ended, Akin
reported appellant’s statement about destroying his and Taylor’s lives to the
police.
A grand jury indicted appellant with two counts of retaliation. The
indictments alleged that appellant had intentionally or knowingly threatened to
harm Akin and Taylor by shooting and killing them “in retaliation for or on account
of the[ir] service or status . . . as . . . prospective witness[es], informant[s], and as
. . . person[s] who had reported the occurrence of a crime.”
Appellant pled not guilty to both counts, and the parties litigated the counts
through one trial. After considering the evidence and the parties’ arguments, a
jury convicted appellant of both counts. The jury then listened to evidence and
arguments concerning appellant’s punishment and assessed ten years’
confinement on each count. Appellant brought this appeal.
5
Evidentiary Sufficiency
In his three issues, appellant argues that, respectively, the State failed to
prove that any threats he made accompanied a retaliatory intent, the State failed
to prove that he threatened harm by an unlawful act, and the State failed to prove
that he threatened to shoot or kill Akin or Taylor. In our due-process review of
the sufficiency of the evidence to support a conviction, we view all of the
evidence in the light most favorable to the verdict to determine whether any
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). This
standard gives full play to the responsibility of the trier of fact to resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App. 2011).
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise, 364
S.W.3d at 903. Thus, when performing an evidentiary sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). Instead, we determine whether the necessary inferences are
reasonable based upon the cumulative force of the evidence when viewed in the
6
light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.
Crim. App. 2011).
We must presume that the factfinder resolved any conflicting inferences in
favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99
S. Ct. at 2793; Wise, 364 S.W.3d at 903. In determining the sufficiency of the
evidence to show an appellant’s intent, and faced with a record that supports
conflicting inferences, we “must presume—even if it does not affirmatively appear
in the record—that the trier of fact resolved any such conflict in favor of the
prosecution, and must defer to that resolution.” Matson v. State, 819 S.W.2d
839, 846 (Tex. Crim. App. 1991).
To obtain appellant’s third-degree-felony convictions for retaliation under
section 36.06 of the penal code as the offenses were charged in the indictment,
the State was required to prove that he intentionally or knowingly threatened to
harm Akin and Taylor by an unlawful act—here, shooting and killing them—“in
retaliation for or on account of the[ir] service or status” as “prospective
witness[es], . . . informant[s],” or “person[s] who . . . reported . . . the occurrence
of a crime.” Tex. Penal Code Ann. § 36.06(a)(1), (c).
Retaliatory intent
In his first issue, appellant contends that the evidence is insufficient to
prove that he threatened Akin and Taylor “in retaliation for or on account of” their
service as prospective witnesses, informants, or reporters of the occurrence of a
crime. See id. § 36.06(a)(1). Appellant intentionally retaliated if it was his
7
conscious objective to do so. See Tex. Penal Code Ann. § 6.03(a) (West 2011).
A defendant’s intent to retaliate may be inferred from circumstantial evidence,
such as the defendant’s acts, words, or conduct. See Lozano v. State, 359
S.W.3d 790, 814 (Tex. App.—Fort Worth 2012, pet. ref’d); Helleson v. State, 5
S.W.3d 393, 395 (Tex. App.—Fort Worth 1999, pet. ref’d).
One of the purposes of the retaliation statute is to encourage a “certain
class of citizens to perform vital public duties without fear of retribution.” Doyle v.
State, 661 S.W.2d 726, 729 (Tex. Crim. App. 1983); see Cada v. State, 334
S.W.3d 766, 771 (Tex. Crim. App. 2011); Morrow v. State, 862 S.W.2d 612, 615
(Tex. Crim. App. 1993). Section 36.06, however, does not require the threatened
retaliatory harm be imminent, nor does it require the actor to intend to carry out
the threat. In re B.P.H., 83 S.W.3d 400, 407 (Tex. App.—Fort Worth 2002, no
pet.); see Lebleu v. State, 192 S.W.3d 205, 211 (Tex. App.—Houston [14th Dist.]
2006, pet. ref’d) (“The crime of retaliation does not require an intent to follow
through with a threat. . . . So long as a person issues a threat, knowingly and
intentionally, and for the reasons set out in the statute, then she is guilty of the
crime.”). Also, the “fact that the party threatened was not present when the
threat was made is no defense.” Doyle, 661 S.W.2d at 728.
It was not sufficient for the State to prove merely that appellant threatened
Akin and Taylor after learning that previous statements had been reported to the
police; rather, the law required the State to prove that the threat occurred
because of appellant’s knowledge of the reports. See Riley v. State, 965 S.W.2d
8
1, 2 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d); Wilson v. State, No. 09-96-
00086-CR, 1997 WL 137420, at *3 (Tex. App.—Beaumont Mar. 26, 1997, pet.
ref’d) (not designated for publication); see also Helleson, 5 S.W.3d at 395 (“To
support a conviction for the offense of retaliation, the evidence must establish the
retributory element found in section 36.06(a)(1) . . . .”). Comments supporting
retaliation may be evaluated in the “context within which they are uttered.” Meyer
v. State, 366 S.W.3d 728, 731 (Tex. App.—Texarkana 2012, no pet.).
Appellant contends that even if his overall statements are interpreted in the
“most damning light, the statements constitute ambiguous threats with no
relationship to any action Taylor or Akin may have made or might have made.”
He also asserts that neither the “content nor timing of the remarks . . . support a
conclusion that the statements were made because anyone reported him, might
report him, inform on him, or testify against him.” Finally, he argues that since
his threats occurred “both before and after [he] was told that [Akin and Taylor]
had reported his behavior to law enforcement,” no rational inference can be
made that the threats made after he learned of the report to law enforcement
were retaliatory.
In its brief, the State contends that the jury was entitled to infer appellant’s
retributive intent in making the statement that he was going to destroy Akin’s and
Taylor’s lives because (1) he had been told by Akin on January 24 that
harassment charges could be filed against him and that the police had already
been contacted; (2) when Taylor barred him from AT&T’s store on January 28 in
9
the presence of Officer Ricketts, appellant said that Taylor was “going to regret
[it]”; (3) appellant made the statement about destroying Taylor’s and Akin’s lives
on January 31, which was three days after he was barred from AT&T’s store and
was arrested for unlawfully carrying a weapon; and (4) appellant made the
January 31 statement in close proximity to talking about being in jail and having
his gun taken away while he was there.
Our resolution of appellant’s first issue hinges upon whether the jury
permissibly drew a reasonable inference of appellant’s intent to retaliate, which
would be entitled to our deference, or impermissibly speculated about appellant’s
intent by “theorizing or guessing about the possible meaning of [the] facts and
evidence presented.” See Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim.
App. 2013) (citing Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007)).
We conclude that the evidence entitled the jury to draw a reasonable inference
about appellant’s retaliatory intent.
Although the evidence establishes that appellant was verbally abrasive
and threatening toward several people, including Taylor, before learning of
Taylor’s and Akin’s contacts with the police, other evidence implies that
appellant’s threats after learning of the contacts were based, at least in part, on
the contacts rather than solely on the damage to his laptop and on his dispute
with AT&T. For example, soon after Taylor, in front of a police officer, barred
appellant from the store on January 28, 2011 (which was after appellant had
been paid for the damage to his laptop and after he had learned about Akin’s
10
contact with the police), 5 appellant told Taylor that he was going to “regret” doing
so. Then, while appellant was nearby the store after Taylor had entered it,
appellant began placing his hands into his pockets and reaching for a gun that
had several rounds in its magazine. 6 Shortly after appellant’s arrest for unlawful
carrying of a weapon, on the way to jail, he mentioned Taylor’s name and said
that it was Taylor’s fault that he had been arrested. While confined in jail,
appellant spoke about being angry with Taylor, stated that he “carrie[d] a gun on
him at all times and [would] use it,” and said that Taylor had not “heard the last
of” him.
The events on January 24 (when Akin first spoke to appellant and told him
about contacting the police) and January 28 provide context for Akin’s
conversation with appellant on January 31. During that conversation, appellant
said to Akin that he had been in jail, that the police had taken his gun, and that
he was going to get the gun back and “make a move to destroy” Akin’s and
Taylor’s lives.
5
We agree with the State that Taylor’s barring appellant from the store
made Taylor an “informant” who was protected from a retaliatory threat by
section 36.06 of the penal code. See Tex. Penal Code Ann. § 36.06(b)(2)
(defining “[i]nformant” as a “person who has communicated information to the
government in connection with any governmental function”).
6
Officer Ricketts testified that appellant did not “get to” the gun because
Officer Ricketts prevented appellant from doing so. Appellant struggled with
Officer Ricketts and was not fully subdued until another officer arrived.
11
We conclude that these facts provided the jury with enough circumstantial
evidence to form a reasonable inference of appellant’s retaliatory intent when he
threatened to destroy Taylor’s and Akin’s lives. See Lozano, 359 S.W.3d at 814;
Helleson, 5 S.W.3d at 395. Although appellant spoke with several people about
the damage to his laptop and about his issues with AT&T during January 2011,
his threat on January 31 to “destroy” lives was aimed at the only two people—
Taylor and Akin—who had interacted with the police about appellant’s threats.
Appellant learned about Akin’s contact with the police only seven days before
threatening to destroy Akin’s life, and appellant witnessed Taylor’s contact with
the police only three days before threatening to destroy Taylor’s life. And in the
same conversation in which appellant threatened to destroy Akin’s and Taylor’s
lives, he mentioned that he had been in jail and that the police had taken his gun.
Although some evidence in the record, including the threats that appellant made
before January 24, may raise a conflicting inference that appellant’s threat
against Akin and Taylor on January 31 was based on his general displeasure
with them and with AT&T rather than on their contacts with the police, the jury
was entitled to choose between two reasonable inferences, and we must defer to
that choice. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013);
Sorrells, 343 S.W.3d at 155; Matson, 819 S.W.2d at 846.
Finally, citing the Amarillo Court of Appeals’s decision in Wilkins v. State,
appellant contends that to obtain a conviction for retaliation, the State was
required to prove that appellant made a threat with the intent to “influence the
12
person in their capacity as a member of the statutorily protected class.” 279
S.W.3d 701, 704 (Tex. App.—Amarillo 2007, no pet.). The specific intent to
inhibit or influence the types of public service included in the retaliation statute—
as distinguished from the intent to harm or threaten harm in retaliation for or on
account of public service—is not an element of retaliation under the plain
language of section 36.06(a)(1), and we join the Corpus Christi Court of Appeals
in rejecting the holding in Wilkins on that basis. See Tex. Penal Code Ann.
§ 36.06(a)(1); 7 Lindsey v. State, No. 13-09-00181-CR, 2011 WL 2739454, at *5
n.4 (Tex. App.—Corpus Christi July 14, 2011, no pet.) (mem. op. on remand, not
designated for publication); see also Arceneaux v. State, No. 09-08-00210-CR,
2009 WL 857624, at *1 (Tex. App.—Beaumont Apr. 1, 2009, no pet.) (mem. op.,
not designated for publication) (“We do not accept Arceneaux’s argument that
section 36.06(a)(1)(A) of the Penal Code . . . requires the threat to have affected
or inhibited the service rendered by the public servant.”).
For all of these reasons, viewing the evidence in the light most favorable to
the jury’s verdict, we conclude that the evidence was sufficient for a rational jury
to infer appellant’s retaliatory intent beyond a reasonable doubt, and we overrule
appellant’s first issue.
7
In contrast, section 36.06(a)(2) supports a conviction for obstruction or
retaliation when a person seeks to “prevent or delay the service of another” as a
public servant, witness, prospective witness, informant, or reporter of crime.
Tex. Penal Code Ann. § 36.06(a)(2). The indictment in this case tracked section
36.06(a)(1).
13
Unlawful act to shoot or kill
In his second and third issues, appellant argues that the evidence is
insufficient to prove that he threatened an unlawful act, which, under the
indictment in this case, was shooting and killing Taylor and Akin. See Tex. Penal
Code Ann. § 36.06(a). “Whether a particular statement may properly be
considered to be a threat is governed by an objective standard—whether a
reasonable person would foresee that the statement would be interpreted by
those to whom the maker communicates the statement as a serious expression
of intent to harm or assault.” Manemann v. State, 878 S.W.2d 334, 337 (Tex.
App.—Austin 1994, pet. ref’d); see Meyer, 366 S.W.3d at 731.
Concerning his conversation with appellant on January 31, Akin testified,
[T]he call again began with about 20 minutes or so of . . . him ranting
. . . and talking about being upset over certain issues . . . and I just
listened to him. . . . [H]e mentioned the fact that . . . he had been in
jail and that Wichita Falls PD had taken his weapon.
He was upset about his service being cancelled. He said he
was going to get his weapons back. Yeah, I remember he told me
that -- that he was licensed to carry in 26 states and that he was
going to make a move to destroy[8] my life and Kevin Taylor’s life.
[Emphasis added.]
Akin then testified that he took appellant’s statement as a threat to himself and
Taylor, that he thought that it was a “definite possibility” that appellant meant that
he would shoot or kill Akin and Taylor, and that appellant’s reference to his
8
According to Webster’s Third New International Dictionary, “destroy” may
mean to take the life of or to kill. Webster’s Third New Int’l Dictionary 615 (2002).
14
weapon was made in “real close time proximity” and “right on the [heels]” to his
statement about destroying Akin’s and Taylor’s lives.
Viewed in the light most favorable to the verdict, we conclude that this
testimony entitled the jury to rationally find beyond a reasonable doubt that
appellant threatened an unlawful act by shooting and killing Taylor and Akin.
See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Wise, 364 S.W.3d at 903.
While appellant argues that “make a move to destroy” could have “as easily”
referred to his intent to sue Taylor and Akin, we must defer to the jury’s
reasonable inference that the comment, in its context of appellant stating in close
proximity that he was going to retrieve his gun, stating before January 31 that he
was going to bring his “nine” to the store, and actually bringing his gun—a nine
millimeter—to the store and reaching for it three days earlier, instead referred to
shooting and killing Taylor and Akin. See Sorrells, 343 S.W.3d at 155; Matson,
819 S.W.2d at 846; see also Meyer, 366 S.W.3d at 731–32 (stating that
comments can be evaluated as threats based on their context and holding that
because the evidence supported differing reasonable conclusions that could be
drawn by a factfinder, the evidence was sufficient to show a threat to harm);
Manemann, 878 S.W.2d at 337 (“Threats of physical harm need not be directly
expressed, but may be contained in veiled statements nonetheless implying
injury to the recipient when viewed in all the circumstances.”). We overrule
appellant’s second and third issues.
15
Conclusion
Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 15, 2013
16
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"pile_set_name": "FreeLaw"
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164 F.3d 820
Michael J. STUTO, Plaintiff-Appellant,v.Seymour FLEISHMAN, Thomas Pavloski, Kenneth Hamlett, NewYork City Office of the United States Department of Labor'sOffice of Workers' Compensation Programs, U.S. Department ofLabor, and United States of America, Defendants-Appellees.
No. 97-6305.
United States Court of Appeals,Second Circuit.
Argued May 13, 1998.Decided Jan. 21, 1999.
Phillip G. Steck, Cooper, Erving, Savage, Nolan & Heller, LLP, Albany, NY, for Plaintiff-Appellant.
Rebecca DeRuyter, U.S. Department of Labor, Office of the Solicitor, Washington, DC (Thomas J. Maroney, United States Attorney, Thomas Spina, Assistant U.S. Attorney, Northern District of New York, Albany, NY, of counsel ), for Defendants-Appellees.
Before: FEINBERG and WALKER, Circuit Judges, and SHADUR,* Senior District Judge.
WALKER, Circuit Judge:
1
Plaintiff-appellant Michael J. Stuto appeals from the judgment entered December 2, 1997, by the United States District Court for the Northern District of New York (Lawrence E. Kahn, Judge ), dismissing his complaint pursuant to Fed.R.Civ.P. 12(b)(6). This judgment followed upon two orders of the district court: the first, issued by Judge Con C. Cholakis, dismissed most of Stuto's claims; Judge Lawrence E. Kahn later dismissed the balance of the complaint. Stuto's complaint alleged a Bivens-type damages claim against defendants-appellees Seymour Fleishman, Thomas Pavloski, and Kenneth Hamlett for violation of his right to due process under the Fifth Amendment, as well as claims against the United States, the United States Department of Labor, and the New York City branch of the Office of Workers' Compensation Programs ("OWCP") (collectively the "government" or "government defendants") under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671 et seq., for misrepresentation, fraud, and negligent and intentional infliction of emotional distress arising out of the improper termination of Stuto's disability benefits under the Federal Employees' Compensation Act ("FECA"), 5 U.S.C. § 8101 et seq. Stuto appeals only from Judge Cholakis's dismissal of his due process claim and Judge Kahn's dismissal of his FTCA claim for intentional infliction of emotional distress. Because we hold that Stuto's due process rights were not violated and that he has failed to state a claim for intentional infliction of emotional distress, we affirm.
BACKGROUND
2
Stuto's complaint alleges the following facts. In September 1985, Stuto, a mailhandler employed by the United States Postal Service in Albany, New York, suffered a disabling work-related injury to his lower back that required surgery. Two months later he began receiving workers' compensation benefits pursuant to FECA. Four years later, in September 1989, Stuto was given medical clearance for limited job duty of three hours a day. Soon after starting a job repairing damaged mail, his back injury worsened and his physician, Dr. Guidarelli, declared him totally disabled. In November 1989, a Dr. Fay performed a "fitness for duty exam" for the Postal Service and determined that Stuto "would benefit from a ... Work Assessment Conditioning Center." Stuto attended the program, but his condition did not improve. Stuto continued to receive disability payments.
3
On March 18 and June 26, 1991, at the request of the Department of Labor, Stuto was examined by Drs. Fay and Kavanaugh. Both concluded that Stuto was capable of limited sedentary work. Over the next year Stuto accepted new job offers from the Postal Service, but, for reasons not stated in the complaint, he never actually entered into any of these jobs.
4
On May 29, 1992, Fleishman of OWCP sent a letter to Stuto advising him that OWCP had determined that a new job offer from the Postal Service was suitable for Stuto in light of the medical evidence concerning Stuto's ability to work. He gave Stuto "30 days from the receipt of this letter to either accept the job or to provide a reasonable, acceptable explanation for refusing the offer." On July 2, Stuto sent a letter to OWCP stating that he accepted the job offer but also that he had been advised by his physicians, Drs. Guidarelli and Patel, that he was totally disabled. He requested that OWCP send him to a medical referee to resolve any conflict. He also objected to several of the medical reports in his file as not having been obtained in accordance with FECA regulations.
5
Meanwhile, on July 1 Stuto had submitted to a "fitness for duty" exam by a Dr. Rogers, as required by the Postal Service. Dr. Rogers sent a medical report to the Postal Service on July 2, stating that in his opinion Stuto was totally disabled and incapable of working. That report allegedly was forwarded to OWCP by the Postal Service on July 7, accompanied by a memorandum from the Postal Service stating that it needed clarification regarding Stuto's current medical condition before he could report for work. Because Stuto's medical condition remained unclear, the Postal Service did not request that he report for work, and Stuto never did so.
6
Stuto did not receive his scheduled worker's compensation payment for July. In a telephone call on July 29, Fleishman informed Stuto's brother, Peter Stuto, that Stuto's disability benefits were "terminated because he is not working." According to Stuto's complaint, Fleishman denied that Dr. Rogers's "fitness for duty" report had been received by OWCP.
7
OWCP then sent Stuto an order dated August 5, declaring that his benefits had been terminated because "[i]n a statement ... dated July 2, 1992, [Stuto] accepted the job offer but then refused it based on the advice of his physician." Attached to the order was a letter explaining, inter alia, that the "decision [to terminate his benefits] was based on all evidence of record and on the assumption that all available evidence was submitted. If you disagree with the decision, you may follow any one of the courses of action outlined on the attached appeal rights." The "appeal rights" referred to an enclosed memorandum entitled "Federal Employees' Compensation Act Appeal Rights."
8
According to Stuto, the individual defendants at OWCP continued to deny that they had received Dr. Rogers's report, even though Stuto's OWCP file indicates that the OWCP received the report on July 7, that its substance was communicated to the defendants several times, and that a second copy of the report was sent to OWCP on August 5. Moreover, the individual defendants refused to reconsider their decision to terminate Stuto's benefits in light of the report. In response to Stuto's complaint that he would be in a difficult financial condition if his benefits did not resume, Pavloski allegedly suggested that Stuto request another "fitness for duty exam" and tell the doctor that he could do the job. Pavloski told Stuto that he could appeal the termination, but that "his case was very weak, and if the appeal were lost, the Post Office would never offer him another job." Stuto also alleges that the individual defendants conspired to put Dr. Rogers's report into Stuto's file after the date of the termination "in an effort to sabotage Mr. Stuto's right to appeal to the Employees' Compensation Appeals Board ['ECAB']."
9
On August 10, 1992, Stuto filed an appeal with the ECAB for review of the decision to terminate his benefits. On November 4, 1992, the Director of the OWCP filed a motion to set aside the decision to terminate and to remand the case. He contended that OWCP had not followed proper procedures in two ways: (1) it failed to notify Stuto that the medical examination by Dr. Kavanaugh was for the purpose of resolving a conflict in the medical evidence, and therefore Dr. Kavanaugh's report could not be used to resolve the conflict, and (2) it failed to give Stuto appropriate notice prior to terminating his benefits, as required by FECA Bulletin No. 92-19. The Director stated that "[o]n remand, the Office will reinstate appellant's monetary benefits, retroactive to July 11, 1992, ... will ensure that Dr. Kavanaugh's June 26, 1991 report is excluded from further review in appellant's claim[,] and will follow proper procedures to resolve the conflict of medical evidence." On January 11, 1993, the ECAB granted the Director's motion to remand. See In the Matter of Michael Stuto, No. 92-1978 (ECAB January 11, 1993).
10
In November of 1992, prior to the ECAB's decision to remand, Stuto filed an action in the United States District Court for the Northern District of New York alleging that the Secretary of Labor violated his rights under the Due Process Clause and FECA by improperly terminating his disability benefits. Stuto moved for a preliminary injunction reinstating his disability benefits. In response, the government agreed to reinstate his benefits retroactively, and the motion for a preliminary injunction was withdrawn. Following the ECAB's remand of the case, an impartial medical examination determined that Stuto was totally disabled; his benefits have continued to the present day.
11
On July 7, 1994, Stuto filed this action in the United States District Court for the Northern District of New York. He alleged a Bivens-type claim against the individual defendants Fleishman, Pavloski and Hamlett, for violation of his Fifth Amendment right to due process, see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 390, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (recognizing implied cause of action for violation of plaintiff's Fourth Amendment rights), and a claim against the government defendants under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq., for misrepresentation, fraudulent denial of benefits, and negligent and intentional infliction of emotional distress. The government moved to dismiss the action pursuant to Fed.R.Civ.P. 12(b)(6). Judge Cholakis dismissed all of Stuto's claims except for the claims for negligent and intentional infliction of emotional distress. The case was subsequently transferred to Judge Kahn, who dismissed the remaining claims upon the government's motion for reconsideration. This appeal followed.
DISCUSSION
12
Judge Cholakis held, inter alia, that (1) in accordance with Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988), the comprehensive remedial scheme enacted by Congress under FECA displaced a Bivens remedy for constitutional violations; (2) even if a Bivens action would lie, the individual defendants were entitled to qualified immunity because they had not violated a clearly established constitutional right; and (3) all of Stuto's claims under the FTCA except for negligent and intentional infliction of emotional distress were barred by either the "discretionary functions" or the "intentional torts" exceptions to the FTCA, 28 U.S.C. § 2680(a), (h). See Stuto v. Fleishman, 94-CV-846, slip op. at 3-11 (N.D.N.Y. Jan. 8, 1996). Later, Judge Kahn held that Stuto's claims for negligent and intentional infliction of emotional distress were also barred by the "discretionary functions" exception to the FTCA, 28 U.S.C. § 2680(a), and that the allegedly tortious conduct was not sufficiently outrageous to satisfy the strict standards for intentional infliction of emotional distress under New York law. See Stuto v. Fleishman, 94-CV-0846 (LEK/DNH), slip op. at 17 (N.D.N.Y. Nov. 4, 1997). On appeal, Stuto argues that (1) his Bivens claim is not displaced by FECA; (2) the individual defendants are not entitled to qualified immunity; and (3) his claim for intentional infliction of emotional distress is not barred by the "discretionary functions" exception to the FTCA and alleges sufficiently outrageous conduct to satisfy the elements of the tort under New York law. For the following reasons, we affirm the dismissal of Stuto's claims.
I. Standard of Review
13
We review the dismissal of a complaint under Rule 12(b)(6) de novo, taking as true the material facts alleged in the complaint and drawing all reasonable inferences in favor of the plaintiff. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir.1998); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996). A dismissal under Rule 12(b)(6) for failure to state a cognizable claim may be affirmed only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Citibank, N.A. v. K-H Corp., 968 F.2d 1489, 1494 (2d Cir.1992); see also Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
II. Bivens Claim
14
We need not decide whether Congress intended FECA to displace a Bivens remedy for constitutional harms because we find that, in any event, Stuto's Bivens claim would fail because he has failed to state a claim for denial of due process.
15
The district court found that the individual defendants were shielded by qualified immunity because their discretionary actions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). However, in the recent decision of County of Sacramento v. Lewis, the Supreme Court stated that
16
the better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all. Normally, it is only then that a court should ask whether the right allegedly implicated was clearly established at the time of the events in question.
17
523 U.S. 833, 118 S.Ct. 1708, 1714 n. 5, 140 L.Ed.2d 1043 (1998). While we have held that this preference is non-mandatory, Medeiros v. O'Connell, 150 F.3d 164, 169 (2d Cir.1998), we acceded to it in Medeiros and affirmed on the merits of the constitutional claim in light of Lewis, although the district court's decision was based on qualified immunity. Therefore, we will examine whether Stuto has alleged a violation of due process.
18
There can be little doubt that Stuto's disability benefits under FECA constitute a valid property interest. See Raditch v. United States, 929 F.2d 478, 480 (9th Cir.1991) (recognizing property interest in FECA benefits); see also Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (recognizing property interest in Social Security disability benefits); Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (recognizing property interest in welfare benefits). Stuto argues that the individual defendants intentionally, or at least negligently, deprived him of this property interest by improperly terminating his benefits. However, the negligent or intentional deprivation of property through the random and unauthorized acts of a state or federal employee does not constitute a deprivation of due process if "a meaningful postdeprivation remedy for the loss is available." Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (intentional deprivation); see also Parratt v. Taylor, 451 U.S. 527, 543, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) (negligent deprivation); Raditch, 929 F.2d at 480-81 (applying the holdings of Parratt and Hudson to the termination of FECA benefits). In her concurring opinion in Hudson, Justice O'Connor explained that
19
Of course, a mere allegation of property deprivation does not by itself state a constitutional claim under [the Due Process] Clause. The Constitution requires the Government, if it deprives people of their property, to provide due process of law and to make just compensation for any takings. The due process requirement means that Government must provide to the [plaintiff] the remedies it promised would be available.
20
Hudson, 468 U.S. at 539, 104 S.Ct. 3194 (O'Connor, J., concurring). Here, Stuto had available to him a menu of possible post-deprivation remedies for the termination of his benefits. In fact, his appeal to the ECAB resulted in the retroactive restoration of his benefits due to the procedural irregularities that had led to termination. That Stuto "might not be able to recover under these remedies the full amount which he might receive in a [Bivens-type] action is not ... determinative of the adequacy of the [administrative] remedies." Hudson, 468 U.S. at 535, 104 S.Ct. 3194. Accordingly, we find that Stuto has not alleged a violation of due process.
21
Stuto relies on two district court cases to support his claim that the actions taken by the individual defendants in suppressing evidence rendered ineffectual whatever procedural protections Congress intended to afford under FECA, thereby stating a claim for a violation of due process. In Rauccio v. Frank, 750 F.Supp. 566 (D.Conn.1990), the district court allowed a due process claim because the defendants (plaintiff's superiors) had repeatedly acted in a manner that foreclosed his ability to pursue remedies for his demotion and termination under the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111 (1978). See id. at 570-71. Similarly, in Grichenko v. United States Postal Serv., 524 F.Supp. 672 (E.D.N.Y.1981), plaintiff was allowed to bring a due process claim against several postal employees based on their "intentional failure timely to process his claim for compensation in FECA," which resulted in FECA's denial of benefits based on the untimeliness of the claim. Id. at 673. Both Rauccio and Grichenko involved conduct that foreclosed the administrative remedies of FECA, and therefore FECA's protections were unavailable.
22
Stuto argues that the individual defendants purposefully suppressed Dr. Rogers's report and intentionally deprived him of access to FECA's post-deprivation remedies by placing the report in Stuto's file after the order to terminate had been issued so that it was not part of the record reviewed by the ECAB. Thus, Stuto contends, he was "forced to go outside the established administrative process to redress his grievances." We reject this argument.
23
Stuto appears to be correct that on appeal, the ECAB could consider only the evidence contained in the record at the time the termination order was issued. However, as explained in "Federal Employees' Compensation Act Appeal Rights,"1 an appeal to the ECAB was only one of several avenues of recourse open to Stuto. He could have sought an oral hearing before an OWCP representative within 30 days after the termination decision, where he would have had "the opportunity to present oral testimony and written evidence in further support of [his] claim." Similarly, Stuto could have sought reconsideration. The memorandum informed Stuto that
24
[i]f you have additional evidence which you believe is pertinent, you may request, in writing, that OWCP reconsider this decision. Such a request must be made within one year of the date of the decision, clearly state the grounds upon which reconsideration is being requested, and be accompanied by relevant evidence not previously submitted, such as medical reports or affidavits, or a legal argument not previously made. ... In order to ensure that you receive an independent evaluation of the evidence, your case will be reconsidered by persons other than those who made this determination.
25
(emphasis added). Under either of these two procedures, Stuto would have been allowed to submit new evidence such as Dr. Rogers's report. The fact that Stuto opted for a direct appeal, the one avenue that prevented him from submitting Dr. Rogers's report, does not lead us to conclude that he was denied due process when other avenues that would have satisfied his objectives were open to him.
26
Finally, to the extent Stuto's complaint alleges a facial challenge to the absence of pre-termination notice procedure, his premise is in error. As noted in the Director of OWCP's motion to remand and in the ECAB decision granting remand, FECA Bulletin 92-19, effective July 31, 1992, already required such pre-termination notice at the time Stuto's benefits were terminated. These are now apparently permanent requirements. See Stuto v. Reich, No. 92-CV-1374, slip op. at 2 & n. 1 (N.D.N.Y. Nov. 18, 1994). As discussed above, the fact that Stuto did not receive the notice due to the individual defendants' failure to follow these procedures was constitutionally remedied by the availability of adequate post-deprivation review.
III. FTCA Claim
27
With respect to the FTCA claims, Stuto challenges only the dismissal of the claim for intentional infliction for emotional distress. Judge Kahn dismissed this claim on the grounds that (1) it was barred by the "discretionary functions" exception to the FTCA, 28 U.S.C. § 2680(a), and (2) the alleged conduct was not sufficiently outrageous to satisfy the requirements for intentional infliction of emotional distress under New York law. We need not decide whether Stuto's claim would be barred by any of the exceptions to the FTCA because we agree with the district court that, in any event, the conduct at issue does not meet the stringent requirements for this tort under New York law.
28
Under the FTCA, the government may be held liable for tortious conduct of federal agencies or employees only if a private actor would have been found liable under the state law where the tortious conduct occurred. See 28 U.S.C. § 1346(b) (FTCA only comprises causes of action that are "in accordance with the law of the place where the act or omission occurred"). Accordingly, we look to New York state tort law to determine whether Stuto has stated a claim.
29
Under New York law, a claim for intentional infliction of emotional distress requires a showing of (1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress. See Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993). " 'Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.' " Id. at 122, 596 N.Y.S.2d 350, 612 N.E.2d 699 (quoting Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983)); Restatement (Second) of Torts, § 46 cmt. d (1965). Thus,
30
[i]t has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.
31
Restatement (Second) of Torts § 46 cmt. d (1965). Whether the conduct alleged may reasonably be regarded as so extreme and outrageous as to permit recovery is a matter for the court to determine in the first instance. See id. at § 46 cmt. h; see also Howell, 81 N.Y.2d at 121, 596 N.Y.S.2d 350, 612 N.E.2d 699.
32
As the district court noted, several New York courts have dismissed cases involving acts of coercion and misrepresentation related to employment or disability decisions on the ground that such conduct was not extreme and outrageous. For example, in Murphy, 58 N.Y.2d at 293, 461 N.Y.S.2d 232, 448 N.E.2d 86, the plaintiff alleged that he was transferred and demoted for reporting fraud, coerced to leave by being told that he would never be allowed to advance, discharged and ordered to leave immediately after reporting other alleged in-house illegal conduct, and then forcibly and publicly escorted from the building by guards when he returned the next day to pick up his belongings. The Court of Appeals held that this conduct fell "far short" of the tort's "strict standard" for outrageous behavior. Id. at 303, 461 N.Y.S.2d 232, 448 N.E.2d 86; see also Burlew v. American Mut. Ins. Co., 63 N.Y.2d 412, 415, 417-18, 482 N.Y.S.2d 720, 472 N.E.2d 682 (1984) (defendant's intentional five-month delay in authorizing needed surgery in connection with plaintiff's worker's compensation claim, statement to plaintiff that " 'You're crazy if you think we're going to support you for the rest of your life,' " and procurement of an affidavit from an employee stating that plaintiff's condition resulted from a pre-existing injury not sufficiently extreme or outrageous to state a claim); Howell, 81 N.Y.2d at 118-19, 126, 596 N.Y.S.2d 350, 612 N.E.2d 699 (newspaper's publication of photograph of plaintiff and Hedda Nussbaum taken at psychiatric hospital, obtained by photographer's trespass onto hospital grounds, and published despite hospital's entreaties to remove plaintiff from picture because only her immediate family knew she was there, not sufficiently outrageous); Foley v. Mobil Chem. Co., 214 A.D.2d 1003, 626 N.Y.S.2d 906, 908 (4th Dep't 1995); Ruggiero v. Contemporary Shells, Inc., 160 A.D.2d 986, 554 N.Y.S.2d 708, 708-09 (2d Dep't 1990); Luciano v. Handcock, 78 A.D.2d 943, 433 N.Y.S.2d 257, 258 (3d Dep't 1980).
33
Huzar v. New York, 156 Misc.2d 370, 590 N.Y.S.2d 1000 (N.Y.Ct.Cl.1992), is similar on its facts to the case at hand. There, a correction officer's disability claim was controverted by the Department of Correctional Services as a matter of routine policy, although the Workers' Compensation Board later determined that the plaintiff was disabled. The court found that the plaintiff had failed to state a claim for intentional infliction of emotional distress, notwithstanding his allegations that he was
34
threatened by the facility staff that I would be fired if I did not return to work, even though they knew that I had a legitimate job related disability that prevented me from working.... I was told that I would not be allowed to receive my Workers' Compensation benefits. I was told that if I continued to stay out of work, I would be taken off the payroll and lose all of my medical benefits. Calls were made to my home, demanding that I return to work, and if I was not home at the time the calls were made, my wife would be harassed with these calls, and would be questioned as to my whereabouts.
35
Id. at 1004.
36
As in Huzar, Stuto has failed to allege any conduct that is sufficiently "extreme and outrageous" to meet the stringent New York standard as enunciated in the foregoing cases. The crux of his complaint is that OWCP officials "intentionally, recklessly, and/or negligently ignored" dispositive medical evidence, "lied to Mr. Stuto, requested that he lie during his medical examinations, and used his financial need for disability benefits as a weapon to coerce him into acceding to their invalid demands that he return to work." We agree with the district court's observation that coercion is inherent in any decision by OWCP to require a recipient of disability benefits to go to work on the basis that the medical evidence indicates that he is capable of such work. As Stuto acknowledged in his complaint, the individual defendants had before them two medical reports stating that Stuto was capable of limited sedentary work, and OWCP had determined that the job offer at the Postal Service was suitable. Moreover, their disregard of Dr. Rogers's report, while certainly improper, was not sufficiently outrageous given the fact that Stuto could have introduced this report at an oral hearing or upon reconsideration, had he requested either.
37
Stuto points to several cases in which courts have sustained claims for intentional infliction of emotional distress. However, these cases all involved some combination of public humiliation, false accusations of criminal or heinous conduct, verbal abuse or harassment, physical threats, permanent loss of employment, or conduct contrary to public policy. See, e.g., Macey v. NYSEG, 80 A.D.2d 669, 436 N.Y.S.2d 389, 391-92 (3d Dep't 1981) (defendant electric company refused to restore plaintiff's electricity unless she legally separated from her husband); Sullivan v. Board of Educ., 131 A.D.2d 836, 517 N.Y.S.2d 197, 199, 200 (2d Dep't 1987) (defamation and threat of bringing falsified charges used to coerce resignation of tenured professor); Kaminski v. UPS, 120 A.D.2d 409, 501 N.Y.S.2d 871, 872, 873 (1st Dep't 1986) (false accusation of theft, false imprisonment, verbal abuse, and threat of prosecution resulted in coerced confession and resignation); Halperin v. Salvan, 117 A.D.2d 544, 499 N.Y.S.2d 55, 57-58 (1st Dep't 1986) (malicious prosecution; false accusations of criminal conduct); Bialik v. E.I. DuPont De Nemours & Co., 142 Misc.2d 926, 539 N.Y.S.2d 605, 606 (N.Y.Sup.1988) (plaintiff's complaint about unsafe working conditions resulted in improper disciplinary action against him, false accusation that he was responsible for accident that resulted in death of one woman, termination, discrimination after reinstatement, and second termination); Flamm v. Van Nierop, 56 Misc.2d 1059, 291 N.Y.S.2d 189, 190-91 (N.Y.Sup.1968) (recurring physical threats and harassing phone calls).
38
The conduct in these cases is readily distinguishable from that alleged by Stuto. The individual defendants here neither verbally abused, physically threatened, nor publicly humiliated Stuto; they neither falsely accused him of criminal or heinous misconduct, threatened him with prosecution, nor permanently deprived him of his benefits or employment. Accordingly, we affirm the district court's dismissal of Stuto's claim under the FTCA for intentional infliction of emotional distress.
CONCLUSION
39
We hold that (1) Stuto failed to state a claim for denial of due process because adequate post-deprivation remedies existed to restore his benefits; and (2) Stuto failed to allege sufficiently "extreme or outrageous" conduct to state a claim under the FTCA for intentional infliction of emotional distress. The judgment of the district court dismissing Stuto's claims is affirmed.
*
The Honorable Milton I. Shadur, of the United States District Court for the Northern District of Illinois, sitting by designation
1
Although this case was decided on the government's motion to dismiss under Fed.R.Civ.P. 12, our consideration of this document is permissible because it was part of the termination order sent to Stuto and discussed in his complaint, and therefore was incorporated by reference. See Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir.1996) (" 'In considering a motion to dismiss for failure to state a claim ... a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference.' " (quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991))); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991) (court can consider documents of which the plaintiffs had notice and which were integral to their claim in ruling on motion to dismiss even though those documents were not incorporated into the complaint by reference)
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130 F.3d 691
UNITED STATES of America, Plaintiff-Appellee,v.Luis Lauro HINOJOSA-LOPEZ, Defendant-Appellant.
No. 97-40183.
United States Court of Appeals,Fifth Circuit.
Dec. 4, 1997.
James Lee Turner, Paula Camille Offenhauser, Assistant U.S. Atty., Katherine L. Haden, Houston, TX, for Plaintiff-Appellee.
Jose E. Chapa, Jr., Roberto J. Yzaguirre, Yzaguirre & Chapa, McAllen, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas.
Before REYNALDO G. GARZA, KING and BENAVIDES, Circuit Judges.
KING, Circuit Judge:
1
Defendant-appellant Luis Lauro Hinojosa-Lopez appeals the sentence imposed upon him by the district court after he pled guilty to a one-count indictment charging him with unlawful presence in the United States following deportation. He claims that the district court incorrectly added sixteen points to his offense level on the basis of his prior state felony conviction for possession of marijuana. He also argues that the government failed to prove all of the necessary elements of the offense of which he was convicted. Finding no error, we affirm the district court's judgment of conviction and sentence.
I. FACTUAL & PROCEDURAL BACKGROUND
2
Luis Lauro Hinojosa-Lopez pled guilty to a one-count indictment charging him with unlawful presence in the United States following deportation pursuant to 8 U.S.C. § 1326(a), (b)(2) (1994). In exchange for Hinojosa-Lopez's guilty plea, the government agreed to recommend the maximum credit for acceptance of responsibility and a sentence at the low end of the applicable Sentencing Guidelines range. The Presentence Investigation Report ("PSR") indicated that Hinojosa-Lopez's previous convictions included a Texas conviction for "aggravated unlawful possession of marijuana," for which he had received a five-year prison sentence. Based on that Texas conviction, the PSR stated that Hinojosa-Lopez's base offense level of eight should be increased by four points because he had been deported after conviction of a felony. See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(a), (b)(1) (1995). The PSR also indicated that Hinojosa-Lopez was entitled to a two-point reduction for acceptance of responsibility, see id. § 3E1.1(a), resulting in a total offense level of ten, which, in combination with a criminal history category of III, produced a guidelines sentencing range of ten to sixteen months of imprisonment. Neither the government nor Hinojosa-Lopez objected to these findings.
3
At the initial sentencing hearing, the district court queried whether Hinojosa-Lopez's Texas conviction for aggravated possession of marijuana was an aggravated felony within the meaning of § 2L1.2(b)(2) of the Sentencing Guidelines. Section 2L1.2(b)(2) requires a sixteen-point increase in the offense level rather than the four-point increase mandated by § 2L1.2(b)(1). See id. § 2L1.2(b)(1), (2). As neither side was prepared to address this issue, the judge continued the sentencing hearing. When the sentencing hearing resumed, defense counsel confirmed that cases from every circuit that had considered the issue indicated that a sixteen-point increase in Hinojosa-Lopez's offense level pursuant to § 2L1.2(b)(2) was appropriate, but he nevertheless asked the court to sentence Hinojosa-Lopez according to the original PSR.
4
The district court found that Hinojosa-Lopez's aggravated possession of marijuana conviction qualified as an aggravated felony and applied the sixteen-point increase pursuant to § 2L1.2(b)(2) of the Sentencing Guidelines. The court then granted Hinojosa-Lopez a three-point decrease for acceptance of responsibility, resulting in a guidelines sentencing range of forty-six to fifty-seven months of imprisonment. However, because the court found that the PSR overstated Hinojosa-Lopez's criminal history, the court decreased the criminal history category to II and sentenced Hinojosa-Lopez to forty-two months of imprisonment.
II. DISCUSSION
A. Application of § 2L1.2(b)(2)
5
Hinojosa-Lopez argues that the district court erred in imposing a sixteen-point enhancement pursuant to § 2L1.2(b)(2) of the Sentencing Guidelines. He contends that the term "aggravated felony" as used in § 2L1.2(b)(2) does not include his Texas felony conviction for possession of marijuana because that crime is only a misdemeanor under federal law. See 21 U.S.C. § 844(a) (1994).
6
This court's review of a sentence imposed under the Sentencing Guidelines is limited to "a determination whether the sentence was imposed in violation of law, as a result of an incorrect application of the Sentencing Guidelines, or was outside of the applicable guideline range and was unreasonable." United States v. Matovsky, 935 F.2d 719, 721 (5th Cir.1991). We will reverse the trial court's findings of fact only if they are clearly erroneous, but "[w]e review a claim that the district court erred in applying U.S.S.G. § 2L1.2(b)(2) instead of § 2L1.2(b)(1) de novo."1 United States v. Reyna-Espinosa, 117 F.3d 826, 828 (5th Cir.1997).
7
Section 2L1.2(b)(2) of the Sentencing Guidelines provides that the defendant's offense level should be increased by sixteen points "[i]f the defendant previously was deported after a conviction for an aggravated felony." U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(2) (1995). Application Note 7 to § 2L1.2 defines the term "aggravated felony," in pertinent part, as follows:
8
"Aggravated felony," as used in subsection (b)(2), means ... any illicit trafficking in any controlled substance (as defined in 21 U.S.C. § 802), including any drug trafficking crime as defined in 18 U.S.C. § 924(c)(2).... The term "aggravated felony" applies to offenses described in the previous sentence whether in violation of federal or state law....
9
Id. § 2L1.2 Application Note 7.
10
Marijuana is a "controlled substance." 21 U.S.C. §§ 802(6), 812 Schedule I(c)(10) (1994). In pertinent part, 18 U.S.C. § 924(c)(2) defines a "drug trafficking crime" as "any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq)." 18 U.S.C. § 924(c)(2) (1994). Hinojosa-Lopez contends that this language indicates that in order to qualify as an aggravated felony, the crime must be classified as a felony by the Controlled Substances Act. We disagree.
11
Although this is an issue of first impression before this court, it has been addressed by several other circuits. In United States v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir.1996), the First Circuit held that the defendant's prior state conviction for simple possession of cocaine qualified as an aggravated felony under § 2L1.2(b)(2) despite the fact that the same offense was punishable only as a misdemeanor under federal law. Id. at 364-65. Looking to the interaction between the Sentencing Guidelines and the applicable federal statutes, the court held that 18 U.S.C. § 924(c)(2) defines a "drug trafficking crime" as "encompassing two separate elements: (1) that the offense be punishable under the Controlled Substances Act (or one of the other two statutes identified); and (2) that the offense be a felony." Id. at 364. The court then explained that
12
a state drug offense is properly deemed a "felony" within the meaning of 18 U.S.C. § 924(c)(2) as incorporated by application note 7 to U.S.S.G. § 2L1.2, if the offense is classified as a felony under the law of the relevant state, even if the same offense would be punishable only as a misdemeanor under federal law.
13
Id. at 365. As the defendant's prior conviction was a felony under applicable state law and was punishable under the Controlled Substances Act, the court held that § 2L1.2(b)(2) applied. Id.
14
We agree with the reasoning of the First Circuit in Restrepo-Aguilar and of the four other circuits that have considered this issue. See, e.g., United States v. Briones-Mata, 116 F.3d 308, 310 (8th Cir.1997) ("We believe the definitions of the terms at issue indicate that Congress made a deliberate policy decision to include as an 'aggravated felony' a drug crime that is a felony under state law but only a misdemeanor under the [Controlled Substances Act]."); United States v. Garcia-Olmedo, 112 F.3d 399, 400-01 (9th Cir.1997) (holding that prior Arizona felony convictions for possession of marijuana that also would have been punishable under 21 U.S.C. § 844(a) constituted aggravated felonies under § 2L1.2(b)(2)); United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir.) (holding that a prior New York felony conviction for possession of cocaine that also would have been punishable under 21 U.S.C. § 844(a) constituted an aggravated felony under § 2L1.2(b)(2)), cert. denied, --- U.S. ----, 117 S.Ct. 218, 136 L.Ed.2d 151 (1996); United States v. Polanco, 29 F.3d 35, 38 (2d Cir.1994) ("Because Polanco's [New York] felony conviction was for an offense punishable under the Controlled Substances Act, one of the statutes enumerated under section 924(c)(2), the offense rises to the level of 'aggravated felony' under section 2L1.2(b)(2) and 8 U.S.C. § 1326(b)(2) regardless of the quantity or nature of the contraband or the severity of the sentence imposed."). Thus, Hinojosa-Lopez's prior conviction constitutes an aggravated felony for purposes of § 2L1.2(b)(2) if (1) the offense was punishable under the Controlled Substances Act and (2) it was a felony.
15
Simple possession of marijuana is punishable under the Controlled Substances Act, albeit as a misdemeanor. 21 U.S.C. § 844(a) (1994). The statute under which Hinojosa-Lopez was convicted in 1991 was the Texas Controlled Substances Act, TEX. HEALTH & SAFETY CODE ANN. § 481.121 (Vernon 1992), which states that the knowing or intentional possession of more than fifty but less than two hundred pounds of marijuana is an "aggravated offense," punishable for a life term or a term of not more than ninety-nine nor less than five years of imprisonment and by a fine not to exceed $50,000.2 Id. § 481.121(d)(1). Aggravated possession of marijuana is a felony under Texas law. See id.; Young v. State, 922 S.W.2d 676, 676 (Tex.App.--Beaumont 1996, pet. ref'd). Thus, for purposes of § 2L1.2, Hinojosa-Lopez's Texas conviction was an aggravated felony because his offense was a felony that also was punishable under the Controlled Substances Act.
16
B. Sufficiency of the Factual Basis Supporting the Guilty Plea
17
Hinojosa-Lopez next argues that his conviction was invalid because the government failed to prove all of the elements of a violation of 8 U.S.C. § 1326. He argues that in order to prove him guilty of violating the statute, the government had to show that he was "arrested and deported" or "excluded and deported." He claims that the proof offered by the government only showed that he was deported and did not reflect whether the deportation was preceded by arrest or exclusion. This argument lacks merit.
18
Federal Rule of Criminal Procedure 11(f) requires that the sentencing court satisfy itself that an adequate factual basis exists to demonstrate that the defendant committed the charged offense. United States v. Adams, 961 F.2d 505, 508 (5th Cir.1992). "The acceptance of a guilty plea is deemed a factual finding that there is an adequate factual basis for the plea." Id. at 509. We will reverse this finding only if it was clearly erroneous. Id.
19
In the instant case, the indictment alleged that Hinojosa-Lopez was both arrested and deported. We have held that, "[i]f sufficiently specific, an indictment or information can be used as the sole source of the factual basis for a guilty plea." Id. In this case, however, the government also summarized the facts surrounding Hinojosa-Lopez's prior arrest and deportation, and Hinojosa-Lopez agreed to the facts as stated by the prosecutor. Indeed the district court was extremely thorough and specifically questioned Hinojosa-Lopez about each fact presented by the government, including his arrest in 1991 prior to his deportation. As a result, we do not think that the factual basis was insufficient to support Hinojosa-Lopez's guilty plea.
III. CONCLUSION
20
For the foregoing reasons, we AFFIRM the judgment of the district court.
1
The government contends that this court should review the district court's application of § 2L1.2(b)(2) only for plain error because Hinojosa-Lopez did not object at sentencing. Hinojosa-Lopez, however, contends that our consideration of this issue is not limited to plain error review. He argues that the fact that the district court itself raised the issue of whether his prior conviction constituted an aggravated felony indicates that the court had an adequate opportunity to consider the issue. Because we conclude that the district court's application of § 2L1.2(b)(2) was correct under either standard of review, we decline to address this issue. We therefore assume, without deciding, that Hinojosa-Lopez adequately preserved this ground of error for appellate review
2
In 1993, the statute was amended to delete subsection (c); possession of more than 50 but less than 200 pounds of marijuana is now denominated a felony in the second degree. See TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(5) (Vernon Supp.1997). A second degree felony is punishable by a sentence of two to twenty years and a fine not to exceed $10,000. TEX. PEN.CODE ANN. § 12.33 (Vernon 1994)
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516 F.3d 1189 (2008)
Jack E. BRADFORD and Colleen Bradford, Plaintiffs-Appellants,
v.
Kent WIGGINS and Scott R. Womack, Defendants-Appellees.
No. 06-4287.
United States Court of Appeals, Tenth Circuit.
February 20, 2008.
*1190 *1191 D. Bruce Oliver, D. Bruce Oliver, L.L.C., Salt Lake City, UT, for Plaintiffs-Appellants.
Linette B. Hutton, Winder & Haslam, P.C., Salt Lake City, UT, for Defendants-Appellees.
Before HENRY, Chief Judge, SEYMOUR, and GORSUCH, Circuit Judges.
PER CURIAM.
Jack E. and Colleen Bradford, faced with the charge of rioting, pleaded nolo contendere in abeyance to the lesser charge of disorderly conduct under Utah Code Ann.1953 § 76-9-102. They then brought suit under 42 U.S.C. § 1983, alleging that Deputies Kent Wiggins and Scott R. Womack unlawfully seized them and caused their unlawful arrest, false imprisonment, and prosecution in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments. They also sought relief pursuant to 42 U.S.C. §§ 1981 and 1981a, along with conspiracy claims pursuant to § 1985(2), and pendent state tort claims.
The District Court granted the deputies' motion for summary judgment, finding that the Bradfords' claims are barred by judicial estoppel and qualified immunity. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm.
I. BACKGROUND
A. Factual Background: The Confrontation Between the Bradfords and the Deputies
On August 16, 2003, Deputy Wiggins observed Debra Bradford, the Bradfords' daughter-in-law, allegedly speeding. Debra refused to stop, despite Deputy Wiggins's lights and siren, and finally pulled into the driveway of the home she shared with her spouse, Michael Bradford (Jack and Colleen Bradford's son). Debra refused to give Deputy Wiggins her driver's license or registration or get out of the car, screaming for Michael, who was inside. Michael, who has a history of weapons and assault offenses, a fact with which local police, including Deputy Wiggins, were familiar, emerged from the house screaming profanities. Deputy Wiggins instructed Michael to return inside, and proceeded to *1192 call for back-up. After Michael returned inside the home, he called his mother, Colleen Bradford, and asked her to come witness the events. Deputy Wiggins's first back-up Deputy Womack and another officer arrived and assisted Deputy Womack in getting Debra out of the car. (DVD, Title 2, dash cam time 20:07:00.[1]) Shortly thereafter, Colleen and Jack Bradford arrived on the scene. By that time, several other armed officers and police vehicles had positioned themselves outside the home.
The videos, officer incident reports, and the Bradfords' plea hearing testimony show that the officers repeatedly ordered the Bradfords to leave. The video also shows the Bradfords animatedly waving their arms as they spoke to the officers about drawing Michael out of the residence. Michael eventually emerged from the home, approaching the officers with his hands in the air, saying, "Shoot me." Aplts' App. at 195 (Plea Hearing, dated Feb. 11, 2004). As Michael approached the police with hands still in the air, an officer then aggressively ran from the back and side of Michael, tackled him, and hand-cuffed him (see id. at 196; DVD, Title 1, 20:21:00). The DVD is not clear, and the parties contest exactly what occurred during Michael's take-down and arrest.
The Bradfords allege that while they were "stunned by the attack [on Michael]" they stepped aside to get a view of Michael and the officer on the ground. Aplt's Br. at 20. "A second later" they allege Deputy Wiggins started pushing them back from the scene, yelling, "Back off, back off, now! You both want to go to jail! . . . Back off!" Id. The Bradfords claim that Deputy Womack helped Deputy Wiggins in restraining them, pushing Colleen to the ground, while Deputy Wiggins body-slammed Jack. They maintain that nothing in the video suggests they "were even remotely tumultuous or violent towards anyone." Id.
Deputies Wiggins and Womack offer a very different version of events. They allege that when Michael was tackled, the Bradfords tried to push their way past the officer's. Aples' Br. at 7. Deputy Womack claims that he extended his arm to prevent Ms. Bradford from getting any closer. They further state that they put Mr. Bradford in a wrist lock and took Ms. Bradford by the elbow and started pulling them away from Michael and the officers arresting him, Ms. Bradford, they claim, resisted and tripped, then fell to her backside on the ground, where another police officer placed her right arm in a twist lock and escorted her to the car. Id. at 7-8. Michael was then placed in the police car for transport, and everyone left the scene.
The dashboard camera videos from Deputy Wiggins's and Deputy Womack's cars are hard to see and have intermittent sound. However, the tapes appear to show Michael calmly coming out of the house with his hands in the air, a police officer tackling him to the ground from behind, and the Bradfords running towards their son and being pushed back, out of frame, by the police. As the district court noted, for the purposes of summary judgment, we review the evidence in the light most favorable to the Bradfords. Simpson v. Univ. of Cola, 500 F.3d 1170, 1179 (10th Cir.2007); Aplts' App. at 402 (Dist. Ct. Order at 2, dated June 16, 2006).
B. Procedural Background: The Bradfords' § 1983 action
The Box Elder County prosecutor filed an information charging the Bradfords with rioting, a third degree felony, in violation *1193 of Utah Code Ann. § 76-9-101. Following their arraignment, on February 11, 2004, the Bradfords entered no contest pleas in abeyance to disorderly conduct, in violation of Utah Code Ann. § 76-9-102. The plea agreement provided that following successful completion of twelve months' probation and payment of a fine, the charges would be dismissed.
At the plea hearing, the court inquired as to what the Bradfords had done wrong. They both admitted albeit less than enthusiastically that they disobeyed officers' commands to leave the area. Mr. Bradford, when asked by the judge what he had done wrong, answered, "I thought we should have left when he asked me, but I did call [Michael] out." Aplt.App. at 196-97. Ms. Bradford stated, "[The police] wanted us to get back in our car and leave. Well I'm sorry, that's my son. I'm not going to leave." Aplt.App. at 197. Thus, both admitted that the police indicated they should have left the scene.
In March 2005, following completion of the terms of the plea agreement, the Bradfords filed this § 1983 action. The Bradfords now contend that the deputies have violated and conspired to violate the Fourth, Fifth, Sixth, and Fourteenth Amendments when the deputies (1) made contact with them; (2) seized them; (3) detained them without reasonable suspicion; (4) caused their arrest/booking without probable cause; and (5) caused their prosecution without probable cause.
On June 23, 2006, the district court granted the deputies' motion for summary judgment, holding the Bradfords' false arrest and baseless prosecution claims barred by judicial estoppel, and their unlawful seizure, detention, and contact claims barred by qualified immunity. The court reasoned that applying judicial estoppel is necessary here to protect the integrity of the courts under Johnson v. Lindon City Corp., 405 F.3d 1065 (10th Cir.2005), because (1) the Bradfords' false arrest and baseless prosecution claims are "clearly inconsistent" with testimony at their plea hearing; (2) the Utah court accepted the Bradfords' plea, so judicial acceptance of their § 1983 claims would "create the perception that either the first or the second court was misled"; (3) the Bradfords "would derive an unfair advantage if not estopped." Aplt's App. at 414-19 (Dist. Ct. Order at 14-19). See Johnson, 405 F.3d at 1069 (citing New Hampshire v. Maine, 532 U.S. 742, 750-51, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)). As to qualified immunity, the district court held that the Bradfords had not met their burden of showing that the deputies violated their constitutional rights. Aplt's App. at 412 (Dist. Ct. Order at 12). Further, the court held that the Bradfords failed to plead sufficient facts to support a Fifth or Sixth Amendment violation and thus dismissed those claims outright; the Bradfords have not challenged this decision.
II. DISCUSSION
On appeal, the Bradfords argue only two issues. They argue first, that judicial estoppel does not bar their false arrest and baseless prosecution claims, because they have consistently claimed innocence, and second, that the deputies are not entitled to qualified immunity as they clearly violated the Bradfords' Fourth Amendment rights.
We review a judicial estoppel decision for abuse of discretion.[2]Eastman v. *1194 Union Pac. R.R. Co., 493 F.3d 1151, 1156 (10th Cir.2007). "A court abuses its discretion only when it makes a clear error of judgment, exceeds the bounds of permissible choice, or when its decision is arbitrary, capricious or whimsical, or results in a manifestly unreasonable judgment" Id.
We review a district court's grant of summary judgment based on qualified immunity de novo, in the light most favorable to the nonmoving party. Ward v. Anderson, 494 F.3d 929, 934 (10th Cir. 2007). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id.
A. Judicial Estoppel of the False Arrest and Baseless Prosecution Claims
As noted, the district court held that judicial estoppel barred the Bradfords' claims of false arrest and baseless prosecution. Until the Supreme Court first held, in New Hampshire v. Maine, 532 U.S. at 749, 121 S.Ct. 1808, that the doctrine is applicable in federal court, the Tenth Circuit had historically rejected judicial estoppel. The case on which the district court relied Johnson v. Lindon City Corp., 405 F.3d 1065 constitutes our first application of the doctrine following the Supreme Court's decision. The facts in Johnson are similar to those in the present case: Two plaintiffs entered pleas in abeyance and, in the course of pleading, admitted to certain facts that they later denied in a § 1983 claim. We held that the plaintiffs were judicially estopped from pursuing their § 1983 case against their arresting officers.
The doctrine of judicial estoppel is based upon protecting the integrity of the judicial system by "prohibiting parties from deliberately changing positions according to the exigencies of the moment." New Hampshire, 532 U.S. at 749-50, 121 S.Ct, 1808. Though there is no precise formula, in order to determine whether to apply judicial estoppel, courts typically inquire as to whether: 1) a party's later position is clearly inconsistent with its earlier position; 2) a party has persuaded a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create "the perception that either the first or second court was misled"; and 3) the party seeking to assert the inconsistent position would derive an unfair advantage if not estopped. Johnson, 405 F.3d at 1069 (citing New Hampshire, 532 U.S. at 750, 121 S.Ct. 1808). "Because of the harsh results attendant with precluding a party from asserting a position that would normally be available to the party, judicial estoppel must be applied with caution." Lowery v. Stovall, 92 F.3d 219, 224 (4th Cir.1996).[3]
*1195 The first inquiry the court must answer is whether the Bradfords' § 1983 claims are clearly inconsistent with an earlier proceeding in this case, the hearing at which they pleaded nolo contendere in abeyance. The first reason for the estoppel in Johnson was that the plea hearing admissions were clearly inconsistent with the § 1983 claims. So too in the Bradfords' case. At the plea hearing, during which they pleaded no contest to disorderly conduct, both Mi. and Mrs. Bradford admitted that the police asked them to leave, and they refused. Mr. Bradford said, "I thought we should have left when he asked me, but I did call [Michael] out." Aplt.App. at 196-97. Mrs. Bradford stated, "They wanted us to get back in our car and leave. Well I'm sorry, that's my son. I'm not going to leave." Aplt.App. at 197. In contrast, in the district court they made no such concessions. In fact, in their § 1983 complaint, the Bradfords claimed that no probable cause existed to arrest them. Aplt's App. at 19 (Complaint, at ¶ 41). Further, and importantly, the Bradfords now explicitly maintain that they "parked and left when ordered to." Aplt's Br. at 41. These claims are clearly inconsistent with their admission at the plea hearing that they refused to leave when ordered to.
Second, a court must determine whether the party has persuaded a court to accept its earlier position so that judicial acceptance of the inconsistent position would create the perception that either the first or the second court was misled. Johnson, 405 F.3d at 1069. The Utah court accepted the Bradfords' plea after specifically inquiring into whether they had refused the deputies' requests to leave. Therefore, acceptance by this court of the inconsistent position the Bradfords now maintain would create the perception that one court or the other was misled.
Finally, we must determine whether the Bradfords would derive an unfair advantage on the deputies if not estopped. Id. We held in Johnson that by entering pleas in abeyance, the plaintiffs received a substantial benefit. Id. at 1070. In exchange for entering pleas in abeyance, the State agreed to substitute disorderly conduct charges for rioting, a third degree felony, and then to dismiss even the disorderly conduct charges as long as the Bradfords successfully completed twelve months' probation and paid a fine. In Johnson, we held that a party who accepts the benefit of a such a plea and then makes inconsistent statements in a subsequent Section 1983 action would derive an unfair advantage if not estopped from pursuing these claims. Id.
As the present case satisfies the three New Hampshire inquiries, the district court did not abuse its discretion in finding that the Bradfords, because of their plea and their plea hearing statements, are judicially estopped from pursuing their Section 1983 claims of false arrest and baseless prosecution in violation of the Fourth and Fourteenth Amendments.
B. Qualified Immunity from the Seizure, Detention, and Contact Claims
In granting summary judgment to the deputies, the district court held that the Bradfords' seizure, detention, and contact claims were barred by qualified immunity. In Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court set forth a definitive test for review of summary judgment motions raising that defense. Under Saucier, we must consider whether "[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer's conduct violated a constitutional right." Id. at 201, 121 S.Ct. 2151. If so, we must then determine *1196 whether the right was clearly established. Id.
In order to answer the threshold question of Saucier, the court must decide whether, if the evidence is taken in the light most favorable to the party asserting the injury, the alleged facts show that the deputies violated the Bradfords' Fourth Amendment rights. The Fourth Amendment protects individuals from "unreasonable searches and seizures." U.S. Const. amend. IV. To establish a violation of the Fourth Amendment in a Section 1983 action, the claimant must demonstrate "both that a `seizure' occurred and that the seizure was `unreasonable.'" Childress v. City of Arapaho, 210 F.3d 1154, 1156 (10th Cir.2000) (citing Brower v. County of Inyo, 489 U.S. 593, 599, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989)).
A Fourth Amendment seizure occurs when a police officer restrains the liberty of an individual through physical force or show of authority. Terry v. Ohio, 392 U.S. 1, 20 n. 16, 88 S.Ct. 1868, 20 ]L.Ed.2d 889 (1968). Assuming, without deciding, that the Bradfords were seized, to establish a Fourth Amendment violation, we must find that the seizure was unreasonable. Brower, 489 U.S. at 599, 109 S.Ct. 1378. In determining reasonableness, courts must look to "the balancing of competing interests." Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th Cir.2001). The determination of reasonableness takes into account that officers are frequently forced to make split-second decisions under stressful and dangerous conditions. While there is no ready test, reasonableness. is determined by balancing "the governmental interest which allegedly justifies official intrusion" against "the constitutionally protected interests of the private citizen." Terry, 392 U.S. at 20-21, 88 S.Ct. 1868.
In this case, the governmental interest at stake was the successful arrest of Michael Bradford. When the Bradfords rushed toward their son upon his arrest, it was reasonable of the officers to make the split-second decision that the Bradfords' actions could possibly interfere with the arrest. Therefore the brief seizure of the Bradfords was reasonable. While the Bradfords' concern for their son's wellbeing may be understandable given how aggressively he was tackled we hold that the deputies' actions were reasonable in light of the totality of the circumstances, and the circumstances were unquestionably escalated by Debra and Michael's behavior.
Having concluded that any seizure that occurred was reasonable and therefore did not violate the Fourth Amendment, we need not address the second Saucier question to determine qualified immunity whether the constitutional right was clearly established. See, e.g., Wilder v. Turner, 490 F.3d 810, 813 (10th Cir.2007) ("If the officer's conduct did not violate a constitutional right, the inquiry ends and the officer is, entitled to qualified immunity."). The answer to the threshold inquiry that a constitutional right was not violated is enough to conclude that the deputies are entitled to qualified immunity from the seizure, detention, and contact claims.
III. CONCLUSION
Accordingly, because this imposition of judicial estoppel was not an abuse of discretion, and since the seizure of the Bradfords was reasonable, we AFFIRM the district court's grant of summary judgment to Deputies Wiggins and Womack.
HENRY, Chief Judge, concurring.
I write separately to note that although we do not decide the issue in the main opinion, in my view, the Bradfords were seized, albeit reasonably.
*1197 A Fourth Amendment seizure occurs when a police officer "restrains [one's] liberty." Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The deputies claim, and the district court agreed, that the test for whether an action constitutes a Fourth Amendment seizure is more specific than the simple "restraint of liberty" rather, they claim, it is whether the plaintiffs felt "free to leave." Aple's Br. at 17-21; Aplt's App. at 409-11 (Dist. Ct. Order at 9-11). The district court held, "A person is seized within the meaning of the Fourth Amendment when a reasonable person would believe that he or she is not free to leave . . . [N]othing in the record indicates to this court that the Bradfords were not free to leave, the touchstone for a Fourth Amendment seizure." Aplt's App. at 409-10, 411 (Dist. Ct. Order at 9-10, 11). The court reasoned that not only were the Bradfords free to leave, they were reportedly ordered to do just that.
However I do not agree that the inquiry is that simple. Seizure does not necessarily imply any physical restraint. See, e.g., United States v. Place, 462 U.S. 696, 712 n. 1, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (Brennan, J. concurring) (noting that although the seizure at issue in Terry was physical restraint, "the Court acknowledged . . . that `seizures' may occur irrespective of the imposition of actual physical restraint."). Under Terry, "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." 392 U.S. at 20 n. 16, 88 S.Ct. 1868 (emphasis added). Ordering the Bradfords to leave and then physically removing them from the scene no doubt restrains their liberty, if the one thing they want to do and otherwise would have the liberty to do is to remain on the premises.
We touched on this issue in Roska ex rel. Roska v. Peterson, 328 F.3d 1230 (10th Cir.2003), addressing the narrow question before the panel, but the "free to leave" inquiry set forth in that case is not always the end of the matter. While it may have been the end of the matter as to the way Roska was argued, read any more broadly than that, the language would be at direct odds with this language from Bostick, which held that whether an individual is "free to leave" is not always dispositive:
The state court erred, however, in focusing on whether Bostick was "free to leave" rather than on the principle that those words were intended to capture. When police attempt to question a person who is walking down the street or through an airport lobby, it makes sense to inquire whether a reasonable person would feel free to continue walking. But when the person is seated on a bus and has no desire to leave, the degree to which a reasonable person would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter. . . .
. . . . Bostick's freedom of movement was restricted by a factor independent of police conduct i.e., by his being a passenger on a bus. Accordingly, the "free to leave" analysis on which Bostick relies is inapplicable. In such a situation, the appropriate inquiry is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter. This formulation follows logically from prior cases and breaks no new ground. We have said before that the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would "have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." *1198 Florida v. Bostick, 501 U.S. 429, 435-37, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)) (emphasis added).
This broad formulation of "the principle that th[e] words [`free to leave'] were intended to capture," might very well cover a case like the Bradfords'. Taking into account all the surrounding circumstances, the Bradfords would not have felt free to ignore the police presence and go about the business of staying in front of their son's home public property. Therefore, it is my view that they were seized under Bostick.
Even if a seizure did occur, as I believe it did, the deputies' actions did not violate the Bradfords' Fourth Amendment rights since that seizure was reasonable.
NOTES
[1] The encounter was taped by the deputies' dash board cameras, and the DVD recording is part of our record.
[2] Most circuits review appeals of summary judgment based on judicial estoppel for abuse of discretion. See, e.g., Abercrombie & Fitch Co. v. Moose Creek, Inc., 486 F.3d 629, 633 (9th Cir.2007); Stephens v. Tolbert, 471 F.3d 1173, 1175 (11th Cir.2006); Thom v. Howe, 466 F.3d 173, 182 (1st Cir.2006); Stallings v. Hussmann Corp., 447 F.3d 1041, 1046 (8th Cir.2006); Jethroe v. Omnova Solutions, Inc., 412 F.3d 598, 599-600 (5th Cir.2005); Lampi Corp. v. Am. Power Prods., Inc., 228 F.3d 1365, 1377 (Fed.Cir.2000); Klein v. Stahl GMBH & Co. Maschinefabrik, 185 F.3d 98, 108 (3d Cir.1999); King v. Herbert J. Thomas Memorial Hosp., 159 F.3d 192, 196 (4th Cir. 1998). But see, Eubanks v. CBSK Fin. Group, Inc., 385 F.3d 894, 897 (6th Cir.2004) (applying a de novo standard).
[3] Applying judicial estoppel both narrowly and cautiously, as we must, we do not hold it to be dispositive that the Bradfords simply entered a no contest plea. See Thore v. Howe, 466 F.3d 173, 187 (1st Cir.2006) (rejecting a per se rule that judicial estoppel always applies or never applies to facts admitted during a guilty plea). Sometimes a civil action following a plea is justified, most commonly when a party's previous position was based on a mistake. Thore, 466 F.3d at 185. But see, Zinkand v. Brown, 478 F.3d 634, 638 (4th Cir.2007) ("(B]ad faith is the determinative factor.") (internal quotation marks omitted). However, though the plea itself is not dispositive, we hold that the Bradfords' plea and their plea hearing statements that they refused the officers' requests to leave are sufficient to justify judicial estoppel in this case.
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692 F.Supp. 1354 (1988)
Harry A. BENDIBURG, Individually and as Administrator of the Estate of Carl Bendiburg, Deceased, Plaintiff,
v.
Pamela S. DEMPSEY, et al., Defendants.
Civ. A. No. 1:87-CV-1774-JOF.
United States District Court, N.D. Georgia, Atlanta Division.
July 14, 1988.
Harold Dennis Corlew, Atlanta, Ga., for plaintiff.
William C. Joy, Victoria H. Tobin, Office of State Atty. Gen., Bruce McCord Edenfield, Hicks, Maloof & Campbell, Atlanta, Ga., Jerry Lovvorn Gentry, Sams Glover & Gentry, Marietta, Ga., Alan F. Herman, Freeman & Hawkins, J. Caleb Clarke, III, Culbreth & Clarke, Earl W. Gunn, Sidney F. Wheeler, Long, Weinberg, Ansley & Wheeler, Lawrie E. Demorest, Ralph Jerry Kirkpatrick, Wendy L. Hagenau, Randall L. Hughes, Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., for defendants.
ORDER
FORRESTER, District Judge.
This matter is before the court on (1) defendant Adventist Health Systems/Sunbelt, *1355 Inc.'s[1] motion for summary judgment, Fed.R.Civ.P. 56; (2) defendant Sallie T. Walker's motion for summary judgment, id.; (3) defendant Walker's motion for imposition of sanctions, Fed.R.Civ.P. 11; and (4) defendant Cobb County's motion to dismiss. Fed.R.Civ.P. 12(b)(6).
Defendant Adventist Health Systems' motion for summary judgment was filed October 23, 1987. By stipulation between the parties filed December 14, 1987, however, defendant Adventist Health Systems was dismissed from this action with prejudice. Accordingly, the motion for summary judgment is now moot and DENIED as such. Defendant Walker's motions for summary judgment and for imposition of sanctions and defendant Cobb County's motion to dismiss shall be considered separately following a recitation of the relevant facts.
I. STATEMENT OF FACTS.
The following facts are based upon the court's review of the relevant pleadings of record as well as the affidavit and deposition testimony and the various exhibits submitted by the parties.
The parties to this action are (1) plaintiff Harry D. Bendiburg who brings this action both in his individual capacity as well as in his capacity as administrator of the estate of his son, Carl Austin Bendiburg (hereinafter "plaintiff's decedent" or "Carl"), Complaint, ¶ 3; (2) defendant Cobb County Department of Family and Children Services (DFACS), an instrumentality of the State of Georgia, id., ¶ 7; (3) defendant Cobb County, a political subdivision of the State of Georgia, id., ¶ 9; (4) defendant Medical Personnel Pool of Atlanta, Inc. (Med Pool), a corporation organized and existing under the laws of the State of Georgia, id., ¶ 11; (5) defendant Drs. Klaus, Cohen and Weil Orthopaedic Associates, P.C., a professional corporation organized and existing under the laws of the State of Georgia, id., ¶ 13; (6) defendant Pamela S. Dempsey, an official of defendant DFACS, id., ¶ 4; (7) defendant Sue Terry, a supervisory official of defendant DFACS, id., ¶ 5; (8) defendant Nancy J. Pendergraft, also a supervisory official of defendant DFACS, id., ¶ 6; (9) defendant Sallie T. Walker, a judicial officer of the Cobb County Juvenile Court, id., ¶ 8; (10) defendant Nancy Harrison, an employee of defendant Med Pool, id., ¶ 10; (11) defendant Richard Cohen, M.D., an employee of defendant Klaus, Cohen and Weil Orthopaedic Associates, id., ¶ 12; and (12) defendant Baheeg Shadeed, M.D., a resident of the State of Georgia, id., ¶ 14. The court's jurisdiction is predicated upon 28 U.S.C. §§ 1331 & 1343. Id., ¶ 2.
This action, in which plaintiff alleges violations of 42 U.S.C. § 1983 as well as the state law tort of battery, arose out of the following series of events. On September 15, 1985, plaintiff's decedent, Carl Bendiburg, was seriously injured in an automobile accident and admitted to the Smyrna Hospital for treatment. Defendant Walker's Statement of Material Facts, ¶ 2; Plaintiff's Statement of Material Facts, ¶ 2. Among the injuries suffered by Carl was a compound fracture of the left leg. On November 9, 1985, Carl was discharged from Smyrna Hospital. Because of a continuing infection of the left leg contracted during his stay in the hospital, however, Carl continued to receive at-home nursing care furnished by defendant Med Pool. Defendant Walker's Statement of Material Facts, ¶ 3; Plaintiff's Statement of Material Facts, ¶ 3. Among the responsibilities of these nurses was to ensure that Carl was administered the proper dosage of antibiotics prescribed for his continuing infection. Id. When the nurses experienced increased difficulty in administering the prescribed medical intravenously,[2] plaintiff was asked to consent to the insertion of a Hickman catheter[3] into Carl which would *1356 allow for direct administration of the anti-biotics. Defendant Walker's Statement of Material Facts, ¶ 5; Plaintiff's Statement of Material Facts, ¶ 5. Plaintiff refused to consent to the procedure. Id.
On November 27, 1985, defendant Harrison, a registered nurse employed by defendant Med Pool, contacted defendant Dempsey of the Cobb County Department of Family and Children Services (DFACS). Defendant Walker's Statement of Material Facts, ¶ 8; Plaintiff's Statement of Material Facts, ¶ 8. Defendant Harrison informed defendant Dempsey of the circumstances regarding Carl's infection, the need for intravenous medication, the perceived need for the Hickman catheter, and plaintiff's refusal to consent to insertion of the Hickman catheter. Id. As a result of this conversation, defendant Dempsey prepared and presented to the Juvenile Court of Cobb County an ex parte deprivation petition pursuant to O.C.G.A. § 15-11-23, et seq. Defendant Walker's Statement of Material Facts, ¶ 9; Plaintiff's Statement of Material Facts, ¶ 9. The petition was originally presented to and to be heard by Judge B. Wayne Phillips of the Cobb County Juvenile Court. Defendant Walker's Statement of Material Facts, ¶ 10; Plaintiff's Statement of Material Facts, ¶ 10. Judge Phillips declined to hear the petition, however, after learning that it involved plaintiff, with whom he was acquainted. Id. For this reason, Judge Phillips directed that the petition instead be presented to defendant Walker.
As will be discussed at length below, defendant Walker's exact legal status is disputed; however, the parties agree that she heard the petition under the title "Judge Pro Tempore" and pursuant to a standing order[4] issued by Judge Phillips July 12, 1985. Defendant Walker's Statement of Material Facts, ¶¶ 11-13; Plaintiff's Statement of Material Facts, ¶¶ 11-13. In any event, after hearing testimony from defendant Dempsey, defendant Walker entered an order granting the ex parte deprivation petition and, in so doing, caused custody of plaintiff's decedent to be placed temporarily in defendant DFACS. Defendant Walker's Statement of Material Facts, ¶ 13; Plaintiff's Statement of Material Facts, ¶ 13. Pursuant to this order, Carl was readmitted to Smyrna Hospital where the controversial Hickman catheter was inserted. Defendant Walker's Statement of Material Facts, ¶ 15; Plaintiff's Statement of Material Facts, ¶ 15. Carl was released from Smyrna Hospital November 29, 1985. On December 2, 1985, custody of Carl was restored to plaintiff by and through a consent agreement between plaintiff and defendant DFACS. Complaint, ¶ 27. On December 14, 1985, Carl died as a result of a massive pulmonary embolus.[5]Id., ¶¶ 28-30. This action followed.
II. DISCUSSION
A. Defendant Walker's Motion for Summary Judgment.
1. Fed.R.Civ.P. 56.
Before turning to the merits of defendant Walker's motion for summary judgment, the court will set forth the standard controlling practice under Fed.R.Civ.P. 56. Courts may grant motions for summary judgment when "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the burden of demonstrating that no genuine issue of material fact exists in the case. Hines v. State Farm Fire & Casualty Company, 815 F.2d 648 (11th Cir.1987). This burden may be discharged by demonstrating that *1357 there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether this burden is met, courts should review the evidence of record and all factual inferences in the light most favorable to the party opposing the motion. Hines. Summary judgment should be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex.
2. Judicial Immunity.
Plaintiff concedes "that if [defendant Walker] was in fact a legally appointed judge pro tempore of the Juvenile Court of Cobb County, then she is entitled to judicial immunity and the action against her must be dismissed." Response at 1. It is plaintiff's contention, however, that defendant Walker was not a lawfully appointed judge pro tempore and therefore is not immune from damages in this action. In this regard, plaintiff presents two arguments. First, plaintiff argues that Judge Phillips' July 12, 1985 standing order by which defendant Walker was appointed was entered without regard to the statutory framework established for such appointments and thus is a nullity. Second, it is argued that regardless of the validity of the July 12, 1985 standing order, jurisdiction over the Bendiburg matter was never vested in defendant Walker because Judge Phillips improperly declined to hear the petition himself.
(a) The July 12, 1985 Standing Order.
As mentioned above, it is plaintiff's contention that Judge Phillips' July 12, 1985 standing order by which defendant Walker was appointed judge pro tempore is of no legal effect. As a consequence, the argument goes, defendant Walker's granting of defendant DFACS' ex parte deprivation petition was effected in the complete absence of jurisdiction over the matter. It is for this reason that plaintiff contends defendant Walker is not entitled to judicial immunity for the alleged unconstitutional deprivation of plaintiff's parental rights.[6]
The court's consideration of this matter must necessarily begin with O.C.G.A. § 15-11-63. This code section provides,
In the event of the disqualification, illness, or absence of the judge of the juvenile court, the judge of the juvenile court may appoint any attorney at law resident in the judicial circuit in which the court lies, any judge or senior judge of the superior courts, or any duly appointed juvenile court judge to serve as judge pro tempore of the juvenile court. In the event the judge of the juvenile court is absent or unable to make such appointment, the judge of the superior court of that county may so appoint. The person so appointed shall have the authority to preside in the stead of the disqualified, ill or absent judge....
Judge Phillips' July 12, 1985 order, expressly entered pursuant to section 15-11-63, provides in relevant part,
Sallie T. Walker is hereby appointed as judge pro tempore in the absence of the judge of the Juvenile Court of Cobb County, Georgia, to serve during any period of disqualification, illness, or absence of the undersigned and to fully act in the happening of such an event in the place of the undersigned in any and all matters within the jurisdiction of this court.
Phillips Depo., Exhibit P-109.
Plaintiff argues that this order purports to create the permanent position of judge pro tempore, an act which section 15-11-63 does not authorize. Defendant Walker, on the other hand, argues that the juvenile court judge's inherent power "to carry on its business" carries with it the authority to issue the standing order in question, and cites the obvious benefits of giving effect to such an order.[7] Thus, the first question *1358 the court must address is whether defendant Walker was appointed to hear the Bendiburg matter in a manner inconsistent with state law.
For the proposition that unless a temporary judge is appointed in strict compliance with state law, he is wholly without jurisdiction to act, plaintiff cites the opinions of the Georgia Supreme Court in Chambers v. Wynn, 217 Ga. 381, 122 S.E.2d 571 (1961); Adams v. Payne, 219 Ga. 638, 135 S.E.2d 423 (1964); and Trammell v. Trammell, 220 Ga. 293, 138 S.E.2d 562 (1964), as well as of the Georgia Court of Appeals in Bedingfield v. First National Bank, 4 Ga.App. 197, 61 S.E. 30 (1908) and Lamas v. Baldwin, 128 Ga.App 715, 197 S.E.2d 779 (1973). In Chambers, Adams, and Trammell, the Georgia Supreme Court was confronted with judgments, orders and other judicial acts entered by superior court judges emeritus. The state law in effect at the time of these cases provided for four ways in which a judge emeritus could assume jurisdiction to hear a particular case: (1) appointment by the Governor in the event the judge is "unable to serve;" (2) when selected by the litigants; (3) when selected by the clerk of court; and (4) when appointed by the judge in writing and for a specified time, place and duration.[8] In all three instances, the judge emeritus was not appointed in strict compliance with the appropriate legislation. In Adams, the judge emeritus had been requested to serve by a superior court judge. This request, however, was not made in writing and further failed to specify the time, place and duration of the service. Similarly, in Trammell, the judge emeritus had been appointed to serve by the Governor in the place of a disqualified judge. The Governor further appointed the judge emeritus to hear any other matters arising while he served on the bench. Noting that the applicable statute allowed the Governor to make such appointments only where a particular judge "is unable to serve," the court held the latter portion of the Governor's appointment to be invalid.[9] In all three cases, the judicial acts taken by the improperly appointed judges emeritus were ruled nullities for want of jurisdiction.
In Bedingfield and Lamas, the court of appeals was confronted with improperly appointed judges pro hac vice. The law in effect when Bedingfield was decided provided for the appointment of such judges either by request of the litigants or by the clerk of court. When the court of appeals was made aware that the judge pro hac vice in that case has been appointed by the trial judge, the judgment appealed from was ruled to be void as having been rendered in the complete absence of jurisdiction. By the time Lamas was decided, the pertinent law had been changed to allow for the appointment of a judge pro hac vice by the chief judge to preside over a pending case whenever necessary by reason of the disqualification of the judge. Despite the clear wording of this law, the chief judge appointed an attorney judge pro hac vice to hear cases arising while several judges were absent from the circuit. Again, the court of appeals vacated all judicial acts taken by the improperly appointed judge pro hac vice on the grounds of lack of jurisdiction.
To the extent that plaintiff cites the above authorities for the proposition that temporary judges improperly appointed are without jurisdiction to act, the court agrees. The court does not find these cases dispositive of the case at bar, however. All five cases describe judicial appointments made in complete disregard for the clear requirements of the laws in effect at the relevant time. In the present case, the challenged judicial appointment was expressly made pursuant to the appropriate statute; i.e., O.C.G.A. § 15-11-63. Furthermore, by its own terms, the July 12, 1985 standing order limits defendant Walker's authority to act judge pro tempore to those instances specifically provided for in section 15-11-63. Thus, it cannot be said that Judge Phillips purported to exercise *1359 more authority in executing this order than the law of Georgia allows. That the entry of a standing order is not provided for within the text of section 15-11-63 is of no consequence; it was merely the means chosen by Judge Phillips to give effect to the purpose behind the statute when the appropriate time arose. Though termed a "standing order" by the parties, the July 12, 1985 order was expressly made effective only in the event of Judge Phillips' "disqualification, illness or absence" and thus tracks the exact language of section 15-11-63. It provides for no other circumstances under which defendant Walker could assume the role of judge pro tempore and thus clearly does not purport to create an additional judgeship or any other office within the Cobb County Juvenile Court system. For these reasons, the court finds that Judge Phillips' July 12, 1985 order by which defendant Walker was appointed judge pro tempore over the Bendiburg matter was entered in full compliance with the terms of O.C.G.A. § 15-11-63.
(b) Judge Phillips' "Disqualification."
Plaintiff argues in the alternative that, regardless of whether the July 12, 1985 standing order was entered in compliance with section 15-11-63, defendant Walker was never vested with jurisdiction to hear the Bendiburg petition because no statutory condition precedent to her appointment occurred. Specifically, it is argued that Judge Phillips' decision not to hear the petition was not the legal equivalent of a "disqualification"[10] and thus defendant Walker's appointment to preside over the Bendiburg matter was a nullity. Plaintiff asserts that the court must distinguish "between a judge disqualifying himself, a legal act which must be predicated upon legal grounds, and a judge simply declining to hear the matter for personal reasons." Response at 14.
As previously mentioned, Judge Phillips' asserted reason for declining to hear the deprivation petition was that he was acquainted with plaintiff. Plaintiff argues that by this decision, Judge Phillips violated "the long standing rule that a judge has a duty to perform the judicial role mandated by statute and that he cannot voluntarily recuse himself without a legal basis for disqualification." Response at 15 (citations omitted). It is further argued that "merely knowing the party does not disqualify a judge." Id. The court agrees in principle with both of these propositions. As will be seen, however, Judge Phillips' decision not to hear the Bendiburg petition does have a legal basis which goes beyond being a mere acquaintance of a party to the action. Judge Phillips testifies as follows:
As a result of Mr. Bendiburg's and my past professional relationship, he, as a magistrate and I, as chief magistrate of the Cobb Judicial Circuit, I was concerned as to whether my impartiality might reasonably be questioned. I had not reappointed Mr. Bendiburg as a magistrate when his term ended due to certain problems I had with him in carrying out his duties, and had several confrontations with him about how and when he was to carry out his duties. (Emphasis supplied).
Phillips Aff., ¶ 6.[11] The portion of Judge Phillips' testimony underscored above indicates that his decision not to hear the Bendiburg matter was based upon the language of Canon 3(C)(1)(a) of the Georgia Code of Judicial Conduct,[12] which provides, "a judge should[13] disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party.... (Emphasis supplied)."
In light of the undisputed evidence of record wherein the past relationship between *1360 Judge Phillips and plaintiff is described, the court finds that Canon 3(C)(1)(a) of the Georgia Code of Judicial Conduct provides a sufficient legal basis for Judge Phillips' decision not to hear the Bendiburg petition. It follows, therefore, that Judge Phillips' decision constituted a legal disqualification and thus satisfied the requirements of section 15-11-63 and the July 12, 1985 standing order. Accordingly, the court finds that defendant Walker was a lawfully appointed judge pro tempore of the Juvenile Court of Cobb County when she entered the November 27, 1985 order granting defendant DFACS' ex parte deprivation petition and, as such, is entitled to full judicial immunity for her actions. Dykes v. Hosemann, 776 F.2d 942 (11th Cir.1985). For this reason, defendant Walker's motion for summary judgment is GRANTED.
B. Defendant Walker's Motion for Imposition of Sanctions.
Defendant Walker seeks the imposition of sanctions against plaintiff on the grounds that the facts available to him prior to instigation of this action sufficiently demonstrated that defendant Walker is immune from damages liability for her actions taken as judge pro tempore. While the foregoing analysis illustrates that the court agrees with defendant Walker's judicial immunity defense, the court finds that plaintiff's prosecution of this action does not rise to the level of a Rule 11 violation. The case law cited by plaintiff and discussed supra, as well as the arguments based thereon provide a certain measure of support for plaintiff's theory of liability against defendant Walker. For this reason, defendant Walker's motion for imposition of sanctions is DENIED.
C. Defendant Cobb County's Motion to Dismiss.
1. Fed.R.Civ.P. 12(b)(6).
Defendant Cobb County moves to dismiss on the grounds that plaintiff's complaint fails to state a claim against it upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Under Rule 12(b)(6), the burden of demonstrating that no claim has been stated is upon the movant. Jackam v. HCA Mideast, Ltd., 800 F.2d 1577 (11th Cir.1986). In addition, the court must construe the complaint liberally in favor of the plaintiff, taking the facts as alleged as true; all reasonable inferences are made in favor of the plaintiff. Blum v. Morgan Guaranty Trust Company of New York, 709 F.2d 1463 (11th Cir.1983). Unless it is clear that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief, defendant Cobb County's motion to dismiss must be denied. Jackam.
2. Municipal Liability.
The Supreme Court has determined that local governments may be the targets of section 1983 actions where official policy or governmental custom is responsible for deprivation of rights protected by the Constitution. Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In this regard, plaintiff contends that defendant Cobb County has a custom or policy of depriving parents of their parental rights without due process of law and further that this custom or policy is executed by the defendant county through the juvenile court system acting through defendant Walker. As grounds for its motion to dismiss, defendant Cobb County argues that defendant Walker, acting as judge pro tempore of the Juvenile Court of Cobb County, is a state official and not an official of Cobb County and thus there exists no nexus between the Cobb County Juvenile Court and the county itself. The grant or denial of defendant Cobb County's motion to dismiss thus turns on whether under Georgia law, defendant Walker is a county official for the purposes of municipal liability within the meaning of Monell and its progeny. See Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 1300, 89 L.Ed.2d 452 (1986) (whether an official is a final policy making authority is a question of state law); City of St. Louis v. Praprotnik, ___ U.S. ___, ___, 108 S.Ct. 915, 922, 99 L.Ed.2d 107 (1988) (the *1361 identification of policy making officials is a question of state law).
In support of its argument that defendant Walker is a state official, defendant Cobb County first points to several provisions of the Constitution of the State of Georgia. Specifically, it is noted that counties are prohibited from taking any action affecting any court, including the juvenile court, or the personnel thereof. Constitution of the State of Georgia, Article 9, Section 2, ¶ 1(c)(7), and further that the judicial power of the State of Georgia is expressly vested in several classes of courts, including the juvenile courts. Id., Article 6, Section 1, ¶ 1. It is likewise noted that the Georgia Constitution provides for the juvenile courts to have "uniform jurisdiction, powers, rules of practice and procedure, and selection, qualification, terms and discipline of judges." Id., Article 6, Section 1, ¶ 5. Finally, defendant Cobb County points out that O.C.G.A. § 15-11-1, et seq., entitled "judicial proceedings," provides for (1) the creation of a juvenile court in each county, O.C.G.A. § 15-11-3(a); (2) the appointment of juvenile court judges by the appropriate superior court, O.C.G.A. § 15-11-3(b); and (3) the appointment of clerks and other personnel by the juvenile court judge. O.C.G.A. § 15-11-9. These enactments, it is argued, are consistent with the above-described constitutional provisions and show further that defendant Walker was at all relevant times a state officer.
Plaintiff likewise relies upon certain aspects of the Georgia juvenile court system in support of his position that defendant Walker is a county official. In particular, plaintiff notes that, like other county officials, a juvenile court judge's salary, as well as that of a judge pro tempore, is paid from the county treasury. County Code Section 2-5-38; O.C.G.A. § 15-11-63. Similarly, plaintiff points out that a juvenile court judge's compensation is set by the superior court with the approval of the governing authority of the county. O.C.G. A. § 15-11-3(d)(1). In addition, a juvenile court judge is appointed by "the judge or a majority of the judges of the superior court" in the circuit in which the county is situated. O.C.G.A. § 15-11-3(b). Indeed, defendant Walker herself was appointed by a duly appointed judge of the Cobb County Juvenile Court. Finally, it is noted that (1) all expenditures of the juvenile court are "payable out of the county treasury with the approval of the governing authority ... of the county," O.C.G.A. § 15-11-3(i); (2) the compensation of the juvenile court employees are fixed by the juvenile court judge with county approval, O.C.G.A. § 15-11-9; (3) the salaries of such employees are paid out of county funds, id; (4) all such employees are appointed by the juvenile court judge "from eligible lists secured from the local merit boards in the county," id; and (5) the appointment, salary, tenure and all other conditions of employment of the employees [are] in accordance with the laws and regulations governing the [county] merit system. Id.
In further support of his argument, plaintiff cites the Fifth Circuit Court of Appeals opinion in Crane v. State of Texas, 766 F.2d 193 (5th Cir.1985). In Crane, the issue before the court was whether a district attorney was an officer of the State of Texas or of the county in which he served. The court first noted that,
A Texas district attorney has numerous ... attributes of a state official. [T]he geographic extent of his office's authority is created by a specific state statute for each territory within the state, some few of which comprise more than one county. In the event of a vacancy in his office, the Governor appoints his interim successor. His bond for faithful performance of his duties was to the Governor of the state. The state administrative body, the prosecutor's counsel, exists to discipline and assist the holders of his office. The district attorney is required by statute to make reports to the state attorney general upon his request. His office is created by ... the state constitution.... (Citations omitted).
Crane at 194-95. Despite these significant elements of state office, the court was more impressed that (1) a Texas district attorney is elected by the voters of his district, usually one county; (2) a district *1362 attorney's powers and duties are limited to the territory of his district; (3) a district attorney is paid by county funds, though the county is partly reimbursed by the state; and (4) the fact that the office of the district attorney is created by the state constitution is diminished by the fact that other local offices and the county itself are similarly created by the Texas Constitution. Id. at 195. Based on these facts, the court concluded that the Texas district attorney was "properly viewed as a county official." Id.
The court finds Crane unpersuasive. It is strictly an application of Texas law and plaintiff makes little attempt at drawing pertinent comparisons between the state law relied upon by the Fifth Circuit and the law of the State of Georgia. In any event, one court in this district has recently had occasion to hold that, under Georgia law, a district attorney is a state, rather than county, official. Owens v. Fulton County, 690 F.Supp. 1024 (N.D.Ga.1988) (Hall, J.). In so holding, Judge Hall effectively distinguished the Crane opinion and noted several significant differences between Texas and Georgia law. For these reasons, the court declines to follow the Fifth Circuit Court of Appeals and instead, for the reasons set forth below, finds that defendant Walker, in her capacity as judge pro tempore of the Juvenile Court of Cobb County, is an officer of the State of Georgia. As will be seen, this conclusion rests on the various state constitutional and statutory provisions which establish and define both the judicial power and the political subdivisions of the State of Georgia.
By legislative enactment, the State of Georgia is divided into 159 counties. O.C. G.A. § 36-1-1. The power of the General Assembly to create and define the state's counties is derived generally from Article III of the Constitution of the State of Georgia (legislative power) and specifically from Article IX (counties and municipal corporations). Thus created by the state, counties can exercise no powers not conferred upon them by the state. As the Georgia Supreme Court has stated, "Counties can exercise only such powers as are conferred on them by law, and a county can exercise no powers except such as are expressly given or necessarily implied from express grant of other powers." DeKalb County v. Atlanta Gas Light Company, 228 Ga. 512, 513, 186 S.E.2d 732 (1972). See also McCray v. Cobb County, 251 Ga. 24, 27, 302 S.E.2d 563 (1983) (county only has the powers given to it by the legislature). This is a state constitutional principle: "Each county shall [have] such powers and limitations as are provided in this constitution and as provided by law." Constitution of the State of Georgia, Article IX, section 1, para. 1.[14] In the context of defendant Cobb County's motion to dismiss, the following limitation on the power of a county is most significant: "The power granted to counties ... shall not be construed to extend to ... action affecting any court [including the juvenile court] or the personnel thereof." Id., Article IX, section 2, para. 1(c)(7).
The manner in which the counties and the judicial system of the State of Georgia coexist and interrelate likewise leads to the conclusion that a juvenile court judge pro tempore is a state official. All courts of the State of Georgia, including the juvenile courts, are components of a unified state judicial system. Id., Article VI, section 1, para. 2. "The judicial power of the state [is] vested exclusively in" these courts, id., Article VI, section 1, para. 1, and each has "uniform jurisdiction, powers, [and] rules of practice and procedure." Id., Article VI, section 1, para. 5. In regard to the relationship between these courts and the several counties of the State of Georgia, it is provided that "the state shall be divided into judicial circuits, each of which shall consist of not less than one county. Each county shall have at least one superior court ... and, where needed, a juvenile *1363 court."[15]Id., Article VI, section 1, para. 6. This paragraph does no more than provide for the orderly arrangement of the several courts of the state; no right of power, control or authority over the courts situated within their boundaries is thereby conferred upon the counties. It is thus clear that the judicial acts of a judge sitting within a particular county are the exercise of the judicial power of the state and are taken by authority of an office created by the state. Put another way, when defendant Walker entered the order granting the controversial ex parte deprivation petition, she did so pursuant to the judicial power of the state as vested within the Juvenile Court of Cobb County and in her capacity as judge pro tempore of the Juvenile Court of Cobb County, an office created by state law. This fact, coupled with the limitations expressly placed upon the counties with regard to "action affecting any court or the personnel thereof," clearly indicates that the several courts of the State of Georgia, including the juvenile courts, are organs of the state and that their judicial officers are state officials. That such responsibilities as compensating and approving the amount of compensation of a juvenile court judge fall on the counties is of no consequence; such provisions constitute no more than allocations of fiscal and other administrative responsibilities to the counties,[16] and no right of control or other power over the juvenile courts is expressly or impliedly conferred upon them.
In sum, the court concludes that defendant Walker, in her capacity as judge pro tempore of the Juvenile Court of Cobb County, is an officer of the State of Georgia. As such, it is clear that she cannot be the "official policymaker" responsible for establishing the alleged unconstitutional custom or policy on behalf of defendant Cobb County. Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1300, 89 L.Ed.2d 452 (1986). Inasmuch as this is the sole basis of plaintiff's theory of liability against defendant Cobb County, defendant Cobb County's motion to dismiss for failure to state a claim is GRANTED.
III. CONCLUSION
In sum, defendant Adventist Health Systems/Sunbelt, Inc.'s motion for summary judgment is DENIED as moot. Defendant Walker's motion for summary judgment is GRANTED. Defendant Walker's motion for imposition of sanctions is DENIED. Defendant Cobb County's motion to dismiss is GRANTED.
NOTES
[1] D/b/a Smyrna Hospital.
[2] Due to loss of venous access or collapsed veins.
[3] This device is described as "a long silicone rubber catheter which is inserted into either the subclavian (collarbone) or jugular (neck) vein and then threaded through the patient's upper venous system to the juncture of the superior vena cava and the right atrium of the patient's heart." Plaintiff's Response to Defendant Shadeed's Motion for Summary Judgment at 4.
[4] This standing order served to appoint defendant Walker as judge pro tempore of the juvenile court in the event Judge Phillips was ill or absent or was disqualified from hearing a particular case. Plaintiff challenges Judge Phillips' authority to enter such a standing order and therefore defendant Walker's jurisdiction to hear the petition in question. Plaintiff likewise challenges the manner in which Judge Phillips "disqualified" himself from hearing the Bendiburg petition. These issues shall be discussed infra.
[5] "A clot or other plug brought by the blood from another vessel and forced into a smaller one, thus obstructing the circulation." Dorland's Illustrated Medical Dictionary, 25th Edition (1974).
[6] For the purposes of this order only, the court will assume that this latter portion of plaintiff's theory of liability against defendant Walker is accurate. The court wishes to point out, however, that it has found and plaintiff has cited no authority for the proposition that judicial acts taken in the absence of jurisdiction necessarily fall outside the scope of judicial immunity.
[7] E.g., the avoidance of unnecessary delay.
[8] This latter method of appointing a judge emeritus was apparently not available until soon after the opinion in Chambers was entered.
[9] The Chambers court did not specify why the appointment in that case was improper.
[10] Or, for that matter, of an "illness" or "absence."
[11] Attached as Exhibit C to the present motion.
[12] The text of the Georgia Code of Judicial Conduct is located in the Appendix of Volume 231 of the Georgia Reports.
[13] The word "should" has been interpreted by the Georgia courts to mean "shall." Savage v. Savage, 234 Ga. 853, 218 S.E.2d 568 (1975) (cited by defendant Walker).
[14] The authority of the General Assembly to "broaden, limit, or otherwise regulate" the county's exercise of the powers conferred upon them is likewise recognized. Id., Article IX, section 2, para. 1.
[15] O.C.G.A. § 15-11-3(a) establishes a juvenile court in every county.
[16] In any event, the State of Georgia contributes toward the salaries of juvenile court judges. O.C.G.A. § 15-11-3(d)(1).
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753 F.Supp.2d 1163 (2010)
Jonathan Paul BOYD, Plaintiff,
v.
Carol H. STECKEL, in her official capacity as Commissioner of the Alabama Medicaid Agency, Defendant.
Case No.: 2:10-cv-688-MEF.
United States District Court, M.D. Alabama, Northern Division.
November 12, 2010.
James Patrick Hackney, James Arnold Tucker, Lonnie Jason Williams, Alabama Disabilities Advocacy Program, Tuscaloosa, AL, Stephen F. Gold, Attorney at Law, Philadelphia, PA, for Plaintiff.
James William Davis, Margaret Lindsey Fleming, Misty S. Fairbanks, William G. Parker, Jr., State of Alabama, Office of the Attorney General, Stephanie McGee Azar, *1164 The Alabama Medicaid Agency, Montgomery, AL, for Defendant.
MEMORANDUM OPINION AND ORDER
MARK E. FULLER, Chief Judge.
This cause is before the Court on the Amended Motion for Preliminary Injunction and Expedited Hearing, (Doc. #15), filed on September 29, 2010 by Plaintiff Jonathan Paul Boyd ("Boyd"). The Court has carefully considered all submissions and argument in support of and in opposition to the motion and has convened a hearing on the matter. For the reasons set forth below, the motion for a preliminary injunction is due to be DENIED.
JURISDICTION AND VENUE
This Court has jurisdiction over the case pursuant to 28 U.S.C. §§ 1331 and 1334(a). Declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202 as well as Federal Rule of Civil Procedure 65. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) because Defendant Carol H. Steckler, in her official capacity as Commissioner of the Alabama Medicaid Agency ("Commissioner Steckel"), resides in this district.
FACTS[1] AND PROCEDURAL HISTORY
On September 29, 2010, Boyd sued Commissioner Steckel for alleged violations of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, as well as its implementing regulations, and violations of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and its implementing regulations. (Doc. #14, at 11-12, ¶¶ 57, 60). Specifically, Boyd alleges that Commissioner Steckel has failed to properly assess and provide the Medicaid services needed to permit Boyd to live in the community, as opposed to the nursing home in which he resides. Id. at 12-13, ¶¶ 58, 61. On September 29, 2010, Boyd also filed an Amended Motion for Preliminary Injunction and Expedited Hearing. (Doc. #15). This motion was granted to the extent that it sought an expedited hearing. (Doc. #17). On October 12, 2010, the United State of America filed a statement of interest and brief in support of Boyd's motion for a preliminary injunction. (Doc. #25). The hearing for the preliminary injunction motion was held on October 13, 2010.
A. Medicaid
Title XIX of the Social Security Act of 1965 established Medicaid. 79 Stat. 343, as amended, 42 U.S.C. §§ 1396 et seq. "Medicaid is a joint [S]tate-[F]ederal funding program for medical assistance in which the Federal Government approves a[S]tate plan for the funding of medical services for the needy and then subsidizes a significant portion of the financial obligations the State has agreed to assume." Alexander v. Choate, 469 U.S. 287, 289 n. 1, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). Medicaid is a voluntary program whereby the States need not participate. Id. However, should a State choose to participate, then it "must comply with the requirements of Title XIX and applicable regulations." Id.
Under the Medicaid Act, states may choose to operate home and community-based waiver programs for individuals to avoid institutionalization. 42 U.S.C. § 1396n(c). Pursuant to this section:
The Secretary may by waiver provide that a State plan approved under this title may include as `medical assistance' under such a plan payment for part or *1165 all of the cost of home or community-based services (other than room and board) approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility ... the cost of which could be reimbursed under the State plan.
Id. § 1396n(c)(1). Such waiver programs "are intended to provide the flexibility needed to enable States to try new or different approaches to the efficient and cost-effective delivery of health care services, or to adapt their programs to the special needs of particular areas or groups of recipients." 42 C.F.R. § 430.25(b). However, these waiver programs must be cost-neutral in the aggregatei.e. the cost of operating the waiver system must not exceed what the cost would be to provide Medicaid services without the waiver program. 42 U.S.C. § 1396n(c)(2)(D) ("[U]nder such [a] waiver the average per capita expenditure estimated by the State in any fiscal year for medical assistance provided with respect to such individuals does not exceed 100 percent of the average per capita expenditure that the State reasonably estimates would have been made in that fiscal year for expenditures under the State plan for such individuals if the waiver had not been granted ...."); see also 42 C.F.R. § 441.302(e)-(f).
The Medicaid Act also provides that States may deviate from certain other Medicaid requirements. 42 U.S.C. § 1396n(c)(3). For example, an approved waiver program may also include a waiver of the Medicaid requirements of "statewideness," "comparability," and "income and resource rules applicable in the community." Id. More specifically, under the applicable federal regulations, "the State may exclude those individuals [from waiver programs] for whom there is a reasonable expectation that home and community-based services would be more expensive than the Medicaid services the individual would otherwise receive." 50 Fed. Reg. 10,013 (Mar. 13, 1985). Similarly, the State "can choose to provide home and community-based services to a limited group of eligibles, such as the developmentally disabled" and need not "provide the services to all eligible individuals who require an ICF [intermediate care facility] or SNF [skilled nursing facility] level of care." Id.
The Medicaid statutes and regulations also provide for caps on the number of persons served under a waiver program for a given yearthat is, they "contemplate that State waiver plans will limit the number of eligible participants in any year." (Doc. #20, at 23) (citing 42 U.S.C. § 1396n(c)(9) ("In the case of any waiver under this subsection which contains a limit on the number of individuals who shall receive home or community-based services, the State may substitute additional individuals to receive such services to replace any individuals who die or become ineligible for services under the State plan."); 42 C.F.R. § 441.303(f)(6) ("The State must indicate the number of unduplicated beneficiaries which it intends to provide waiver services in each year of its program. This number will constitute a limit on the size of the waiver program unless the State requests and the Secretary approves a greater number of waiver participants in a waiver amendment.") (emphasis added)).
B. Alabama's Waiver Programs
The State of Alabama ("Alabama") has chosen to participate in Medicaid and to provide certain waiver programs. (Doc. #20, at 20). Currently, Alabama operates six waiver programs with varying purposes, qualifying criteria, services provided, *1166 and enrollment limits: (1) the Elderly & Disabled ("E & D") Waiver; (2) the Intellectual Disabilities ("ID") Waiver;[2] (3) the Living at Home ("LAH") Waiver;[3] (4) the State of Alabama Independent Living ("SAIL") Waiver; (5) the HIV/AIDs Waiver;[4] and (6) the Technology Assisted ("TA") Waiver for Adults.[5] Doc. #20, at 24-25; see also Doc. #16 Ex. D.
The SAIL Waiver program provides numerous services for persons with specific medical diagnoses, which includes quadriplegia. Doc. #16 Ex. D. Such services include personal care, personal assistance service, environmental accessibility adaptations, medical supplies, and assistive technology. Id. However, there are limitations on the extent of such services. For example, "reimbursement for in-home personal care and assistance is limited to 25 hours per week." (Doc. #19 Ex. C, Chappelle Aff. ¶ 13). Moreover, while personal care is covered to some extent under the SAIL waiver, "skilled nursing care is not available at all under the SAIL Waiver...." Id. The SAIL Waiver program is capped at 660 persons, although the record is unclear as to whether the program is full.
The E & D Waiver program also provides numerous services "to individuals that would otherwise require the level of care available in an intermediate care facility." (Doc. #16 Ex. D). Such services include case management, homemaker services, personal care, adult day health, and respite care (skilled and unskilled). Id. As with the SAIL waiver, there are limitations on the extent of these services. For example, "`skilled' care (provided by a nurse or other health-care professional), is not available on a regular basis under the E & D Waiver, but may only be provided as respite care (relief for a regular caregiver)." (Doc. #19 Ex. C, Chappelle Aff. ¶ 14). Additionally, this respite care is limited to 720 hours per year. Although there is no hourly limit on homemaker services, personal care and adult companion services, these "would not include administration of medicine...." Id. The E & D Waiver is capped at 9,205 people and has remained at the cap since 2008. (Doc. #16, at 5). Additionally, according to the Kaiser Commission, there are over 7,000 persons on the E & D Waiver waiting list. Id.
C. Boyd's Facts
According to the Amended Complaint, Boyd is a 34 year-old man who became paralyzed after an accident in October of 1995, which broke his spine and rendered him tetraplegici.e. leaving him without the use of his arms and legs. (Doc. #14, at 1, ¶ 1-2; Doc. #20, at 8). Following his accident, Boyd lived with his mother and stepfather for eleven years, with his mother acting as his primary care giver. (Doc. #14, at 1, ¶ 3; Doc. #20, at 8). During this time, Boyd "was eligible for and received community-based Medicaid waiver services to complement the care being provided *1167 by his mother." (Doc. #14, at 1, ¶ 3; Doc. #20, at 8). However, after his mother was no longer able to provide the required care, Boyd entered the nursing facilityChandler Health and Rehab Center in Alabaster, Alabamawhere he has lived since December of 2006. (Doc. #14, at 1, ¶ 3; Doc. #20, at 8). Because community-based services and reimbursement for nursing home care are mutually exclusive alternatives, the community-based Medicaid waiver services were discontinued when Boyd entered the nursing facility. (Doc. #14, at 4, ¶ 19; Doc. #20, at 8-9).
Currently, Boyd is eligible for and receives Medicaid, which pays for his nursing home services. (Doc. #14, at 4, ¶ 20; Doc. #20, at 9). For ambulation, Boyd uses a motorized wheelchair which he controls with a "sip and puff" device. (Doc. #14, at 4, ¶ 21). At the nursing home, Boyd "receives assistance with his activities of daily living, including assistance with taking medications, bathing, dressing, toileting, feeding, and transferring from and to his bed and into and out of his wheelchair." Id. at 4-5, ¶ 22. He also receives assistance with basic household chores, for his bowel program (twice weekly), and for changing his catheter (twice monthly). Id.
After his accident, Boyd returned to college and graduated in 2007 with a bachelor of fine arts from the University of Montevallo. (Doc. #14 at 5, ¶ 25; Doc. #20, at 9). His nursing home is 13 miles from the university. (Doc. #14, at 5, ¶ 27). While earning his bachelor's degree, Boyd took public transportation (ClasTran) to and from classes. (Doc. #14, at 5, ¶ 27; Doc. #20, at 9). The Alabama Department of Rehabilitation Services ("Rehab Services") paid for this use of ClasTran. (Doc. #20, at 9). Boyd alleges that this public transportation was, and still is, available only until 3:30 p.m. (Doc. #14, at 5-6, ¶ 27).
In 2010, Boyd was admitted to a University of Montevallo graduate program seeking a Master's degree in community counseling. (Doc. #14, at 5, ¶ 26; Doc. #20, at 9). He began this program in September of 2010. (Doc. #14, at 5 ¶ 26). Because the graduate program offers classes only at night, Boyd alleges that he is unable to take the ClasTran and must "rely upon and pay a nursing home maintenance worker all of his scholarship funds ($500 for the semester) to transport him to and from campus for his classes." Id. at 6, ¶ 28; see also Doc. #20, at 9.[6] Additionally, Boyd claims that he borrows money from his brother to pay others $20 per trip for six additional trips per semester, which are needed in order to complete required assignments. (Doc. #14, at 6, ¶ 29). Essentially, Boyd wishes to receive community-based services necessary for him to live in the community, to be able to take more than two classes per semester towards his graduate degree, and to enjoy other University functions.[7]Id. ¶¶ 30-31. He has *1168 located rental housing near campus which meets his accessibility needs but is unable to secure the rental unless he knows that the necessary community-based services will be provided. Id. at 6-7, ¶ 32.[8] Boyd also complains of the conditions and atmosphere of the nursing home. Id. at 7-8, ¶¶ 34-38.[9]
Boyd applied for a Medicaid waiver program in October of 2008 and has been on a waiting list for services since that time. Id. at 8, ¶ 41. He also "recently renewed his request for services by asking [Commissioner Steckel] to make reasonable modifications to her waiver programs and provide him with waiver services including 10 hours per day of assistance with activities of daily living, assistance with his bowel program twice per week, assistance with changing his catheter twice per month and necessary equipment and care supplies." Id. at 8-9, ¶ 41. Because Commissioner Steckel has failed to provide such community-based services, Boyd alleges that he is forced to "continue to reside in a Medicaid-funded nursing facility instead of the community."[10]
DISCUSSION
A. Preliminary Injunction Standard
The purpose of a typical preliminary injunction is prohibitive in nature in that it is "`merely to preserve the relative positions of the parties until a trial on the merits can be held.'" United States v. Lambert, 695 F.2d 536, 539 (11th Cir.1983) (quoting Univ. of. Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981)); see also Mercedes-Benz U.S. Int'l, Inc. v. Cobasys, LLC, 605 F.Supp.2d 1189, 1196 (N.D.Ala.2009) ("Typically, a preliminary injunction is prohibitory and generally seeks only to maintain the status quo pending a trial on the merits.") (citations omitted). The burden on the party seeking a typical, prohibitive preliminary *1169 injunction is particularly high. All Care Nursing Serv., Inc. v. Bethesda Mem. Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989) ("Preliminary injunctions are issued when drastic relief is necessary to preserve the status quo.") (citing Cate v. Oldham, 707 F.2d 1176 (11th Cir.1983); Bannum, Inc. v. City of Fort Lauderdale, Fla., 657 F.Supp. 735 (S.D.Fla.1986)), cert. denied, Quality Prof'l Nursing, Inc. v. Bethesda Mem'l Hosp., Inc., 526 U.S. 1016, 119 S.Ct. 1250, 143 L.Ed.2d 347 (1999); see also Lambert, 695 F.2d at 539 ("[A preliminary injunction's] grant is the exception rather than the rule, and plaintiff must clearly carry the burden of persuasion.") (emphasis added). However, where, as here, "a preliminary injunction goes beyond the status quo and seeks to force one party to act, it becomes a mandatory or affirmative injunction and the burden placed on the moving party is increased." Mercedes-Benz, 605 F.Supp.2d at 1196 (citing Exhibitors Poster Exchange, Inc. v. Nat'l Screen Serv. Corp., 441 F.2d 560, 561 (5th Cir.1971), reh'g denied, 520 F.2d 943 (5th Cir.1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 784, 46 L.Ed.2d 643 (1976)).[11] For such mandatory injunctions, relief should be granted "[o]nly in rare instances." Harris v. Wilters, 596 F.2d 678, 680 (5th Cir.1979) (emphasis added); see also Mercedes-Benz, 605 F.Supp.2d at 1196.
A preliminary injunction is "an extraordinary and drastic remedy" that cannot be granted unless the moving party clearly establishes the following four prerequisites:
(1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.
Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir.2000) (en banc), reh'g denied, 234 F.3d 1218 (11th Cir.2000). If the moving party cannot clearly establish any one of the four required elements, then a preliminary injunction should not be granted. Bethel v. City of Montgomery, No. 2:04cv743-MEF, 2010 WL 996397 at *4, 2010 U.S. Dist. LEXIS 24949 at *11-12 (M.D.Ala. Mar. 2, 2010) ("A preliminary injunction is an extraordinary and drastic remedy which should not be granted unless the movant clearly carries the burden of persuasion as to all prerequisites.") (emphasis in original) (Coody, J.) (citations omitted); see also Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir.1994) (holding that the moving party's failure to demonstrate a substantial likelihood of success on the merits defeated the party's motion for a preliminary injunction, regardless of the party's ability to establish any of the other elements). Because this Court finds that Boyd has failed to establish a substantial likelihood of success on the merits sufficient justify the use of such an extraordinary remedy as a mandatory preliminary injunction, this motion is due to be DENIED.
B. Substantial Likelihood of Success on the Merits
i. The Statutes and Regulations
Section 504 of the Rehabilitation Act and Title II of the ADA contain similar provisions and are enforced by similar implementing regulations. Section 504 provides, in part, that "[n]o otherwise qualified individual with a disability in the United States ... shall, solely by *1170 reason of his or her disability, ... be subjected to discrimination under any program or activity receiving Federal financial assistance...."[12] 29 U.S.C. § 794(a). Its implementing regulation states that "[r]ecipients shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons." 28 C.F.R. § 41.51(d). Finally, Section 504 contains a fundamental-alteration defense for the recipient of federal funds. Id. § 41.53 ("A recipient shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program.").
Similarly, Title II of the ADA also prohibits discrimination in the provision of public services. It provides, in part, that "no qualified individual with a disability shall, by reason of such disability, ... be subjected to discrimination by any [public] entity." 42 U.S.C. § 12132. Under Title II, "Congress instructed the Attorney General to issue regulations implementing provisions of Title II, including § 12131's discrimination proscription." Olmstead v. L.C. by Zimring, 527 U.S. 581, 591, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) (citing 42 U.S.C. § 12134(a)). The Olmstead Court further explained:
One of the § 504 regulations requires recipients of federal funds to `administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.' 28 CFR § 41.51(d) (1998). As Congress instructed, the Attorney General issued Title II regulations ..., including one modeled on the § 504 regulation just quoted; called the `integration regulation,' it reads:
`A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.'
28 C.F.R § 35.130(d) (1998)
Id. at 591-92, 119 S.Ct. 2176. Like § 504, Title II of the ADA provides for a fundamental-alteration defense. 28 C.F.R. § 35.130(b)(7) ("A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.").
Indeed, Congress stated in the ADA that "[t]he remedies, procedures, and rights set forth in section 505 of the Rehabilitation Act of 1973 shall be the remedies, procedures, and rights this title provides to any person alleging discrimination on the basis of disability...." 42 U.S.C. § 12133. "Because the same standards govern discrimination claims under the Rehabilitation Act and the ADA, [this Court will] discuss those claims together and rely on cases construing those statutes interchangeably." Allmond v. Akal Sec. Inc., 558 F.3d 1312, 1316 n. 3 (11th Cir.2009), reh'g en banc denied, 347 Fed.Appx. 555 (11th Cir.2009), cert. denied, ___ U.S. ___, 130 S.Ct. 1139, 175 L.Ed.2d 972 (2010).
*1171 ii. Analysis
The Supreme Court's fragmented decision [13] in Olmstead remains the seminal case on the ADA'sand therefore the Rehabilitation Act'santi-discrimination provision. In Olmstead, the disabled persons were two women with mental illnessesschizophrenia and a personality disorder, respectively. 527 U.S. at 593, 119 S.Ct. 2176. Both women were voluntarily confined for treatment in a Georgia hospital's psychiatric unit. Id. Eventually, their treating psychiatrists concluded that one of the community-based programs would be appropriate to meet their treatment needs. Id. However, after they remained institutionalized, they sued the State under Title II of the ADA, alleging "that the State's failure to place [them] in a community-based program, once [their] treating professionals determined that such placement was appropriate, violated, inter alia, Title II of the ADA." Id. at 593-94, 119 S.Ct. 2176. The women requested, amongst other forms of relief, that "the State place [them] in a community care residential program, and that [they] receive treatment with the ultimate goal of integrating [them] into the mainstream of society." Id. at 594, 119 S.Ct. 2176.[14]
a. Determining Qualification for Community-Based Services: the Olmstead Majority
The majority opinion in Olmstead addressed only two issues: (1) whether the women were discriminated against "by reason of" their disability and (2) whether discrimination under the ADA required a showing that the State treated similarly situated individuals outside of the protected class differently. Id. at 598, 119 S.Ct. 2176. With regards to the second issue, the Court merely stated that it was "satisfied that Congress had a more comprehensive *1172 view of the concept of discrimination advanced in the ADA." Id.
As to whether there was discrimination "by reason of" disability, the Court emphasized that the ADA specifically identifies "`segregation' of persons with disabilities `as a form of discrimination.'" Id. at 600, 119 S.Ct. 2176 (citing 42 U.S.C. § 12101(a) ("[H]istorically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continues to be a pervasive social problem."); Id. § 12101(a)(5) ("[I]ndividuals with disabilities continually encounter various forms of discrimination, including ... segregation.")). Thus, the Court held that "unjustified institutional isolation of persons with disabilities is a form of discrimination." Id. This holding reflected "two evident judgments:" (1) that unnecessary institutional isolation "perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life" and (2) that such confinement "severely diminishes everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment." Id. at 600-01, 119 S.Ct. 2176. The Court further noted that discrimination also existed because disabled persons "must, because of their disabilities, relinquish participation in community life they could enjoy given reasonable accommodations" in order to "receive needed medical services" whereas non-disabled persons need not make the same sacrifice. Id. at 601, 119 S.Ct. 2176.
However, the Court also stressed that the ADA does not require deinstitutionalization when the person would be incapable of managing or benefitting from it. Id. at 601-02, 119 S.Ct. 2176 ("[N]othing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings."). Thus, as the Court stated:
The State generally may rely on the reasonable assessments of its own professionals in determining whether an individual `meets the essential eligibility requirements' for habilitation in a community-based program. Absent such qualification, it would be inappropriate to remove a patient from the more restrictive setting. See 28 C.F.R. § 35.130(d) (public entity shall administer services and programs in "the most integrated setting appropriate to the needs of the qualified individuals with disabilities" (emphasis added)); cf. School Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 288, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987) ("Courts normally should defer to the reasonable medical judgments of public health officials.").
Id. at 602, 119 S.Ct. 2176 (emphasis added). Because there was no genuine dispute regarding the qualifications of the women for community-based servicesindeed, the State's own professionals determined that such services would be appropriatethe Court found discrimination in the failure to deinstitutionalize. Id.
Here, this Court finds that Boyd cannot establish a substantial likelihood of success at this early juncture as to whether he is qualified for community-based services. In his brief in support of the summary judgment motion, Boyd addresses Olmstead's holding that "`unjustified isolation... is properly regarded as discrimination based on disability.'" (Doc. # 16, at 10) (quoting Olmstead, 527 U.S. at 597, 119 S.Ct. 2176). He then goes on to argue that being in a nursing home severely limits his everyday life activities. Id. at 10-13. However, the key in Olmstead is that the institutionalization must be unjustified *1173 and unnecessary. 527 U.S. at 596-597, 119 S.Ct. 2176. Hence, the Olmstead majority required a showing that the women qualified for community-based servicesi.e. that community-based services were appropriate for them.[15]Id. at 602-03, 119 S.Ct. 2176. This burden was met in that case because neither party disputed it. Id.
In the instant case, Boyd has declared what his needs would be should he be provided with community-based services. Specifically, he states that he will require "ten hours per day of assistance with activities of daily living, assistance with his bowel program twice weekly, assistance with replacement of his catheter twice monthly and necessary equipment and care supplies." (Doc. # 16, at 14). He also asserts that Commissioner Steckel "does not dispute that Plaintiff Boyd is a qualified person with a disability who meets the eligibility requirements for Alabama's Medicaid nursing home `level of care' as well as for its waiver and Medicaid programs." Id. at 7.
In response, Commissioner Steckel admits that Boyd is eligible for nursing home level of care but argues that "the issue of whether [Boyd] is qualified for Medicaid Waiver services, insofar as the ADA and Rehab[ilitation] Act define that term, is contested." (Doc. # 20, at 52 n. 31). Commissioner Steckel has put evidence before this Court in the form of an affidavit by Dr. Robert Moon, ("Dr. Moon"), Medical Director and Deputy Commissioner of Health Systems for the Alabama Medicaid Agency. (Doc. # 22 Ex. B). After reviewing Boyd's medical records, Dr. Moon contends that numerous additional services would be needed to ensure that Boyd's needs are met. Id. ¶ 7. He also points to several of Boyd's past health issues, one of which required hospitalization. Id. ¶ 8. Essentially, Dr. Moon *1174 states that more care and more expertise than that requested by Boyd would be needed in order to monitor for and remedy these health issues should they occur again.
Commissioner Steckel is entitled to rely on Dr. Moon's assessment and conclude that the community-based services requested by Boyd are inappropriate for his needs. Olmstead, 527 U.S. at 602, 119 S.Ct. 2176 ("The State generally may rely on the reasonable assessments of its own professionals in determining whether an individual `meets the essential eligibility requirements' for habilitation in a community-based program.").[16] Thus, "[i]t would be inappropriate to remove [Boyd] from the more restrictive setting"at least until Boyd can demonstrate, at summary judgment or trial, that Dr. Moon's assessment is unreasonable or that he is still qualified for community-based services even under Dr. Moon's assessment.[17]Id. Without more at this stage, this Court cannot find that Boyd has established a substantial likelihood of proving his qualification for the community-based services requested i.e. that they are appropriate to meet his needs.[18]
Furthermore, according to the federal regulations, Alabama is entitled to exclude individuals from waiver programs where *1175 "there is a reasonable expectation that home and community-based services would be more expensive than Medicaid services the individual would otherwise receive." 50 Fed. Reg. 10,013. Attempting to prove that community-based services are cheaper than nursing home care, Boyd points to data showing that "Alabama's Medicaid nursing home reimbursement is approximately $33,700 a year" whereas the "Medicaid waiver for home and community-based services [under the E & D Waiver] is approximately $10,365." (Doc. # 16, at 5). Thus, Boyd claims that the use of community-based services saves Alabama and the federal government approximately $22,000 a year. However, the data relied upon by Boyd refers to cost-neutrality in the "average per capita expenditures," not cost-neutrality as it relates to him in particular. (Doc. # 16 Ex. E, at 8). Commissioner Steckel contends that Boyd would need significantly more hours of care, more expertise in care, and more services and equipment then requested by Boyd or provided under the E & D Waiver in order to live in the community. Given this dispute, the evidence provided by Dr. Moon, and the lack of any evidence from a medical professional supporting Boyd's contentions as to his needs, Boyd cannot establish a substantial likelihood of success on the issue of whether it would be more cost-efficient to treat him in the community.
b. The Fundamental-Alteration Defense: the Olmstead Plurality
Additionally, Boyd has failed to establish a substantial likelihood of success on the allegedly reasonable modifications requested by him. The plurality in Olmstead discussed the fundamental-alteration defense advanced by the Statenamely, that all of its available funds were already being used to provide services to other disabled personsand rejected the Court of Appeal's holding that the State must show that the cost of providing community care to the women was unreasonable in comparison to its entire mental health budget. 527 U.S. at 604, 119 S.Ct. 2176. The plurality further clarified:
[Such an interpretation] would leave the State virtually defenseless once it is shown that the plaintiff is qualified for the service or program she seeks. If the expense entailed in placing one or two people in a community-based treatment program is properly measured for reasonableness against the State's entire mental health budget, it is unlikely that a State, relying on the fundamental-alteration defense, could ever prevail.... Sensibly construed, the fundamental-alteration component of the reasonable-modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with ... disabilities.
Id. at 603-04, 119 S.Ct. 2176 (emphasis added). Noting that deinstitutionalization might never be appropriate for some persons, the plurality made clear that the ADA was not designed to eradicate institutions or to force deinstitutionalization on persons when it would be inappropriate. Id. at 604, 119 S.Ct. 2176 ("[T]he ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk. Nor is it the ADA's mission to drive States to move institutionalized patients into an inappropriate setting....").
In emphasizing the "leeway" that must be given to States to "maintain a range of facilities and to administer services with an even hand," the plurality highlighted the unfairness associated with ordering a State to deinstitutionalize one person under certain circumstances. Id. at 605, 119 S.Ct. *1176 2176. For example, if a State demonstrates a "comprehensive, effectively working plan for placing qualified persons with... disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met." Id. at 605-06, 119 S.Ct. 2176. The plurality stated that courts could not allow one to essentially line-jump such a program for providing community based services. Id. at 606, 119 S.Ct. 2176 ("In such circumstances, a court would have no warrant effectively to order displacement of persons at the top of the community-based treatment waiting list by individuals lower down who commenced civil actions.").
Thus, the plurality concluded that a State is required to provide community-based services for disabled persons when several factors are met: (1) "the State's treatment professionals determine that such placement is appropriate"; (2) "the affected persons do not oppose such treatment"; and (3) "the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with ... disabilities." Id. at 607, 119 S.Ct. 2176. In addition to disputing the first element, Commissioner Steckel argues that Boyd's placement into the community would not be a reasonable accommodation, but rather would result in a fundamental alteration of Alabama's Medicaid system. See Doc. # 20, at 61-65.
Assuming that Boyd does qualify for an existing waiver program or for a modified waiver program, this Court must be mindful of the limitations on the Olmstead plurality's discussion of the fundamental-alteration defense. Boyd has averred that the E & D Waiverwhich Commissioner Steckel disputes whether Boyd is qualified to be underis capped at 9,205 people and has been at that cap since 2008. The DOJ contends that Alabama need only request an increase in the cap for a particular waiver program in order to comply with the ADA. (Doc. # 25, at 9). However, the Medicaid waiver program at issue in Olmstead had unused slots open. 527 U.S. at 601, 119 S.Ct. 2176. Thus, the Olmstead Court "did not consider whether a forced change in the waiver program's cap would constitute a fundamental alteration, because the [S]tate's program in that case was far from full." Arc. of Wash. State Inc. v. Braddock, 427 F.3d 615, 619 (9th Cir.2005).
Although there is no applicable precedent from the Eleventh Circuit, other circuits have addressed the issue of what would constitute a fundamental alteration, with seemingly conflicting results. For example, the First Circuit has stated that "in no event is the [State] required to undertake measures that would pose an undue financial or administrative burden... or effect a fundamental alteration in the nature of the service." Toledo v. Sanchez, 454 F.3d 24, 39 (1st Cir.2006) (emphasis added), cert. denied, Univ. of P.R. v. Toledo, 549 U.S. 1301, 127 S.Ct. 1826, 167 L.Ed.2d 356 (2007). On the other hand, the Third Circuit has held that budgetary constraints, "[t]hough clearly relevant," are alone "insufficient to establish a fundamental alteration defense." Pa. Prot. & Advocacy, Inc. v. Pa. Dep't of Pub. Welfare, 402 F.3d 374, 380 (3rd Cir.2005) (citations omitted). Going further, the Ninth Circuit has held that "[o]ne basis for finding a `fundamental alteration' would have been for the [S]tate to demonstrate that the remedy would force it `to apply for additional Medicaid waivers in order to provide community-based services'" to the plaintiffs. Id. (quoting Townsend v. Quasim, 328 F.3d 511, 519 (9th Cir.2003)); see also Bruggeman v. Blagojevich, 219 F.R.D. 430, 435 (N.D.Ill.2004) (rejecting the argument that a court can consider the *1177 fact that the State can "request additional waiver slots to expand community-based services" as part of the State's available resources because it is "beyond the scope of inquiry permissible under Olmstead").
Requiring Alabama to seek more waiver slots could very well be a fundamental alteration as the Ninth Circuit has held. Were this Court to grant a preliminary injunction here, nothing would prevent these other thousands of persons on the waiting lists from filing lawsuits and being granted preliminary injunctions that essentially increase the waiver cap. Cf. Long v. Benson, No. 4:08cv26-RH/WCS, 2008 WL 4571903 at *2 (N.D.Fla. Oct. 14, 2008) ("[C]ommon sense and experience suggest there is nothing that can be done for [the plaintiff] in a nursing home that cannot also be done in his apartment complex. Indeed, this is true of most if not all services provided in nursing homes for most if not all patients."), affirmed, 383 Fed.Appx. 930 (11th Cir.2010). Such a result would hardly render preliminary injunctions a drastic and extreme remedy. Furthermore, it could potentially disrupt the entire balance of the Alabama Medicaid program, rendering the permissible caps illusory and requiring Alabama to provide community-based services to anyone and everyone who qualifies for a particular Medicaid waiver program or a modified version of that program.[19]See Olmstead, 527 U.S. at 604, 119 S.Ct. 2176 ("[T]he ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk").[20]
Additionally, nothing in the record establishes whether the waiting list "move[s] at a reasonable pace not controlled by *1178 [Alabama's] endeavors to keep its institutions fully populated." Olmstead, 527 U.S. at 605-06, 119 S.Ct. 2176. Simply stating that the waiver program is capped, which is permitted under the Medicaid Act, does not mean that this is anything but "a comprehensive, effectively working plan." Id. Although Alabama bears the burden of establishing the existence of such a program, this Court cannot findon the record before itthat there is a substantial likelihood that Alabama will not be meet this burden. Cf. Townsend, 328 F.3d at 519 (reversing summary judgment for the State because the "current record [did] not provide [the court] with sufficient information to evaluate the ... fundamental alteration defense").
Finally, Boyd has not pointed to anythingnor can this Court find anything that would distinguish him from the other thousands of persons on waiting lists for community-based services under Alabama's Medicaid program. Permitting Boyd to jump ahead of others on the waiting list merely because he filed a lawsuit goes against the express language of the Olmstead plurality, which this Court will not do. See Olmstead, 527 U.S. at 606, 119 S.Ct. 2176 ("In such circumstances, a court would have no warrant effectively to order displacement of persons at the top of the community-based treatment waiting list by individuals lower down who commenced civil actions.") (emphasis added). Given the fragmented nature of the Olmstead opinion, the lack of guidance as to what constitutes a fundamental alteration, and the potential conflict between the Medicaid Act and the ADA and Rehabilitation Act, this Court cannot find that Boyd has established a substantial likelihood of success on the merits as to whether the relief he seeks would constitute a reasonable modification or a fundamental alteration. The uncertainty is heightened by the fact that Boyd seeks a mandatory preliminary injunction requiring him to satisfy a heightened burden.[21]
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that the motion for a preliminary injunction, (Doc. # 15), is DENIED.
NOTES
[1] This recitation of facts is based on the allegations in the Amended Complaint, (Doc. #14), and the evidence and testimony submitted by the parties in support of and in opposition to the motion for a preliminary injunction.
[2] The ID Waiver (formerly known as the Mental Retardation ("MR") Waiver) is available only for persons with intellectual disabilities. (Doc. #19 Ex. C, Chappelle Aff. ¶ 9). As such, it is inapplicable in the instant case.
[3] The LAH Waiver is available only for persons with intellectual disabilities. (Doc. #19 Ex. C, Chappelle Aff. ¶ 9). As such, it is inapplicable in the instant case.
[4] The HIV/AIDS Waiver is available only for persons diagnosed with HIV, AIDS, and related illnesses. (Doc. #19 Ex. C, Chappelle Aff. ¶ 10). As such, it is inapplicable in the instant case.
[5] The TA Waiver for Adults is "available only for persons who received private duty nursing services through the EPSDT Program under the Medicaid State Plan prior to turning 21 years of age." Doc. #19 Ex. C, Chappelle Aff. ¶ 11. Because there is no evidence on the record establishing whether Boyd received such services, the TA Waiver for Adults is inapplicable at this juncture. Id.
[6] Commissioner Steckel argues that Boyd's "assertion that he has been `forced' into this position is disingenuous, however, as he failed to request assistance from Rehab Serviceswhich has a history and current practice of assisting him with transportation." (Doc. #20, at 10). At the October 13, 2010 hearing, Boyd admitted that he was satisfied with his current transportation arrangements. However, he also claimed that these arrangements could not continue past the spring semester, after which he alleges that he will lose the $500 per semester scholarship he currently uses to pay the nursing home employee.
[7] Specifically, Boyd contends that he "is experiencing an increase in time, effort and expense for him to complete his graduate degree and is being prevented from participating in aspects of college life enjoyed by other graduate students." Id. at 6, ¶ 31. He is currently taking two nighttime classes for his graduate program, but he would like to take four. Id. ¶ 30. Boyd also points out that he is unable to attend other University functions such as athletic events, author readings, theatrical performances, and musical performances. Id.
[8] Because "accessible rental housing is difficult to locate and secure," Boyd alleges that he "needs to act as soon as possible in order to secure rental housing." Id. at 7-8, ¶ 32.
[9] Specifically, Boyd alleges that, since he moved into the nursing home in December of 2006, he has had five decubitus ulcers ("pressure sore[s]"). Id. at 7, ¶ 34. In the eleven years when his mother was his primary care giver, he only had one. Id. Furthermore, Boyd contends that he "must return to the facility by a specific time in the evening, which limits his socializing with friends and having overnight stays with friends." Id. ¶ 35. Because he is a Medicaid resident in a nursing home, only $30 of his $897 monthly Social Security Disability check is available for his personal expenses, again limiting his ability to socialize or have snacks. Id.
He claims that "virtually all of the [other] residents are disabled and most are much older than [him]" taking away the "simple pleasure of being around people his own age who have similar interests and activities." Id. at 8, ¶ 37. As such, he does not take part in many of the nursing home's activities because they are "geared toward octogenarians." Id.
He also points out that he "must eat when and what the facility provides and must transfer to and from his bed, shower, toilet, and dress on the staff's schedule." Id. at 7, ¶ 36. To accommodate others with their morning routines, the nursing home staff often pushes Boyd's back until 11 a.m. or later. Id. Thus, he contends that he "is unable to get out of bed until 11 a.m. unless he schedules his activities a few days in advance." Id. at 7-8, ¶ 36. This also applies to his evening routine. Id. at 8, ¶ 36.
Finally, Boyd complains that "[t]here is little or no privacy" in the nursing home, where "[t]here is constant noise, screaming and crying." Id. ¶ 38. He claims that the nursing home residents "are often not dressed and are exposed" and "[t]here is a pervasive unpleasant disinfectant odor."
[10] He describes this as being "unnecessarily institutionalized." Id. at 8, ¶¶ 40-41.
[11] Unless subsequently overruled, decisions of the old Fifth Circuit before October 1, 1981 are binding on the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
[12] Neither party disputes "that the Federal Government funds a substantial portion of what Alabama spends on Medicaid." (Doc. #20, at 18); see also Alexander, 469 U.S. at 301, 105 S.Ct. 712 ("Medicaid is a joint state-federal funding program for medical assistance in which the Federal Government approves a state plan for the funding of medical services for the needy and then subsidizes a significant portion of the financial obligations the State has agreed to assume.").
[13] The Olmstead decision consisted of a majority of five justicesJustices Ginsburg, O'Connor, Souter, and Breyerjoining in Parts I, II, and III.A. However, only a plurality of fourJustices Ginsburg, O'Connor, Souter, and Breyerjoined in part III.B, which is the main focus of the instant case. Furthermore, Justice Stevens filed an opinion concurring in part and concurring in the judgment. Justice Kennedy filed an opinion concurring only in the judgment, in which Justice Breyer joined as to Part I. Finally, Justice Thomas dissented, joined by Justices Rehnquist and Scalia.
[14] Procedurally, the District Court granted partial summary judgment in favor of the women, holding that the failure to provide community-based services violated Title II of the ADA. Olmstead, 527 U.S. at 594, 119 S.Ct. 2176. The District Court also rejected the State's argument that the failure to provide community-based services was "by reason of" lack of funds, not the women's disabilities. Id. The court concluded that "unnecessary institutional segregation of the disabled constitutes discrimination per se, which cannot be justified by lack of funding." Id. Finally, the District Court rejected the State's fundamental-alteration defensenamely that it was already using all of its funds to provide services to other disabled personsnoting that the State already provided services of the kind which the women sought and that the provision of such services to the women would cost considerably less than institutionalization. Id. at 595, 119 S.Ct. 2176.
The Eleventh Circuit affirmed the judgment, but remanded for reconsideration of the State's lack-of-funds defense. Id. The appeals court held that, when the treating physician finds community-based services appropriate to meet the needs of a disabled person, then the State must provide such services under the ADA. Id. Absent such a finding, the Eleventh Circuit held that the ADA does not require deinstitutionalization. Id. However, the duty to deinsitutionalize was "not absolute" because "fundamental alterations [to the State's Medicaid program] were not demanded." Id. As such, the Eleventh Circuit remanded so that the State could attempt to prove that "the additional expenditures necessary to treat [the women] would be unreasonable given the demands of the State's mental health budget." Id.
[15] The Olmstead Court's language on this issue is somewhat confusing, since the Medicaid statute refers a "qualified individual with a disability," which is "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices... meets the essential eligibility requirements for receipt of services or the participation in programs or activities provided by the public entity." 42 U.S.C. § 12131(2). In its brief in support of Boyd's preliminary injunction motion, the United States Department of Justice ("DOJ") contends that Commissioner Steckel's argument on Boyd's qualifications "conflates the question of eligibility with the question of whether the relief sought is a reasonable modification." (Doc. # 25 at 12).
However, a closer reading of Olmstead reveals that the Court's requirement of being qualified for community-based services means that the services are appropriate to meet the individual's needs. 527 U.S. at 602, 119 S.Ct. 2176 ("The State generally may rely on the reasonable assessments of its own professionals in determining whether an individual `meets the essential eligibility requirements' for habilitation in a community-based program. Absent such qualification, it would be inappropriate to remove a patient from the more restrictive setting.") (emphasis added) (citing 28 C.F.R. § 35.130(d) (public entity shall administer services and programs in "the most integrated setting appropriate to the needs of the qualified individuals with disabilities") (emphasis added by the Supreme Court)).
Otherwise, the citation to the integration provision and the emphasis on the appropriateness language would be unnecessary and irrelevant. Additionally, a contrary interpretation would mean that a person who qualifies for Medicaid generally would then automatically qualify for community-based services as a "qualified individual with a disability" even if it were not the most appropriate setting for his needs. Such a result would be contrary to the integration provision's express language. See 28 C.F.R § 35.130(d); 28 C.F.R. § 41.51(d); see also Olmstead, 527 U.S. at 607, 119 S.Ct. 2176 (holding that one element necessary for a State to be required to provide community-based services is that "the State's treatment professionals determine that such placement is appropriate") (emphasis added).
[16] Boyd himself has presented no evidence from a medical professional that supports his views of what his needed medical services would be the community setting. Instead, he merely states what he believes his needs would be and asserts that his treating physician at the nursing home supports his decision to move out. Even without the conflicting evidence presented by Dr. Moon, this Court could not find these bare assertions sufficient to prove that the requested community-based services would be appropriate to meet Boyd's needs.
[17] The DOJ contends that the fact that Boyd lived in the community for eleven years demonstrates that community-based services are appropriate for his needs. (Doc. # 25 at 12). However, the record before this Court does not contain sufficient information to determine (1) what services Boyd actually received while his mother was his primary caregiver; (2) whether those services alone would be enough without his mother acting as primary caregiver; (3) what additional services, if any, would be needed for Boyd to live in the community; and (4) whether Boyd's medical needs have changed since he lived in the community. On such a barren record, this Court cannot find that the fact that Boyd lived in the community for eleven years with a relative acting as primary caregiver, in and of itself, establishes that community-based services are appropriate for his needs now.
[18] In support of Boyd's motion for a preliminary injunction, the DOJ places much emphasis on a recent case from the Middle District of Florida. (Doc. # 25, at 6 n. 6) (citing Haddad v. Arnold, No. 3:10-cv-00414-MMH-TEM (M.D.Fla. July 9, 2010)); see also id. at 11. In Haddad, the court issued a preliminary injunction requiring the State to provide community-based services for a woman with quadriplegia. However, the facts of Haddad are easilyand pertinentlydistinguishable from the instant case. In Haddad, the plaintiff pointed to a specific waiver, already in existence, which appeared to have open slots and provided the services requested by her. Haddad, at 27. The State did not dispute that she was qualified for that program. Id. Similarly, in Olmstead, the women qualified for a specific waiver program, in which slots were still available. 527 U.S. at 601, 119 S.Ct. 2176.
Here, Boyd has failed to establish which specific waiver, if any, already provides the services he requests. Even looking to the E & D Waiver that Boyd discussed briefly, he has failed to establish how it provides all of the services he requested and/or would need to live in the community. Indeed, Commissioner Steckel contends that none of the existing waivers covers the community-based services requested by Boyd. See Doc. # 20, at 64; see also Doc. # 19 Ex. C, Chappelle Aff. ¶¶ 5-15. She also specifically contends that the E & D Waiver does not cover the equipment requested by Boyd or the skilled care that Dr. Moon determined he would need. (Doc. #19 Ex. C, Chappelle Aff. ¶ 14). Boyd has done nothing to rebut this evidence at this stage.
[19] In Haddad, the Middle District of Florida considered similar arguments about the apparent conflict between the ADA and the Rehabilitation Act's anti-discrimination provisionsas applied by the Olmstead Court to prevent unnecessary institutionalizationand the Medicaid Actwhich has a extensive regulatory and statutory scheme that permits capped waiver programs. Rejecting the State's contentions that there was a conflict, the court concluded that the plaintiff's claim "simply addresses the question of whether these Defendants, having opted to provide particular services via the mechanism of a Medicaid Waiver Program, may be required, under the ADA, to provide those same services to [the plaintiff] if necessary to avoid imminent, unnecessary institutionalization." Haddad at 29.
Because Haddad is factually distinguishable from this caseneither party disputed the plaintiff's qualifications for a particular waiver program which may have had open slotsthis Court is not convinced that the issue is so narrow in the instant case, particularly given the Olmstead Court's holding that the courts must look at the big picture. 527 U.S. at 606, 119 S.Ct. 2176 (requiring courts to consider whether "the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with ... disabilities") (emphasis added). Thus, the potential impact of a grant of preliminary injunctive relief on the State's Medicaid program, and its waiver programs in particular, is an appropriate consideration.
To be clear, this Court is not holding that the ADA and the Rehabilitation Act do not apply to a State who chooses to have Medicaid. However, this Court is not convinced that the intended interaction between the statutes is such that States who choose to have Medicaid and who choose to use optional waiver programs must therefore provide such community-based services to all persons who could benefit from them even when the waiver programs are full.
[20] For these same reasons, this Court finds that the balance of hardships does not favor granting a preliminary injunction and that it would not be in the public interest to grant such injunctive relief at this stage. Without a more developed record and an opportunity to more fully brief the issues, the grant of preliminary injunctive relief poses a grave risk of setting precedent which could undermine Alabama's Medicaid scheme, negatively impacting those other disabled persons receiving Medicaid funds. For these additional reasons, the motion is due to be DENIED.
[21] Even if his pleadings could be construed as seeking a typical prohibitory injunction, Boyd still cannot establish the substantial likelihood of success on the merits sufficient to upset the status quo in this case.
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NUMBER 13-09-00578-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
SIMON ORTIZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Vela
Memorandum Opinion by Justice Rodriguez
Appellant Simon Ortiz appeals the revocation of his community supervision. See
Tex. Penal Code Ann. § 22.02 (Vernon Supp. 2009). Following a plea of true at his
revocation hearing, the trial court found that Ortiz committed violations of his terms of
community supervision and assessed his punishment at five years' confinement. By two
issues, which we renumber and reorganize as one, Ortiz complains that he received
ineffective assistance of counsel at the revocation stage because his counsel failed to
investigate his mental health history. We affirm.I. Background
Ortiz was indicted for aggravated assault as follows:
. . . on or about January 29, 2006, in Nueces County, Texas, [Ortiz] did then and
there intentionally, knowingly, or recklessly cause bodily injury to Vawn Hue Hunter
by striking Vawn Hue Hunter and did then and there use or exhibit a deadly
weapon, to-wit: a hammer, during the commission of said assault . . . .
See id. Prior to trial, Ortiz's counsel filed a motion for psychiatric examination. In the
motion, counsel contended that Ortiz was unable to assist in his own defense. On March
9, 2006, the motion for psychiatric evaluation was granted by the trial court. Raul
Capitaine, M.D., a member of the American Board of Forensic Examiners, performed the
evaluation on April 5, 2006, and submitted his findings to the trial court. Dr. Capitaine
found Ortiz to be competent to stand trial and that medication was necessary to "attain or
maintain competence." On April 19, 2006, Ortiz signed a plea agreement in which he
pleaded guilty to aggravated assault and received seven years' community supervision.
See Tex. Code Crim. Proc. Ann. art. 42.12 § 5 (Vernon Supp. 2009).
On August 18, 2009, the State filed a motion to revoke probation, alleging that Ortiz
violated his probation by committing an assault in Harris County, Texas, on July 25, 2009.
See Tex. Penal Code Ann. § 22.01 (Vernon Supp. 2009). On September 23, 2009, Ortiz
requested that he be appointed an attorney because he did not have the means to retain
one, and the court assigned Ortiz new counsel to represent him in the revocation
proceeding.
On February 24, 2010, at his revocation hearing, Ortiz pleaded true to the
allegations contained in the motion to revoke. The trial court found that Ortiz violated the
terms of his community supervision, revoked Ortiz's probation, and sentenced Ortiz to five
years' confinement in the Institutional Division of the Texas Department of Criminal Justice.II. Standard of Review & Applicable Law
For Ortiz to establish a claim of ineffective assistance of counsel, he must show:
(1) that his counsel's representation fell below an objective standard of reasonableness;
and (2) that, but for his attorney's unprofessional errors, there is a reasonable probability
that the result of the proceeding would have been different. Strickland v. Washington, 466
U.S. 668, 688-94 (1984). A reasonable probability is one that is sufficient to undermine
confidence in the outcome of the case. Id. Whether the two-pronged test has been met
depends upon the totality of the representation and is not determined by isolated acts or
omissions. Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App. 1995); Jaynes v.
State, 216 S.W.3d 839, 851 (Tex. App.-Corpus Christi 2006, no pet.).
The burden is on appellant to prove ineffective assistance of counsel by a
preponderance of the evidence. Jaynes, 216 S.W.3d at 851. We presume that counsel
gave his client reasonable professional assistance, and our review of counsel's
representation is highly deferential. See Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim.
App. 2001) (citing Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000)); Jaynes, 216
S.W.3d at 851. For an appellant to defeat the presumption of reasonable professional
assistance, an allegation of ineffectiveness "must be firmly founded in the record, and the
record must affirmatively demonstrate the alleged ineffectiveness." Mallett, 65 S.W.3d at
63 (citing Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999)). Generally, the
trial record will be underdeveloped and will not adequately reflect the errors of trial counsel.
Thompson, 9 S.W.3d at 813-14; Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.-Houston
[1st Dist.] 1994, pet. ref'd). On direct appeal, a defendant cannot usually rebut the
presumption that counsel's performance was the result of sound or reasonable trial
strategy because the record is normally silent as to counsel's decision-making process.
Strickland, 466 U.S. at 688; see Jaynes, 216 S.W.3d at 851.
III. Discussion
By his sole issue on appeal, Ortiz complains that his counsel was ineffective
because he failed to investigate Ortiz's mental health history prior to the hearing on the
State's motion to revoke. It is Ortiz's contention that had his counsel investigated his
mental health history, counsel would have discovered that Ortiz had been previously
examined by a psychiatrist following a court-ordered competency evaluation in April 2006.
Ortiz argues that his mental defects were evident and that he was not able to
understand the proceedings during his probation revocation hearing due to his mental
illness. Ortiz refers this Court to two instances that occurred during the hearing where he
gave incorrect answers to the trial court when he was allegedly confused. The first
example occurred during the following exchange between the court and Ortiz:
[The Court]: Did you in fact sign the paperwork?
[Ortiz]: No.
[Ortiz's Counsel]: Oh, yeah, yeah, yeah.
[Ortiz]: Yes.
[The Court]: Okay. Did anybody force you to sign it?
[Ortiz]: No.
[The Court]: And did anybody promise you anything to get you to sign
it?
[Ortiz]: No.
[The Court]: Okay. Did you sign everything here freely and voluntarily?
[Ortiz]: Yes, sir.
Ortiz contends that this example of him having to be reminded of the paperwork he had
just signed shows that there was a clear lack of understanding on his part.
Moments later, Ortiz was asked another question by the court:
[The Court]: To the allegations in the motion to revoke, how do you
plead, true or not true?
[Ortiz]: Not true.
[Ortiz's Counsel]: We went over - we went over this. The assault.
[Ortiz]: Okay.
[Ortiz's Counsel]: And you told me it was true.
[Ortiz]: True.
[The Court]: Is anybody forcing you to plead true?
[Ortiz]: No.
[The Court]: And are you pleading true here freely and voluntarily?
[Ortiz]: Yes.
Ortiz argues that he forgot how he was pleading to the probation violation allegations and
had to, again, be reminded by counsel to plead true.
Prior to his plea agreement for aggravated assault in 2006, Ortiz underwent a court-ordered competency hearing. See Tex. Code Crim. Proc. Ann. art. 46B.004 (Vernon
2006). The opinion of Dr. Capitaine, the psychiatrist who evaluated Ortiz, was that
medications were necessary to maintain Ortiz's competency and that he believed Ortiz was
able to "[r]ationally understand the charges and potential consequences of the pending
proceedings." Moreover, Dr. Capitaine noted that Ortiz was able to testify but that
"[q]uestions may have to be repeated and phrased in basic language."
There is no evidence in the record that indicates whether Ortiz was medicated at the
time of his plea bargain for the 2006 aggravated assault or at his probation revocation
hearing on October 6, 2009, and we cannot guess as to the matter because ineffective
assistance of counsel claims must be firmly established by the record, not built on
retrospective speculation. (1) See Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App.
2002). Because Ortiz did not file a motion for new trial on ineffective assistance of counsel
grounds or elicit testimony concerning counsel's reasons for not seeking a competency
hearing or ascertaining whether or not counsel made any investigation into Ortiz's mental
health, there is no evidence in the record to suggest that the actions of Ortiz's revocation
counsel were not the result of sound and reasonable trial strategy. See Jaynes, 216
S.W.3d at 855. Accordingly, Ortiz has not rebutted the strong presumption that his counsel
provided professional and objectively reasonable assistance. See Mallett, 65 S.W.3d at
62; Thompson, 9 S.W.3d at 813. Because Ortiz has not established that his counsel's
performance fell below an objectively reasonable standard, he has not met the first prong
of Strickland. (2)
See Jaynes, 216 S.W.3d at 855 (citing Mallet, 65 S.W.3d at 67). Ortiz's
issue is overruled.
IV. Conclusion
The judgment of the trial court is affirmed.
NELDA V. RODRIGUEZ
Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Delivered and filed the
16th day of July, 2010.
1. Ortiz did not file a motion for new trial, and the appellate record is silent as to evidence regarding the
strategy of Ortiz's counsel at his revocation hearing. In fact, we cannot assume that Ortiz's counsel did not
investigate Ortiz's competency when the record is silent as to the depth of counsel's investigation. See
Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Brown v. State, 129 S.W.3d 762, 767 (Tex.
App.-Houston [1st Dist.] 2004, no pet.). Because Ortiz raised the ineffective assistance of counsel claim on
direct appeal, his revocation counsel has not had the opportunity to respond to Ortiz's concerns; the
reasonableness of the choices made by Ortiz's counsel may involve facts that do not appear in the appellate
record. See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Ortiz's counsel should be
afforded an opportunity to explain his actions before being denounced as ineffective. See id. at 111.
2. Because Ortiz failed to meet the first prong of Strickland, we need not consider the second prong,
that is, whether the result of the proceeding would have been different. See Garcia v. State, 57 S.W.3d 436,
440 (Tex. Crim. App. 2001).
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Order entered January 2, 2014
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01086-CR
DANIEL RUBIN HILLIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F12-34374-K
ORDER
Appellant’s December 27, 2013 motion for extension of time to file a reply brief is
GRANTED. The time to file appellant’s reply brief is EXTENDED to February 5, 2014.
/s/ LANA MYERS
JUSTICE
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2014 MSPB 50
Docket No. AT-0752-13-0507-I-1
Joshua R. Marcantel,
Appellant,
v.
Department of Energy,
Agency.
July 15, 2014
Lawrence Berger, Esquire, Glen Cove, New York, for the appellant.
Jonathan R. Buckner, Albuquerque, New Mexico, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of an initial decision that
dismissed his appeal as untimely filed without a showing of good cause for the
delay. For the following reasons, we DENY the petition for review and AFFIRM
the initial decision.
BACKGROUND
¶2 The following relevant facts are not in dispute. Effective March 14, 2013,
the agency removed the appellant from his Nuclear Materials Courier position for
failure to maintain a condition of employment, namely his “Q” access
2
authorization (security clearance). Initial Appeal File (IAF), Tab 6, Subtab 4b.
The agency provided a certified mail return receipt, indicating that an individual,
later determined to be the appellant’s father, had signed for the decision letter at
the appellant’s address of record on March 16, 2013. Id. at 4. The appellant filed
his Board appeal on April 29, 2013. IAF, Tab 1. The administrative judge issued
an initial decision that dismissed the appeal as untimely filed without a showing
of good cause for the delay. IAF, Tab 15, Initial Decision (ID).
¶3 The appellant has filed a petition for review and the agency has filed a
response. Petition for Review (PFR) File, Tabs 1, 3. On review, the appellant
appears to challenge only the administrative judge’s conclusion that the appeal
was untimely filed. The appellant concedes that the agency mailed the decision
letter to his address of record, but he argues that: (1) this address was his father’s
house in LaFayette, Louisiana, and he did not reside there; (2) the appellant was
at work at an off-shore oil rig in the Gulf of Mexico from March 5, 2013, until
March 19, 2013; (3) the appellant returned to his actual residence in Knoxville,
Tennessee on March 19, 2013; (4) his father was not his designated agent; and
(5) his father did not notify him of the delivery until March 28, 2013, when he
returned to his father’s house. PFR File, Tab 1 at 2-3. He contends that he
rebutted the presumption of delivery because he did not receive the notice until
March 28, 2013. Id. at 6. He further argues that the administrative judge
conflated concepts under the Board’s applicable regulations concerning the time
limit for filing an appeal. Id. at 4.
ANALYSIS
The appeal was untimely filed.
¶4 The appellant bears the burden to prove by preponderant evidence that his
appeal was timely filed. 5 C.F.R. § 1201.56(a)(2)(ii). A removal appeal must be
filed no later than 30 days after the effective date, if any, of the action being
3
appealed, or 30 days after the date of the appellant’s receipt of the agency’s
decision, whichever is later. 5 C.F.R. § 1201.22(b)(1).
¶5 The Board’s regulation regarding an appellant’s obligation to keep the
agency informed of his address for purposes of receiving an agency
decision, 5 C.F.R. § 1201.22(b)(3), went into effect on November 13, 2012, and
is applicable to this matter. See Merit Systems Protection Board Practices and
Procedures, 77 Fed. Reg. 62350, 62352 (Oct. 12, 2012) (stating that the
regulation became effective November 13, 2012). The regulation reads as
follows:
An appellant is responsible for keeping the agency informed of his or
her current home address for purposes of receiving the agency’s
decision, and correspondence which is properly addressed and sent to
the appellant’s address via postal or commercial delivery is
presumed to have been duly delivered to the addressee. While such a
presumption may be overcome under the circumstances of a
particular case, an appellant may not avoid service of a properly
addressed and mailed decision by intentional or negligent conduct
which frustrates actual service. The appellant may also be deemed to
have received the agency’s decision if it was received by a
designated representative or a person of suitable age and discretion
residing with the appellant.
5 C.F.R. § 1201.22(b)(3). The rule also includes illustrative examples of
circumstances in which an appellant may be deemed to have received an agency
decision, including an appellant who fails to pick up mail delivered to his post
office box and a roommate’s receipt of an agency decision. Id., Examples A, C.
¶6 The appellant, through his attorney, 1 stated below that he (the appellant)
was working on an off-shore oil rig in the Gulf of Mexico at the time his removal
1
The appellant’s attorney explained below that the appellant had been working on an
oil rig in the Gulf of Mexico and that he (the attorney) was unable to contact the
appellant to obtain a sworn declaration attesting to his receipt of the agency’s decision
letter. IAF, Tab 11 at 2-3. The statements of a party’s representative in a pleading do
not constitute evidence. Hendricks v. Department of the Navy, 69 M.S.P.R. 163, 168
4
was effected. IAF, Tab 11 at 2. Although the appellant does not dispute that he
provided his father’s address to the agency for the purpose of receiving
correspondence, PFR File, Tab 1 at 4, he explained below that he did not return to
his father’s address and did not personally receive the notice of decision until
March 28, 2013, IAF, Tab 11 at 2. The appellant further asserted that April 29,
2013, was the first business day following the 30th day after service on March 28,
2013, and thus, his appeal was timely filed. Id.
¶7 We are not persuaded by the appellant’s arguments on review. In
particular, the record does not support the appellant’s assertion that he rebutted
the presumption that the letter was “delivered to the addressee” as set forth in
5 C.F.R. § 1201.22(b)(3) because he did not actually receive the letter or have
notice of its contents until March 28, 2013. Importantly, the agency properly sent
the decision letter to the appellant’s address of record, and the appellant’s father
signed the certified mail return receipt for the notice on the appellant’s behalf on
March 16, 2013. See IAF, Tab 6, Subtab 4b at 4. We find that this service
constitutes receipt by the appellant pursuant to 5 C.F.R. § 1201.22(b)(3).
¶8 The appellant’s claim that he had “no notice of impending delivery,” PFR
File, Tab 1 at 7, is inconsistent with the fact that he was on notice that the agency
might render a decision on the proposed removal, which had been issued in
October 2012, see IAF, Tab 6, Subtab 4f. Moreover, the record reflects that, due
to the ongoing issues regarding his “Q” access authorization dating as far back as
February 2012, the appellant secured employment on an off-shore oil rig in the
Gulf of Mexico during the 2012-2013 time frame. See IAF, Tab 13 at 3; see also
IAF, Tab 6, Subtabs 4g-4l (documentation regarding the revocation of the
appellant’s access authorization and his indefinite suspension based on the
revocation of his access authorization). Thus, having been aware that the agency
(1995). Even if the appellant could prove the assertions made by his attorney, such
assertions do not change our analysis of the timeliness issue.
5
would likely issue a decision on the proposed removal while he was working on
the off-shore oil rig, the appellant provided his father’s address to the agency for
correspondence, and he cannot now assert that the agency’s delivery of the
decision letter to that address, and his father’s signature on the certified mail
receipt, does not constitute effective receipt for purposes of the filing time limit
in 5 C.F.R. § 1201.22.
¶9 The Board’s regulations further provide that “an appellant may not avoid
service of a properly addressed and mailed decision by intentional or negligent
conduct which frustrates actual service.” 5 C.F.R. § 1201.22(b)(3). Example A
in the regulation highlights that an appellant may be deemed to have received an
agency decision when he fails to pick up mail delivered to his post office box.
Here, as noted above, the appellant used his father’s address as his address of
record while working off-shore. The agency properly sent the notice to that
address. The appellant returned to his home from the off-shore assignment on
March 19, 2013, and then waited until March 28, 2013, before talking with his
father and learning of the delivery of the letter. PFR File, Tab 1 at 1. Thus,
regardless of appellant’s claims that his father was not his designated
representative and that he did not reside with his father, PFR File, Tab 1 at 4-6,
we find that he constructively received the letter on March 16, 2013, because his
failure to timely retrieve or otherwise learn of his mail cannot be used to frustrate
the actual service of the decision. 2 Moreover, even if we accept that the appellant
was unable to receive the decision until his return on March 19, 2013, his April
29, 2013 Board appeal was still untimely filed by 10 days.
2
We have considered the appellant’s remaining arguments on review but none warrant a
different outcome.
6
The appellant has not shown good cause for the delay in filing his appeal.
¶10 The Board may waive its regulatory filing time limit for good cause
shown. 5 C.F.R. § 1201.22(c). To establish good cause for the untimely filing of
an appeal, a party must show that he exercised due diligence or ordinary prudence
under the particular circumstances of the case. Alonzo v. Department of the Air
Force, 4 M.S.P.R. 180, 184 (1980). To determine whether an appellant has
shown good cause, the Board will consider the length of the delay, the
reasonableness of his excuse and his showing of due diligence, whether he is
proceeding pro se, and whether he has presented evidence of the existence of
circumstances beyond his control that affected his ability to comply with the time
limits or of unavoidable casualty or misfortune which similarly shows a causal
relationship to his inability to timely file his appeal. See Moorman v. Department
of the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996)
(Table).
¶11 The appellant has not demonstrated good cause. Importantly, a 14-day
delay is not minimal. See Allen v. Office of Personnel Management, 97 M.S.P.R.
665, ¶ 8 (2004). Moreover, the appellant was represented by counsel. Even if we
credit the appellant’s assertion that he returned to his father’s home on March 28,
2013, and thus, had no actual notice of the decision letter until that date, he has
not sufficiently explained why he did not file a Board appeal within the first 2
weeks after receiving that correspondence. Indeed, if he had filed his appeal on
or before April 15, 2013, timeliness would not have been an issue in this matter.
Finally, he has presented no evidence of the existence of circumstances beyond
his control that affected his ability to comply with the time limits or of
unavoidable casualty or misfortune related to the filing of his Board appeal.
¶12 For these reasons, we affirm the administrative judge’s decision to dismiss
the appeal as untimely filed with no showing of good cause for the delay.
7
ORDER
¶13 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
8
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
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11 N.Y.3d 715 (2009)
MATTER OF BELANCE
v.
MANHATTAN BEER DISTRIBS.
Court of Appeals of the State of New York.
Decided January 20, 2009.
Motion for leave to appeal denied.
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00139-CV
MARY ELLIS JOHNSON APPELLANT
V.
RONNIE RAY JOHNSON, JR., APPELLEES
SHENA JOHNSON DANIELS,
RONICA SHAVON JOHNSON, AND
ANDRE KEITH JOHNSON
------------
FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 017-269146-13
------------
MEMORANDUM OPINION 1 AND JUDGMENT
------------
We have considered the parties’ “Agreed Motion for Remand to Enforce
Mediation Agreement.” It is the court’s opinion that the motion should be
granted; therefore, we set aside the trial court’s judgment without regard to the
1
See Tex. R. App. P. 47.4.
merits and remand this case to the trial court to render judgment in accordance
with the parties’ agreement. See Tex. R. App. P. 42.1(a)(2)(B); Innovative Office
Sys., Inc. v. Johnson, 911 S.W. 2d 387, 388 (Tex. 1995).
PER CURIAM
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DELIVERED: September 18, 2014
2
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This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0102
Dezeray Marie Roblero-Barrios,
Appellant,
vs.
Lucinda Jesson, Commissioner of Human Services,
Respondent.
Filed July 14, 2014
Affirmed
Smith, Judge
Olmsted County District Court
File No. 55-P6-99-002869
David A. Jaehne, West St. Paul, Minnesota (for appellant)
Lori Swanson, Attorney General, Uzodima Franklin Aba-Onu, Assistant Attorney
General, St. Paul, Minnesota; and
Mark A. Ostrem, Olmsted County Attorney, Geoffrey A. Hjerleid, Assistant County
Attorney, Rochester, Minnesota (for respondent)
Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and
Smith, Judge.
UNPUBLISHED OPINION
SMITH, Judge
We affirm the judicial appeal panel’s dismissal of appellant’s petition for a full
discharge or a provisional discharge from her civil commitment as a sexually dangerous
person because appellant failed to introduce any competent evidence that she meets the
statutory criteria for relief.
FACTS
After serving time in prison for convictions of second-degree assault and second-
degree attempted criminal-sexual conduct, based on an incident involving a six-year-old
boy in the restroom of a retail store, appellant Dezeray Marie Roblero-Barrios was
indeterminately committed to the Minnesota Sex Offender Program (MSOP) as a
sexually dangerous person in June 2001. She is in the first phase of treatment at MSOP.
In June 2012, Roblero-Barrios petitioned the special review board (SRB) for a full
discharge or a provisional discharge from civil commitment, and submitted a
“predischarge” plan from the department of corrections (DOC). The SRB conducted a
hearing on the petition. It found that Roblero-Barrios’s treatment history has been
“inconsistent and marred” by her behavior, which has included “inappropriate sexual
boundaries with peers; difficulty managing emotions; motivational problems; rule
violations; aggressive/violent behavior; and sexual acting out.” It also found that
Roblero-Barrios has been revoked to the DOC four times for assaultive behavior and
noncompliance with treatment and that, as a result, she has spent “significant time”
outside of treatment at MSOP. The SRB noted that Olmsted County, MSOP staff,
2
Roblero-Barrios’s treatment team, and the risk assessor who worked with Roblero-
Barrios all opposed her petition. The SRB recommended that the petition be denied.
Roblero-Barrios requested that a judicial appeal panel reconsider the SRB’s
recommendation. The appeal panel appointed Thomas L. Alberg, Ph.D., to
independently review records and psychologically examine Roblero-Barrios. Dr. Alberg
submitted an evaluation report, and the appeal panel held a hearing at which Dr. Alberg
and Roblero-Barrios testified.
Dr. Alberg wrote in his report that he does not support Roblero-Barrios’s request
to be moved to a less restrictive setting. He stated that, because Roblero-Barrios has been
revoked and sent to the DOC numerous times, she has spent a “relatively short” period of
time in treatment since her commitment in 2001. Although Dr. Alberg noted that
Roblero-Barrios “has been engaged in treatment and appears to be doing relatively well”
since returning from her most recent incarceration, he stated that phase one of MSOP
“still appears to be an appropriate placement” for her. Dr. Alberg wrote that Roblero-
Barrios “needs to be able to demonstrate significant ability to abide by programming
rules and be able to demonstrate responsible behavior before [she] moves to phase two.”
He concluded that “there is no reason to believe that [Roblero-Barrios] would be able to
receive treatment in a non-secure setting without any danger to the public.”
Dr. Alberg testified at the appeal panel hearing that he concurred with Roblero-
Barrios’s mental health diagnoses. He stated that Roblero-Barrios’s scores on tests
indicated that she has several dynamic risk factors, which indicate an increased likelihood
of reoffending, and a “high degree of psychopathy.” Dr. Alberg opined that Roblero-
3
Barrios still needs in-patient sex-offender treatment and supervision, and he did not
believe any other treatment programs would take her in her current condition. He added
that “there really hasn’t been any significant change from [Roblero-Barrios’s] initial
commitment” and reiterated that she would not be able to receive treatment in a
nonsecure setting without presenting a danger to the public.
Roblero-Barrios testified that she requested discharge because she believes she has
progressed far enough through the program to warrant outpatient treatment. She admitted
that she still needs sex-offender treatment and stated that she would like to move to
Rochester Transitional Living Center or Alpha Human Services in Minneapolis. She
acknowledged that she had not been admitted to either program. Roblero-Barrios also
stated that her core treatment group is considered advanced and has begun some work for
the second phase of MSOP treatment. She said that she receives daily positive
reinforcement and support from staff for her changed behavior.
At the close of Roblero-Barrios’s case, the commissioner of human services
moved to dismiss Roblero-Barrios’s petition under Minn. R. Civ. P. 41.02(b) and Minn.
Stat. § 253D.28, subd. 2(d) (Supp. 2013).1 The appeal panel granted the motion and
denied Roblero-Barrios’s petition.
1
In 2013, the legislature recodified the statutes governing civil commitment of sexually
dangerous persons. See 2013 Minn. Laws, ch. 49 (codified at Minn. Stat. ch. 253D).
Here, we cite the current versions of the statutes because, for purposes of this case, the
legislature merely clarified pre-existing law without making any substantive changes.
See Braylock v. Jesson, 819 N.W.2d 585, 588–89 (Minn.2012) .
4
DECISION
We review de novo a judicial appeal panel’s dismissal of a civil-commitment
discharge petition under Minn. R. Civ. P. 41.02(b). Larson v. Jesson, ___ N.W.2d ___,
___, 2014 WL 2565834, at *2 (Minn. App. June 9, 2014). A person who is committed as
a sexually dangerous person may petition the special review board for a discharge or
provisional discharge from commitment. Minn. Stat. § 253D.27, subds. 1, 2 (Supp.
2013). “If the special review board recommends that the commissioner deny the
committed person’s discharge petition, then the committed person may request
reconsideration by the judicial appeal panel.” Larson, 2014 WL 2565834, at *2. The
committed person may be fully discharged only if the judicial appeal panel determines
that she “is capable of making an acceptable adjustment to open society, is no longer
dangerous to the public, and is no longer in need of inpatient treatment and supervision.”
Minn. Stat. § 253D.31 (Supp. 2013). The judicial appeal panel must consider “whether
specific conditions exist to provide a reasonable degree of protection to the public and to
assist the committed person in adjusting to the community.” Id. “If the desired
conditions do not exist, the discharge shall not be granted.” Id.
Likewise, the committed person cannot be provisionally discharged unless she “is
capable of making an acceptable adjustment to open society.” Minn. Stat. § 253D.30,
subd. 1(a) (Supp. 2013). Two factors to be considered when deciding whether to grant a
provisional discharge are:
(1) whether the committed person’s course of
treatment and present mental status indicate there is no longer
5
a need for treatment and supervision in the committed
person’s current treatment setting; and
(2) whether the conditions of the provisional discharge
plan will provide a reasonable degree of protection to the
public and will enable the committed person to adjust
successfully to the community.
Id., subd. 1(b) (Supp. 2013).
A petitioner before an appeal panel “bears the burden of going forward with the
evidence, which means presenting a prima facie case with competent evidence to show
that the person is entitled to the requested relief.” Minn. Stat. § 253D.28, subd. 2(d).
This is “only a burden of production.” Coker v. Jesson, 831 N.W.2d 483, 490 (Minn.
2013). The petitioner must “come forward only with sufficient, competent evidence that,
if proven, would entitle the petitioner to relief.” Id. “If the committed person satisfies
[her] burden of production, then the party opposing the petition ‘bears the burden of
proof by clear and convincing evidence that the discharge or provisional discharge should
be denied.’” Id. at 486 (quoting Minn. Stat. § 253B.19, subd. 2(d) (2012)).
The commissioner may move to dismiss the petition under Minn. R. Civ. P.
41.02(b) after the petitioner’s presentation of evidence is complete. See id. at 488. The
relevant portion of the rule provides:
After the plaintiff has completed the presentation of evidence,
the defendant, without waiving the right to offer evidence in
the event the motion is not granted, may move for a dismissal
on the ground that upon the facts and the law, the plaintiff has
shown no right to relief . . . .
6
Minn. R. Civ. P. 41.02(b); see also Coker, 831 N.W.2d at 490-91 (holding that
subsequent sentences of Minn. R. Civ. P. 41.02(b) do not apply because they conflict
with the commitment statute).
When deciding whether the petitioner has satisfied the burden of production, the
appeal panel must “view the evidence produced at the first-phase hearing in a light most
favorable to the committed person.” Coker, 831 N.W.2d at 491. It “may not weigh the
evidence or make credibility determinations.” Id. at 490. A trier of fact viewing the
evidence in a light most favorable to the petitioner can reject an independent examiner’s
opinion that the petitioner is not ready for discharge while also accepting the examiner’s
more favorable testimony. See id. at 492.
The appeal panel here concluded that Roblero-Barrios “has not produced any
competent evidence to meet her initial burden to establish a prima facie case for a
discharge or provisional discharge.” Roblero-Barrios insists that this conclusion was
wrong. She relies solely on Coker to argue that Dr. Alberg’s and her own testimony,
when viewed in the light most favorable to her, satisfied her burden of production. But
Roblero-Barrios’s evidence is significantly distinguishable from that in Coker.
Testimony from Coker’s independent examiner established that Coker had made
“considerable progress” in MSOP. Id. at 487. Dr. Alberg testified that Roblero-Barrios
has made “some” progress. Testimony from Coker’s examiner established that Coker
“had accomplished more than anyone else that he had evaluated at MSOP.” Id. Dr.
Alberg said that Roblero-Barrios has had “some ability to participate in the program” and
“some awareness of things such as an offense cycle.” Testimony from Coker’s examiner
7
established that one of Coker’s test results “could evidence a remission of sexual
deviance.” Id. at 487, 492. Dr. Alberg did not say the same about Roblero-Barrios. The
select portions of Dr. Alberg’s testimony that were favorable did not establish that
Roblero-Barrios is capable of making an acceptable adjustment to open society.
Neither did Roblero-Barrios’s own testimony. As she highlights, Roblero-Barrios
testified that she believes she has progressed far enough in MSOP, she is in an advanced
core group of phase one that has started some phase-two goals, she receives satisfactory
or better scores in the program, and she receives positive feedback from MSOP workers.
While suggesting progress, these statements fail to demonstrate that Roblero-Barrios no
longer needs MSOP treatment. They present no information about the current state of her
condition or what treatment she would receive outside MSOP.
Roblero-Barrios also insists that she submitted a provisional discharge plan, as
required for a provisional discharge. See Minn. Stat. § 253D.30, subd. 1(b)(2). The
record reflects that she completed a predischarge plan with the DOC. The special review
board considered it, as did Dr. Alberg. But to support her petition, the plan must be
“developed, implemented, and monitored by the executive director” of MSOP. Minn.
Stat. §§ 246B.01, subd. 2c, 253D.02, subd. 7, 253D.30, subd. 2 (Supp. 2013). And as the
appeal panel noted, Roblero-Barrios “has yet to reach the phase of treatment where a
provisional discharge plan is worked on with the [MSOP] treatment team.” Therefore,
Roblero-Barrios’s DOC predischarge plan is insufficient.
Although an appeal panel can reject an independent examiner’s unsupportive
testimony and accept the examiner’s favorable statements, the petitioner still has the
8
burden of producing evidence to meet the statutory discharge standards. Roblero-Barrios
failed to satisfy her burden. Her testimony and the favorable portions of Dr. Alberg’s
testimony did not demonstrate that she is capable of making an acceptable adjustment to
open society. At best, they established that Roblero-Barrios has had some positive results
during the earliest stage of treatment. Even viewing the evidence in the light most
favorable to Roblero-Barrios, she has failed to produce evidence that, if proven, would
entitle her to a provisional discharge. See Minn. Stat. § 253D.30, subd. 1(a). Roblero-
Barrios has therefore also failed to produce evidence that, if proven, would entitle her to a
discharge. See Minn. Stat. § 253D.31. The appeal panel did not err by granting the
commissioner’s motion to dismiss Roblero-Barrios’s petition.
Affirmed.
9
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971 F.2d 1487
3 NDLR P 54
Carlton JOHNSON, by Sharon JOHNSON as his next friend;Stonewall Jackson Smith, deceased, by and through FriedaSmith and John Smith; Melissa Camp, deceased, by andthrough Cheparney Camp; and the Spina Bifida Association ofAmerica; Plaintiffs-Appellants,andSharon Johnson; and the Association for Persons With SevereHandicaps, individually and on behalf of otherssimilarly situated, Plaintiffs,v.Webb THOMPSON, M.D., Chief of Staff and Medical Director,Oklahoma Children's Memorial Hospital, in his individual andofficial capacities; Jerry D. Razook, M.D., AttendingAssistant Professor of Pediatrics, Pediatric CardiologyService, Oklahoma Children's Memorial Hospital, in hisindividual capacity; Gregory Herbeck, M.D., InternDepartment of Pediatrics, Oklahoma Children's MemorialHospital, in his individual capacity; Cynthia Houdesheldt,M.D., in her individual capacity; Richard H. Gross, M.D.,in his individual capacity; William R. Burkett, PattyEaton, Reginald Barnes, W.E. Farha, Joseph W. Stafford, JaneHartley, Virginia Kidd, John E. Orr, Wayne C. Chandler,Members, Oklahoma Commission for Human Services; RobertBonar, Administrator, Children's Hospital of Oklahoma;Andrew A. Lasser, C.E.O., Oklahoma Medical Center; RonDorris, Chief Operation Officer, Oklahoma Medical Center;Laura Tull, R.N.; Ruth Tatyrek, M.S.W.; John Stuemky,M.D.; Michael P. Morris, M.D.; Benjamin Demps, Jr.,Director, Oklahoma Department of Human Services; J. AndrewSullivan, M.D.; David Yngve, M.D.; William E. Barnes,M.D.; Harriet Coussons, M.D.; and Alan Olson, M.D.,Defendants-Appellees,andThomas Pratt, M.D., J. Patrick Livingston, M.D., and W.J.Craig, M.D., in their individual capacities, Defendants.
No. 90-6107.
United States Court of Appeals,Tenth Circuit.
Aug. 6, 1992.
Larry A. Tawwater of Lampkin, McCaffrey & Tawwater, Oklahoma City, Okl. (Ben T. Lampkin and Jo L. Slama of Lampkin, McCaffrey & Tawwater, and James Bopp, Jr., Thomas J. Marzen, and Mary M. Nimz of The National Legal Center for the Medically Dependent and Disabled, Inc., Indianapolis, Ind., with him on the brief), for plaintiffs-appellants Carlton Johnson, Stonewall Jackson Smith, and Melissa Camp.
St. John Barrett, Washington, D.C., on the brief for plaintiff-appellant The Spina Bifida Ass'n of America.
Robert C. Margo (John Wiggins and Cynthia L. Sparling with him on the brief) of Short Barnes Wiggins Margo & Adler, Oklahoma City, Okl., for defendants-appellees Richard Gross, M.D., J. Andrew Sullivan, M.D., David Yngve, M.D., William Barnes, M.D., Harriet Coussons, M.D., Webb Thompson, M.D., Jerry Razook, M.D., Gregory Herbeck, M.D., John Stuemky, M.D., Alan Olson, M.D., and Cynthia Houdesheldt, M.D.
John G. Fears, Asst. General Counsel, Dept. of Human Services, Oklahoma Com'n for Human Services, Oklahoma City, Okl., for defendants-appellees Benjamin Demps, Jr., William R. Burkett, Patty Eaton, Reginald Barnes, W.E. Farha, Joseph W. Stafford, Jane Hartley, Virginia Kidd, John E. Orr, Wayne C. Chandler, Robert Bonar, Andrew A. Lasser, Ron Dorris, Laura Tull, R.N., and Ruth Tatyrek, M.S.W.
Before HOLLOWAY and EBEL, Circuit Judges, and OWEN, District Judge.*
EBEL, Circuit Judge.
1
This appeal requires us to confront a variety of issues regarding the medical treatment provided to certain infants born with spina bifida. We address primarily whether the infants' rights under the Constitution and under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, were violated. The district court entered judgment for the defendants. We affirm.
I. Background
2
Plaintiffs-Appellants Carlton Johnson, Melissa Camp, and Stonewall Jackson Smith were all born with myelomeningocele ("MM"), a type of spina bifida, at Oklahoma Children's Memorial Hospital ("OCMH"). The appellants allege that they received discriminatory treatment based on their handicap and on their socioeconomic status. The parties sharply dispute many of the facts in this case. However, the record supports the following factual background.
3
Defendant-appellee Dr. Richard H. Gross led a team of doctors and other health professionals ("the MM team") at OCMH who treated newborn infants with myelomeningocele. This treatment, which includes surgery and the administering of antibiotics, must take place soon after birth. In some cases, however, the infant will not survive even with treatment. In such cases, treating the infant merely prolongs his or her suffering.
4
In conjunction with his work at the hospital, Dr. Gross performed a study and published an article, entitled Early Management and Decision Making for the Treatment of Myelomeningocele, 72 Pediatrics 450 (1983). This study covered the period 1977 through 1982, during which time the MM team evaluated sixty-nine infants born with myelomeningocele. The MM team recommended "vigorous treatment," i.e., surgery and antibiotics, for thirty-six of the infants. One of these infants later died of unrelated causes; the rest survived. The team recommended "supportive care," i.e., no treatment other than making the infants as comfortable as possible, for the remaining thirty-three infants. The parents of five infants in the latter group rejected the recommendations, and three of these infants survived. Several other infants survived without treatment for several months and were subsequently treated. The remaining twenty-four infants receiving supportive care died.
5
The appellants allege that when the MM team made its recommendations, it considered both medical and nonmedical criteria, the latter including the parents' socioeconomic status. The appellants allege that the MM team discriminated against infants who came from families that the team believed lacked the intellectual and financial resources to provide the appropriate continuing care for a child with MM. According to the appellants, the MM team was more likely to recommend only supportive care for infants from such families. The appellants further allege that the MM team did not inform parents of its consideration of such factors when it made its recommendation. Although the appellees argue that the parents made the ultimate treatment decision, parents of sixty-four of the sixty-nine infants followed the MM team's recommendation. Thus, the appellants argue, the MM team was the true decisionmaker.
6
Melissa Camp and Stonewall Jackson Smith were participants in the study. The team recommended, and each infant received, only supportive care; both died. Carlton Johnson was born after completion of the study, but while the team allegedly continued to use the study's criteria to make its recommendation. The MM team recommended and Johnson received only supportive care. He survived without treatment for seventeen months, when surgery was finally performed. He was still alive at the time of trial, but suffered a severe mental handicap allegedly due, in part, to the team's failure to treat him immediately.
7
The hospital changed its practice in 1984. Since then, all infants born with spina bifida have received vigorous treatment, with the exception of one infant for whom treatment clearly would have been futile.
8
The parents of Camp, Smith, and Johnson, on behalf of their children, together with the Spina Bifida Association of America ("SBAA") and the Association for Persons with Severe Handicaps ("the plaintiffs"), filed suit against the members of the MM team, various other physicians, and a number of state officials. The plaintiffs sought class certification on behalf of 156 potential members, all infants born with MM at OCMH during the pendency of the study and all those born afterward while OCMH allegedly continued to use the study criteria. In their complaint, the plaintiffs asserted causes of action from violations of rights arising under, among other sources, the Due Process Clause, the Equal Protection Clause, section 504 of the Rehabilitation Act of 1973 ("section 504"), and state law. The plaintiffs sought compensatory and punitive damages along with declaratory and injunctive relief.
9
The district court denied the plaintiff's application for class certification, 125 F.R.D. 169. In addition, the court dismissed, pursuant to Fed.R.Civ.P. 12(b)(6), the cause of action brought under section 504. It granted summary judgment in favor of the defendants on the claims for declaratory and injunctive relief and accordingly dismissed from the action all defendants against whom the plaintiffs had sought only such relief. The court also granted summary judgment in favor of defendant Dr. Alan Olson.
10
Trial commenced in 1990 against the remaining defendants on the plaintiffs' claims based on 42 U.S.C. § 1983 and state common law negligence. Prior to submitting the case to the jury, however, the district court directed verdicts in favor of the defendants on all claims asserted on behalf of plaintiff Stonewall Jackson Smith, all claims asserted against defendants Dr. Gregory Herbeck and Dr. Jerry D. Razook, and all claims asserted under 42 U.S.C. § 1983. The court then submitted Carlton Johnson's and Melissa Camp's negligence claims against the remaining physician defendants to the jury, which found for the defendants.
11
Camp, Smith, and Johnson, together with the SBAA, filed a timely notice of appeal.1 We have jurisdiction pursuant to 28 U.S.C. § 1291.
II. Section 504
12
The appellants argue that the district court erred in dismissing their cause of action under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Because the court dismissed this claim on the pleadings pursuant to Fed.R.Civ.P. 12(b)(6), we review its order de novo. Ayala v. Joy Mfg. Co., 877 F.2d 846, 847 (10th Cir.1989).
13
At the time this action was brought, section 504 provided in relevant part:
14
No otherwise qualified handicapped individual in the United States, as defined in [29 U.S.C. § 706(7) ], shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency....
15
29 U.S.C.A. § 794 (West 1985).2 Thus, to state a claim under section 504, "a plaintiff must prove (1) that he is a 'handicapped individual' under the Act, (2) that he is 'otherwise qualified' for the [benefit] sought, (3) that he was [discriminated against] solely by reason of his handicap, and (4) that the program or activity in question receives federal financial assistance." Strathie v. Department of Transp., 716 F.2d 227, 230 (3d Cir.1983) (citation omitted); see also Rothschild v. Grottenthaler, 907 F.2d 286, 289-90 (2d Cir.1990).
16
The district court held that "[w]hen the intervention of parental decision, well based on adequate medical briefings or not, necessarily lies in the path of the infant's receipt of the benefit, it cannot be said either that the infant is [']otherwise qualified['] or that the discrimination is [']solely['] because of handicap." R., Vol. I, Doc. 158, at 1. The appellants argue that if the MM team's actions rendered parental consent a sham, such "consent" cannot be considered an intervening cause that makes section 504 inapplicable. We agree with this argument by the appellants, but nonetheless conclude that the district court's dismissal of the section 504 claim was proper, albeit for different reasons.
17
Whether section 504 applies to "individual medical treatment decisions involving handicapped infants" is a controversial issue that the Supreme Court has expressly left open. See Bowen v. American Hosp. Ass'n., 476 U.S. 610, 624, 106 S.Ct. 2101, 2110, 90 L.Ed.2d 584 (1986) (plurality opinion). The appellants argue that the MM team's conduct constituted discrimination in violation of section 504 based on two principal grounds. They argue primarily that the team recommended only supportive care for Camp, Smith, and Johnson because their families were of low socioeconomic status. They argue secondarily that, in general, the team recommended supportive care for those infants as to whom they anticipated a greater degree of handicap. In addition, the SBAA makes a third argument that the hospital discriminated against all infants born with MM. We deal with each argument in turn.
18
A. Discrimination Based on Socioeconomic Status
19
In essence, the appellants argue that but for (1) having spina bifida and (2) being of low socioeconomic status, the MM team would not have recommended that they receive only supportive care. Because of the discrimination based on these two conditions, the appellants assert a violation of section 504. To evaluate their claim, we consider whether the appellants have met section 504's four conditions.
20
The Supreme Court's decision in Bowen establishes that the first condition--that infants born with spina bifida are "handicapped individuals" under the Rehabilitation Act of 1973--has been met. Although the Supreme Court did not issue a majority opinion in that case, seven Justices agreed that the term encompasses "an infant who is born with a congenital defect." See Bowen, 476 U.S. at 624, 106 S.Ct. at 2110 (opinion of Stevens, J., joined by Marshall, Blackmun & Powell, JJ.); id. at 652, 106 S.Ct. at 2125 (opinion of White, J., joined by Brennan & O'Connor, JJ.).
21
The appellants' complaint fails to satisfy both the second and third conditions. However, for purposes of our holding with regard to these particular allegations, we need address only the third condition, that the discrimination resulted "solely by reason of [the] handicap." 29 U.S.C. § 794. In essence, the appellants argue that the team discriminated against them in relation to other infants with spina bifida because of their low socioeconomic status. Section 504, by its very terms, does not cover discrimination among similarly handicapped persons. See Clark v. Cohen, 613 F.Supp. 684, 693 (E.D.Pa.1985), aff'd on other grounds, 794 F.2d 79 (3d Cir.), cert. denied, 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 404 (1986). The word solely provides the key: the discrimination must result from the handicap and from the handicap alone. If others with the same handicap do not suffer the discrimination, then the discrimination does not result "solely by reason of [the] handicap." Here, the appellants allege that the discrimination resulted at least in part from their low socioeconomic status. That discrimination is not actionable under section 504. Accordingly, we hold that the district court correctly dismissed the causes of action based on those allegations for failure to state a claim under section 504.
22
B. Discrimination Based on Degree of Handicap
23
The appellants argue that the MM team "used the anticipated degree of handicap as a basis for recommending that beneficial medical treatment not be provided" and in so doing violated section 504. Corrected Br. in Chief of Appellants Carlton Johnson, Stonewall Jackson Smith and Melissa Camp at 30 [hereinafter Appellants' Br. in Chief]. We reject this argument because the appellants fail to satisfy the second condition of section 504, that they were "otherwise qualified" for the treatment they did not receive.
24
The "otherwise qualified" language, when considered in conjunction with the "solely" language of the third condition, poses a formidable obstacle for anyone alleging discrimination in violation of section 504 based upon the failure to receive medical treatment for a birth defect. Such a plaintiff must prove that he or she was discriminatorily denied medical treatment because of the birth defect and, at the same time, must prove that, in spite of the birth defect, he or she was "otherwise qualified" to receive the denied medical treatment. Ordinarily, however, if such a person were not so handicapped, he or she would not need the medical treatment and thus would not "otherwise qualify" for the treatment.
25
We agree, therefore, with the Second Circuit's analysis in United States v. University Hospital, State University of New York at Stony Brook, 729 F.2d 144 (2d Cir.1984). In that case, the court considered the application of section 504, and its second requirement in particular, to infants born with multiple birth defects. The court stated that the term otherwise qualifiedannot ordinarily be applied "in the comparatively fluid context of medical treatment decisions without distorting its plain meaning. In common parlance, one would not ordinarily think of a newborn infant suffering from multiple birth defects as being 'otherwise qualified' to have corrective surgery performed." Id. at 156. The court reasoned, "[w]here the handicapping condition is related to the condition(s) to be treated, it will rarely, if ever, be possible to say ... that a particular decision was 'discriminatory.' " Id. at 157.3
26
C. Discrimination Against All Infants with MM
27
The SBAA argues that the team discriminated against all infants with MM by designating them as subjects of a medical research project without their parents' knowledge or consent. Because all infants with MM were part of the study during its pendency, the SBAA contends the discrimination was "solely" due to the handicap, thereby meeting the third condition.
28
Under this argument, the appellants still fail to satisfy the second condition. The infants required the medical treatment sought only because they were born with MM. Thus, they were not "otherwise qualified" to receive the medical treatment denied to them because of the alleged discrimination.
29
Section 504 proscribes discrimination between the nonhandicapped and the "otherwise qualified" handicapped. It does not create any absolute substantive right to treatment. As the plurality stated in Bowen, " 'Section 504 seeks to assure evenhanded treatment'; 'neither the language, purpose, nor history of [section] 504 reveals an intent to impose an affirmative-action obligation' on recipients of federal financial assistance." Bowen, 476 U.S. at 640, 106 S.Ct. at 2118 (plurality opinion) (citations omitted). The plurality also noted that "nothing in the legislative history ... even remotely suggests that Congress contemplated the possibility that 'section 504 could or would be applied to treatment decisions[ ] involving defective newborn infants.' " Id. at 645 n. 33, 106 S.Ct. at 2121 n. 33 (citation omitted; alteration added). Without a showing that the nonhandicapped received the treatment denied to the "otherwise qualified" handicapped, the appellants cannot assert that a violation of section 504 has occurred.
30
In sum, we hold that the appellants failed to state a claim for violation of section 504 and that the district court therefore did not err in dismissing the claim brought under this section.
III. Section 1983
31
In their complaint below, the appellants asserted that discrimination based on socioeconomic factors violated their procedural due process and equal protection rights, that the MM team's failure to provide vigorous treatment violated their substantive due process rights, that discrimination on the basis of handicap violated their rights under section 504, and that the MM team's recommendations deprived the parents of the opportunity to make decisions regarding their children's care in violation of their fundamental right to privacy. For each of these alleged violations of federal rights, the appellants brought a cause of action under 42 U.S.C. § 1983. The district court granted the appellees' motions for directed verdicts on all of these causes of action. The appellants now argue that the district court erred in doing so.
32
We review de novo the district court's ruling on a motion for directed verdict. Hill v. Goodyear Tire & Rubber, Inc., 918 F.2d 877, 880 (10th Cir.1990). We look to the record to see if the evidence, construed in the light most favorable to the nonmoving party, supports only one resolution of the issue. See Ralston Dev. Corp. v. United States, 937 F.2d 510, 512 (10th Cir.1991).
33
A. Discrimination on the Basis of Socioeconomic Status
34
The appellants argue that discrimination on the basis of socioeconomic status violates their right to due process and equal protection. The district court directed a verdict on this issue after concluding that no evidence supported the claim:
35
The article makes reference to socioeconomic factors as being considered, theoretically, but we don't have any evidence here that the children who were selected for [vigorous] treatment enjoyed a socioeconomic status any different from the ones that were recommended for supportive [care]. We don't have any evidence that wealthy parents' babies lived and poor parents' babies died; we don't have any evidence of a racial basis or anything other than a medical determination based upon degree of handicap and not on mere presence of handicap.
36
R., Vol. XX, at 592.
37
On appeal, the appellants argue that "[t]he constitutional right to be free from discrimination requires no citation." Appellants' Br. in Chief at 38. However, the district court did not direct a verdict because of a defect in the appellants' legal theory--it directed the verdict because of a lack of evidence. The appellants do not point us to any evidence that the district court may have overlooked. Indeed, they do not discuss the evidence at all.
38
The appellants presented as evidence only Dr. Gross' article, which indicates that the MM team considered socioeconomic factors in making its recommendation. However, the appellants presented no evidence that these factors affected the outcome of the recommendations in their individual cases. In other words, there is no evidence to establish that the appellants' socioeconomic status was a factor that caused the recommendation that they receive only supportive care. After our review of the record, we therefore agree with the district court that the appellants presented no evidence of discriminatory harm and that the district court correctly granted the motion for a directed verdict.
B. Substantive Due Process
39
The appellants argue that the appellees' conduct violated their substantive due process rights by depriving them of their liberty interests in their own lives. Because of this deprivation, the appellants urge us to reverse the district court's decision to direct a verdict for the appellees on the appellants' section 1983 claim based on substantive due process.
40
The Due Process Clause does protect an interest in life. E.g., Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 271, 110 S.Ct. 2841, 2853, 111 L.Ed.2d 224 (1990). It does not follow, however, that the state necessarily has a constitutional duty to take affirmative steps to preserve life. In DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), the Supreme Court explained:
41
The [Due Process] Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.
42
Id. at 195, 109 S.Ct. at 1002.
43
In effect, the appellants argue that substantive due process implies a right to treatment. Such a right exists only in narrow circumstances, however. Specifically, "when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." Id. at 199-200, 109 S.Ct. at 1005 (citations omitted); see Youngberg v. Romeo, 457 U.S. 307, 324, 102 S.Ct. 2452, 2462, 73 L.Ed.2d 28 (1982) (involuntarily committed mental patient entitled to adequate medical care).
44
Infants born with spina bifida do not fall into the above category; accordingly, such infants cannot claim a constitutional right to treatment. Without such a right, the appellants cannot claim a deprivation of their liberty interest if the state failed to treat them. Cf. DeShaney, 489 U.S. at 196-97, 109 S.Ct. at 1003-04 ("If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them.") (footnote omitted).
45
The fact that the state did provide some medical services does not alter this analysis. The First Circuit recently stated in an analogous situation involving a section 1983 claim:
46
Although the [state] may have played some causal role in the harm, it did so only because [the plaintiff] voluntarily availed himself of a [state] service. The [state] did not force [the plaintiff], against his will, to become dependent upon it. Thus, the [state's] actions, while possibly negligent or even willfully indifferent or reckless, did not take on the added character of violations of the federal Constitution.
47
Monahan v. Dorchester Counseling Center, Inc., 961 F.2d 987, 993 (1st Cir.1992). Similarly, the fact that the appellants had received some medical benefits at OCMH did not entitle them to further treatment based on substantive due process.
48
We accordingly affirm the district court's decision to grant a directed verdict for the appellees on the appellants' section 1983 cause of action for violation of their substantive due process rights.
C. Section 504
49
The appellants assert a violation of their rights under section 504. We held in Part II of this opinion that no violation occurred, even taking all of the appellants' allegations as true. We therefore hold that the district court did not err in directing a verdict for the appellees on the appellants' section 1983 claim for violation of rights secured by section 504.
D. Parental Rights
50
The parents argue that the MM team deprived them of the right to choose what type of medical care their children should receive. They contend that this right is inherently part of the right to privacy protected by the Fourteenth Amendment. Thus, they argue, the district court erred in directing a verdict for the appellees on their section 1983 cause of action for violation of their right to privacy.
51
The parents did not file a notice of appeal in their own right, however, but rather took this appeal only as representatives of the infants. If a party's name does not appear in a timely filed notice of appeal, that party has not appealed any adverse judgment. Torres v. Oakland Scavenger Co., 487 U.S. 312, 314-18, 108 S.Ct. 2405, 2407-09, 101 L.Ed.2d 285 (1988). The parents therefore are not parties to this appeal except as representatives of the infants,4 and they have no standing to assert claims on their own behalf. Accordingly, we have no jurisdiction to hear the parents' argument regarding violation of their own rights.IV. Denial of Discovery of Identities of Study Participants
52
The appellants argue that the district court erred in denying their motion to compel discovery of the names of all participants in the MM team's study. We review orders relating to discovery for an abuse of discretion. See Willner v. Budig, 848 F.2d 1032, 1035-36 (10th Cir.1988), cert. denied, 488 U.S. 1031, 109 S.Ct. 840, 102 L.Ed.2d 972 (1989). We hold that the district court did not abuse its discretion in denying the motion.
53
The magistrate who initially decided the appellants' motion concluded that the privacy interests of the other study participants outweighed the appellants' need for the information. The appellants appealed this decision to the district court, which upheld the magistrate's judgment.
54
The appellants argue that the information sought went to the heart of their allegations. The appellants presented the MM team's article as preliminary evidence. The members of the team contend, however, that they did not actually make "recommendations" to the parents, but rather only presented options to them, and that they did not actually base medical decisions on socioeconomic data. Thus, the appellants sought testimony from other study participants to show the existence of a concerted plan to use socioeconomic criteria in making recommendations for appropriate treatment and to refute the appellees' contention that they merely presented options to parents who made the final choice. To obtain such testimony, the appellants sought to learn the identities of these other participants.
55
The decision whether to administer heroic life-sustaining treatment to a severely handicapped newborn is one of the most heartwrenching decisions a parent can be called upon to make. See American Academy of Pediatrics v. Heckler, 561 F.Supp. 395, 396-97 (D.D.C.1983). Parents who have had to make such a decision are entitled to privacy and confidentiality. We believe that the magistrate was correct to balance the relevance and necessity of the information the appellants requested against the rights of other participants to maintain their privacy. See Lukaszewicz v. Ortho Pharmaceutical Corp., 90 F.R.D. 708, 709 (E.D.Wis.1981).
56
The appellees did provide information about the care rendered to each participant in the study. However, the appellees did not disclose the identities of the other infants. Thus, if the appellants desired to impeach the appellees' representations regarding treatment to those other infants, the appellants had to ascertain the identities of the infants' families through other means. That no doubt presented a difficult--perhaps impossible--task for the appellants. Nonetheless, given the important interests of the other infants and their families to preserve the confidential nature of their contacts with the physicians and the hospital, we cannot say that the magistrate abused his discretion in refusing to order this discovery.
V. Other Issues
57
The appellants raise a number of other issues, which we need only discuss briefly.
A. Statute of Limitations
58
The appellants argue that the district court erred in submitting to the jury the issue of whether Melissa Camp's negligence claim was time-barred. Because her father testified without contradiction that he did not learn of the MM team's actions until 1986, the appellants argue that the district court should have directed a verdict on this issue in favor of Melissa Camp. Instead, the court submitted the issue to the jury, which decided that Melissa Camp's claims were barred by the statute of limitations.
59
Under Oklahoma law, the relevant statute of limitations requires that a plaintiff bring a suit within "two years from the date [the] plaintiff knew or should have known, through the exercise of reasonable diligence[,] of the existence of the death, injury or condition complained of." Redwine v. Baptist Medical Center of Okla., Inc., 679 P.2d 1293, 1295 (Okla.1983). Moreover, "[w]hether plaintiff exercised 'reasonable diligence' in ascertaining the cause of ... death is a question of fact to be determined by the jury." Id. Because the issue was not when Melissa's father learned of the relevant facts, but rather when he should have learned of them, the district court properly denied the motion for a directed verdict.5
B. Class Certification
60
The appellants contend that the district court erred in denying their application for class certification. We review the district court's decision for abuse of discretion. Pilots Against Illegal Dues v. Air Line Pilots Ass'n, 938 F.2d 1123, 1134 (10th Cir.1991). The district court held that the number of infants denied vigorous treatment was too small to meet the numerosity requirement of Fed.R.Civ.P. 23(a)(1). Given our deferential standard of review, we cannot say that the court's decision was in error. See Rex v. Owens, 585 F.2d 432, 436 (10th Cir.1978) ("no set formula" to determine whether numerosity requirement was met; instead, this is a fact-specific inquiry best left to discretion of district court).
C. Declaratory and Injunctive Relief
61
The appellants argue that the district court erred in granting summary judgment to the appellees on the claims for declaratory and injunctive relief. Declaratory relief is discretionary, Green v. Mansour, 474 U.S. 64, 72, 106 S.Ct. 423, 427, 88 L.Ed.2d 371 (1985), and we find no abuse of that discretion in the court's declining to exercise jurisdiction over the appellants' claims for such relief. With regard to injunctive relief, we agree with the district court that the appellants' failure to present any evidence of continuing discrimination since 1984 renders concerns of future recurrence purely speculative. We therefore affirm the district court's grant of summary judgment on these issues.
D. Jury Instructions
62
The appellants argue that the district court instructed the jury incorrectly regarding the differing standards of conduct applicable to appellees Dr. Gross and Dr. Thompson. We find no error in the district court's reliance on Fox v. Oklahoma Memorial Hospital, 774 P.2d 459 (Okla.1989), which held that a plaintiff must show gross negligence to overcome the sovereign immunity enjoyed by a physician employed at a state hospital at the time of Melissa Camp's birth. Id. at 461. Furthermore, the court specifically explained to the jury that it was to apply a different standard of negligence to Carlton Johnson's claims because they arose at a time when Oklahoma law was different. See R., Vol. V, Doc. 480, Instruction No. 15.
63
The appellants also challenge the adequacy of the informed consent instruction given to the jury. However, the appellants failed to object to the instruction below, and on review we do not find the instruction to be plain error.
E. Summary Judgment for Dr. Olson
64
The appellants appeal the district court's denial of their motion for reconsideration of the dismissal of appellee Dr. Alan Olson on summary judgment. The standard of review for the denial of a motion for reconsideration depends on the nature of the underlying decision. See Federal Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348-49 (3d Cir.1986). In this case, because the motion was for reconsideration of summary judgment, our review is de novo. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). After reviewing the record, we agree with the appellees that Dr. Olson's status as an attending physician did not connect him sufficiently to the treatment decisions made and that summary judgment was appropriate.
65
F. Directed Verdicts for Dr. Herbeck and Dr. Razook
66
The appellants argue that the district court incorrectly directed verdicts for appellees Dr. Herbeck and Dr. Razook regarding the decision to administer supportive care to Stonewall Jackson Smith. The appellants had argued below that Smith's mother had not given informed consent to withhold vigorous treatment.
67
Under Oklahoma law, a plaintiff must prove that injury resulted in order to present a prima facie case of breach of duty to inform. Scott v. Bradford, 606 P.2d 554, 557-59 (Okla.1979). The appellees sought to avoid liability by showing that Smith would not have survived even with vigorous treatment. In support, they introduced evidence that Smith suffered from anencephaly, a congenital absence of the brain; when such a condition is present, an infant cannot survive with or without treatment.
68
In response, the appellants introduced evidence that the test the appellees used to test for anencephaly was not always accurate. They also introduced testimony that Smith might have survived if the test were inaccurate and he did not have anencephaly. The appellants presented no evidence, however, that the test was in fact inaccurate in this particular case or that Smith would have survived. They therefore failed to show that an injury resulted from the lack of informed consent, as required under Scott. Under these circumstances, we affirm the district court's decision to direct a verdict.
G. Other Rulings
69
The appellants challenge various evidentiary rulings and a ruling denying a mistrial. After reviewing the record, we find no abuse of discretion on these rulings.
70
The appellants also list several other issues in their "Statement of the Issues," but fail to brief them. In general, we do not address issues not briefed. See American Airlines v. Christensen, 967 F.2d 410, 415 n. 8 (10th Cir.1992) ("It is insufficient merely to state in one's brief that one is appealing an adverse ruling below without advancing reasoned argument as to the grounds for appeal.") (citing Fed.R.App.P. 28(a)(4), recodified as Fed.R.App.P. 28(a)(5)).
VI. Conclusion
71
Because we hold that the district court committed no reversible error, we AFFIRM its judgment.
*
Honorable Richard Owen, Senior District Judge, United States District Court for the Southern District of New York, sitting by designation
1
For convenience, we will refer to the infants Camp, Smith, and Johnson as "the appellants."
2
Section 504 was amended in 1986, after the appellants first filed this action, and again in 1988. Neither amendment substantively affects the meaning of the section as relevant to the instant appeal
3
Several jurists have hypothesized situations in which the handicap that forms the basis of the section 504 discrimination bears no relation to the medical treatment sought but denied. For example, Justice White stated in Bowen:
An esophageal obstruction, for example, would not be part and parcel of the handicap of a baby suffering from Down's syndrome, and the infant would benefit from and is thus otherwise qualified for having the obstruction removed in spite of the handicap. In this case, the treatment is completely unrelated to the baby's handicapping condition. If an otherwise normal child would be given the identical treatment, so should the handicapped child if discrimination on the basis of the handicap is to be avoided.
Bowen, 476 U.S. at 655, 106 S.Ct. at 2127 (footnote omitted) (White, J., dissenting); see also University Hospital, 729 F.2d at 162 (Winter, J., dissenting). We do not decide whether section 504 might apply in such a situation, but it would seem that the "otherwise qualified" condition might be satisfied under such a scenario. See Glanz v. Vernick, 750 F.Supp. 39, 45-46 (D.Mass.1990) (AIDS patient denied treatment for ear perforation stated claim under section 504). We do not find such a situation here.
4
Sharon Johnson, Carlton Johnson's mother, originally appeared as a plaintiff. She voluntarily dismissed her claims without prejudice and is no longer a party except as a representative of her son. See R., Vol. V, Doc. 469, at 2
5
In view of our resolution of this issue, the appellee's Motion to Strike Juror Affidavit and Request for Corrected Brief in Chief is moot
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329 F.2d 360
In the Matter of Leo Jones, Bankrupt.Leo JONES and Annie Ruth Jones, Petitioners-Appellants,v.BANK OF LINCOLNWOOD, Respondent-Appellee.
No. 14345.
United States Court of Appeals Seventh Circuit.
March 20, 1964.
Albert Koretzky, Chicago, Ill., for appellants.
Lewis W. Schlifkin, James C. Wickline, A. E. Peterson, Chicago, Ill., for Bank of Lincolnwood.
Before HASTINGS, Chief Judge, and SCHNACKENBERG and KILEY, Circuit judges.
HASTINGS, Chief Judge.
1
Petitioners, Leo Jones and Annie Ruth Jones, his wife, appeal from an order of the district court affirming an order of the referee in bankruptcy dismissing their petition against respondent Bank of Lincolnwood.
2
The district court modified the referee's order to provide that such dismissal be without prejudice to petitioners' right to make their claims and seek relief in the state courts.
3
Petitioners filed the petition, during bankruptcy proceedings against Leo Jones, seeking an order declaring a trust deed to be invalid. The trust deed was given to secure a loan by respondent to petitioners.
4
Petitioners alleged the trust deed was procured by fraud, lacked valid consideration and that a note secured by the trust deed was tainted with usury.
5
Petitioners contend that upon sale of the property in question through bankruptcy proceedings, Leo Jones is entitled to a homestead exemption under Illinois law1 and Annie Jones an inchoate dower interest.
6
Respondent was the owner of a note in the amount of $7,789.80, which included principal of $5,564, together with interest computed for a period of five years. The note was secured by a trust deed running to Chicago Title and Trust Company as trustee. Record title to the property in question at the time the trust deed was executed was in Lawndale National Bank as trustee under an Illinois land trust.
7
Petitioners, who were in possession of the premises at the time the trust deed was executed, signed a written order to Lawndale to execute the trust deed to Chicago Title and Trust Company. Respondent, believing petitioners to be the beneficial owners of the property, accepted the order and forwarded it to Lawndale. Lawndale returned the order and by letter advised respondent that petitioners had no interest in the trust.
8
Respondent wrote to an agent of Lawndale, agreeing to repay a loan made by Friendly Loan Company to petitioners upon condition that all interest in the property would be released to petitioners. The letter was accompanied by the trust deed and note for execution.
9
The agent obtained execution of the trust deed and note, and returned them to respondent with written instructions concerning recording the trust deed and repaying petitioners' loan. Petitioners received a copy of this letter. The trust deed was recorded.
10
Respondent received a written direction from petitioners to disburse the proceeds of its loan. It issued checks in reliance upon this direction.
11
Respondent, by letter to an agent of Lawndale, requested an assignment of beneficial interest in the trust to petitioners. Respondent was informed by letter that such an assignment could not be made.
12
Title was then conveyed by Lawndale, as trustee, to petitioners 'subject to the lien of every trust deed or mortgage (if any there be) of record in said county, given to secure the payment of money and remaining unreleased on the date hereof.' Petitioners executed a written guaranty in which they assumed and agreed to pay the note secured by the trust deed and agreed to be bound by all the terms, provisions and conditions of the note and trust deed.
13
Pursuant to the written direction of petitioners, the proceeds of this loan were disbursed to pay their debts and for improvements on their property. Petitioners made nine monthly payments to respondent under the trust deed and then defaulted. Leo Jones was adjudicated a bankrupt and during the bankruptcy proceedings filed the present petition, in which his wife joined, attacking the validity of the trust deed.
14
The referee in bankruptcy conducted hearings and at the close of petitioners' case entered an order dismissing the petition. In his order the referee made specific findings of fact and conclusions of law to the effect that respondent was not guilty of fraud, misrepresentation or in charging usurious interest rates in connection with the execution of the trust deed; that respondent was a bona fide purchaser for value; that respondent had relied upon record title in disbursing funds under the trust deed; that petitioners had waived their homestead and dower interests in the property in the trust deed; and that petitioners had ratified the transaction and were estopped to deny the validity of the trust deed.
15
The district court, entertaining a petition for review, affirmed the referee's order.
16
The referee made findings of fact left undisturbed by the trial court on its review. These are amply supported by the record and are not clearly erroneous. They fully support the conclusions reached by the referee and sustained by the district court. In Re Rafdo Enterprises, Inc., 7 Cir., 297 F.2d 505, 507 (1962).
17
It is clear to us, as it was to the referee and the district court, that respondent Bank of Lincolnwood is a bona fide mortgagee and that it disbursed its loan in reliance upon the record title in good faith and upon the written direction of and for the sole benefit of petitioners.
18
It is apparent that by the guaranty, the disbursement certificate, the direction to Lawndale Bank to execute the trust deed, all signed by petitioners, and by accepting the benefits of the loan and making payments thereon, petitioners ratified the entire transaction under scrutiny and are estopped to deny the validity of the trust deed. See Hilton v. Meier, 257 Ill. 500, 100 N.E. 962 (1913); Loughran v. Gorman, 256 Ill. 46, 99 N.E. 886 (1912).
19
We find no merit in the contention that petitioners' waiver of homestead was limited to and effective only for their deed in trust to Lawndale Bank.
20
Finding no error, the order of the district court appealed from is affirmed.
21
Affirmed.
1
Sections 1 and 4 of Ill.Rev.Stat. ch. 52 (1959) provide:
'1. Homestead.) 1. Every householder having a family, shall be entitled to an estate of homestead, to the extent in value of $2,500, in the farm or lot of land and buildings thereon, owned or rightly possessed, by lease or otherwise, and occupied by him or her as a residence; and such homestead, and all right and title therein, shall be exempt from attachment, judgment, levy or execution, sale for the payment of his debts, or other purposes * * * except as hereinafter provided.'
'4. How estate extinguished.) 4. No release, waiver or conveyance of the estate so exempted, shall be valid, unless the same is in writing, subscribed by the householder and his or her wife or husband, * * * and acknowledged in the same manner as conveyances of real estate are required to be acknowledged * * *.'
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IN THE COURT OF APPEALS OF TENNESSEE
STATE OF TENNESSEE, )
FILED
C/A NO. 03A01-9701-CV-00002
DEPARTMENT OF HUMAN SERVICES, )
) September 29, 1997
Plaintiff-Appellee, )
) Cecil Crowson, Jr.
) Appellate C ourt Clerk
) APPEAL AS OF RIGHT FROM THE
v. ) HAWKINS COUNTY JUVENILE COURT
)
)
)
)
REBECCA WALLACE RUSSELL, )
) HONORABLE JOHN S. ANDERSON,
Defendant-Appellant.) JUDGE
For Appellant For Appellee
MARK A. SKELTON JOHN KNOX WALKUP
Rogersville, Tennessee Attorney General and Reporter
Nashville, Tennessee
DOUGLAS EARL DIMOND
Assistant Attorney General
General Civil Division
Nashville, Tennessee
MEMORANDUM OPINION
AFFIRMED AND REMANDED Susano, J.
1
The trial court terminated the parental rights of
Rebecca Wallace Russell (“Mother”) in and to her minor child,
Kayla Michelle Wallace, whose date of birth is February 10, 1993.
Mother appealed, arguing that the evidence preponderates against
the trial court’s determination that there is clear and
convincing evidence that termination is in the child’s best
interest and that one or more of the conditions set forth in
T.C.A. § 37-1-147(d)(1)(A)-(C) (Supp. 1995)1 exist in this case.
We affirm.
A parent has a fundamental right to the care, custody
and control of his or her child. Stanley v. Illinois, 405 U.S.
645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). However, this right
is not absolute; it may be terminated if there is clear and
convincing evidence justifying such termination under the
applicable statute. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct.
1388, 71 L.Ed.2d 599 (1982). In the instant case, we are called
1
At the time of the hearing below, i.e., May 18, 1995, T.C.A. § 37-1-
147(d) provided, in pertinent part, as follows:
After hearing evidence on a termination petition, the
court may terminate parental rights if it finds on the
basis of clear and convincing evidence that
termination is in the child’s best interest and that
one (1) or more of the following conditions exist:
(1) The child has been removed from the custody of the
parent by the court for at least one (1) year and the
court finds that:
(A) The conditions which led to the removal or other
conditions which in all reasonable probability would
cause the child to be subjected to further abuse or
neglect and which, therefore, prevent the child’s
return to the care of the parent(s) still persists;
(B) There is little likelihood that these conditions
will be remedied at an early date so that the child
can be returned to the parent in the near future; and
(C) The continuation of the legal parent and child
relationship greatly diminishes the child’s chances of
early integration into a stable and permanent
home;....
2
upon to determine whether the evidence preponderates against the
trial court’s finding that there is clear and convincing evidence
in the record (a) that termination of Mother’s parental rights is
in the best interest of the child, and (b) that one or more of
the conditions set forth in T.C.A. § 37-1-147(d)(1)(A)-(C) (Supp.
1995) exist in this case. See Rule 13(d), T.R.A.P.
We have carefully reviewed the record in this case.
The evidence does not preponderate against the trial court’s
findings. On the contrary, we find clear and convincing evidence
in the record that termination of Mother’s parental rights is in
the best interest of Kayla Michelle Wallace; that the child was
removed from Mother in May, 1993, more than one year prior to the
hearing below; and that one or more of the conditions set forth
in T.C.A. § 37-1-147(d)(1)(A)-(C) (Supp. 1995) exist.
We affirm this case pursuant to the provisions of Rule
10(b), Ct. of App. R.2 Costs on appeal are taxed against the
appellant. This case is remanded to the trial court for
enforcement of its judgment and collection of costs assessed
below, all pursuant to applicable law.
__________________________
Charles D. Susano, Jr., J.
2
Rule 10(b), Ct. of App. R., provides as follows:
The Court, with the concurrence of all judges
participating in the case, may affirm, reverse or
modify the actions of the trial court by memorandum
opinion when a formal opinion would have no
precedential value. When a case is decided by
memorandum opinion it shall be designated “MEMORANDUM
OPINION,” shall not be published, and shall not be
cited or relied on for any reason in a subsequent
unrelated case.
3
4
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
Herschel P. Franks, J.
5
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190 P.3d 54 (2008)
DOLBY
v.
WORTHY.
No. 81025-7.
Supreme Court of Washington, Special Department.
August 5, 2008.
Disposition of petition for review. Denied.
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817 F.2d 1047
55 USLW 2617, 16 Collier Bankr.Cas.2d 934
In re DIAZ CONTRACTING, INC., A New Jersey Corporation (Debtor).DIAZ CONTRACTING, INC., A New Jersey Corporationv.NANCO CONTRACTING CORP., A New York Corporation; Quickway,Inc., A Pennsylvania Corporation.Appeal of NANCO CONTRACTING CORP.
No. 86-5198.
United States Court of Appeals,Third Circuit.
Argued Dec. 15, 1986.Decided April 30, 1987.As Amended May 12, 1987.
Michael A. Mulqueen, (argued), Ross and Cohen, New York City, for appellant.
Joseph Lubertazzi, Jr. (argued), Richard W. Hill, McCarter and English, Newark, N.J., for appellee.
Before HIGGINBOTHAM and BECKER, Circuit Judges, and DUMBAULD, District Judge.*
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
1
This action began as an adversary proceeding before the United States Bankruptcy Court for the District of New Jersey (Camden Division) to recover monies owed. Defendant-appellant Nanco Contracting Corporation ("Nanco") appeals from the order of the district court affirming the prior order of the bankruptcy court that, in pertinent part, denied Nanco's motion to dismiss the complaint of plaintiff-appellee Diaz Contracting, Incorporated ("Diaz"). We must determine whether the district and bankruptcy courts erred in refusing to enforce a forum selection clause in the parties' contract requiring that all actions arising under the contract be brought in the courts of the State of New York. For the reasons set forth below, we will reverse the judgment of the district court.
I.
2
"[O]rders denying a pretrial motion to enforce a forum selection clause are reviewable by courts of appeals on three grounds: as interlocutory decisions under 28 U.S.C. Sec. 1291(a)(2) (1982), as collaterally final orders under 28 U.S.C. Sec. 1291, and under the All Writs Act, 28 U.S.C. Sec. 1651 (1982)." General Eng'g Corp. v. Martin Marietta Alumina, Inc., 783 F.2d 352, 355-56 (3d Cir.1986) (citing Coastal Steel Corp. v. Tilghman Wheelabrator, Ltd., 709 F.2d 190, 193-97 (3d Cir.), cert. denied, 464 U.S. 938, 104 S.Ct. 349, 78 L.Ed.2d 315 (1983)). Accordingly, we may properly exercise appellate jurisdiction over the order of the district court upholding the non-enforcement in the bankruptcy court of the contractual forum selection clause between Nanco and Diaz.
3
This appeal arises out of an adversary proceeding instituted by Diaz in connection with its petition under Chapter 11 of the Bankruptcy Code, 11 U.S.C. Secs. 541 & 542 (1982), against Nanco. In that proceeding, Diaz moved to recover, as property of the debtor's estate, certain monies allegedly owed to it by Nanco.1 Nanco filed a cross-motion for an order dismissing the proceeding on the basis of the forum selection clause in the parties' subcontract that requires actions arising thereunder to be brought in the courts of the State of New York. Nanco relied upon this Court's opinion in Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190 (3d Cir.), cert. denied, 464 U.S. 938, 104 S.Ct. 349, 78 L.Ed.2d 315 (1983), wherein now Chief Judge Gibbons noted the rule, first articulated by the Supreme Court in The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), "that a forum selection clause is presumptively valid." 709 F.2d at 202. Acknowledging the applicability of Coastal Steel and The Bremen, the bankruptcy court nevertheless apparently concluded that Diaz had overcome the presumption of enforceability by demonstrating financial difficulty. See Appendix ("App.") at A37-38. Specifically, the bankruptcy court stated:
4
As I read the Coastal Steel case, I believe it does leave the Court with a certain degree of discretion and certainly allows them to take into account certain mitigating or equitable factors.
5
* * *
6
I am familiar with the financial difficulty of this particular Chapter 11 debtor. Mr. Diaz, both by way of his corporate filing and by several other related filings, is before this Court and has experienced great difficulties so far as cash flow of the estate is concerned and I think I am bound to take that into consideration.
7
App. at A37-38. The bankruptcy judge, accordingly, refused to direct the parties' dispute to the courts of New York.
8
Nanco subsequently moved before the United States District Court for the District of New Jersey for leave to appeal the bankruptcy court's denial of its motion to dismiss. The district court granted Nanco's motion for leave to appeal. The order of the bankruptcy court was subsequently affirmed by the district court which noted that it "[could] not find on the record before it that [the bankruptcy court] abused [its] discretion and th[us would] not second-guess [that] decision." App. at A63.
9
On appeal, Nanco argues that the district court erroneously applied an abuse of discretion standard of review to the bankruptcy court's determination that the forum selection clause need not be enforced, and that both courts erred as a matter of law in refusing to enforce the clause. Diaz responds that this Court's decision in Zimmerman v. Continental Airlines, Inc., 712 F.2d 55 (3d Cir.1983), cert. denied, 464 U.S. 1038, 104 S.Ct. 699, 79 L.Ed.2d 165 (1984), modified our prior holding in Coastal Steel and renders forum selection clauses non-binding on bankruptcy courts. Based on Zimmerman, Diaz maintains that the purposes underlying the broad jurisdiction of the bankruptcy courts require that their decisions to enforce forum selection clauses be discretionary. Thus, Diaz argues, the district court properly reviewed the bankruptcy court's determination that the forum selection clause not be enforced for an abuse of discretion. Finally, Diaz argues that under whatever standard the enforceability determination is reviewed, it carried its burden of establishing that, on the facts of this case, litigation in another jurisdiction would be unreasonable. We turn first to a review of the law governing the enforceability of forum selection clauses.
II.
A.
10
A preliminary concern in determining the enforceability of a forum selection clause is what law, state or federal, governs that determination. In General Eng'g Corp. v. Martin Marietta Alumina, Inc., 783 F.2d 352 (3d Cir.1986), this Court "correct[ed] the assumption that federal courts are bound as a matter of federal common law to apply The Bremen standard to forum selection clauses." Id. at 356. Instead, we noted that the law of the state or other jurisdictions whose law governs the construction of the contract generally applies to the enforceability determination unless "a significant conflict between some federal policy or interest and the use of state law [exists]." Id. (quoting Miree v. DeKalb County, Georgia, 433 U.S. 25, 31-32, 97 S.Ct. 2490, 2494-95, 53 L.Ed.2d 557 (1977) (emphasis in original)); cf. Coastal Steel, 709 F.2d at 201 ("It is not entirely clear why, absent a [federal] statute ..., the enforceability of a contractual forum selection clause should properly be divorced from the law which in other respects governs the contract.").
11
In the instant appeal, the parties' Subcontract Agreement provides that "[t]he rights of the parties shall be construed pursuant to the laws of the state of New York." App. at A-22.2 Under New York law, the enforceability of forum selection clauses is governed by the standard enunciated in The Bremen. See Bense v. Interstate Battery Sys. of Am., 683 F.2d 718, 721 (2d Cir.1982) (quoting The Bremen, 407 U.S. at 15, 92 S.Ct. at 1916) (forum selection clauses generally enforced absent a strong 'show[ing] that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching'). Moreover, this Court, in Coastal Steel, held that The Bremen standard was applicable even in a bankruptcy proceeding.3 See Coastal Steel, 709 F.2d at 202. Similarly, the Second Circuit has recognized the applicability of that standard in bankruptcy courts as well as district courts exercising federal question jurisdiction.4 See Envirolite Enter. v. Glastechnische Indus. Peter Lisec Gesellschaft M.B.H., 53 B.R. 1007 (S.D.N.Y.1985) (applying The Bremen ), aff'd, 788 F.2d 5 (2d Cir.1986). Thus, the determination whether the forum selection clause in the instant action should be enforced must be made in accordance with the standard enunciated in The Bremen.5
B.
12
In The Bremen, the Supreme Court chronicled the historic disapproval of forum selection clauses by American courts. Notwithstanding such disapproval, the Court adopted a new, more expansive approach to the enforceability of forum selection clauses, one that, the Court maintained, "accords with ancient concepts of freedom of contract...."6 407 U.S. at 11, 92 S.Ct. at 1914. In addition, the Court stressed the elimination of uncertainties in trade relationships as a paramount goal undergirding the presumptive enforceability of forum selection clauses. The Court thus concluded that a forum selection clause "is prima facie valid and should be enforced unless enforcement is shown by the resisting party to be 'unreasonable' under the circumstances." Id. at 10, 92 S.Ct. 1913.
13
Setting forth the elements of proof under this new approach, this Court in Coastal Steel stated that
14
a forum selection clause is presumptively valid and will be enforced unless the party objecting to its enforcement establishes (1) that it is the result of fraud or overreaching, (2) that enforcement would violate a strong public policy of the forum, or (3) that enforcement would in the particular circumstances of the case result in litigation in a jurisdiction so seriously inconvenient as to be unreasonable.
15
709 F.2d at 202. Applying this test to the facts before it,7 the bankruptcy court apparently concluded that the third prong of that test had been satisfied due to Diaz's "financial difficulty." App. at A38. The district court, reviewing the bankruptcy court order denying Nanco's motion to dismiss, similarly focused on the third prong and was satisfied that Diaz's "perilous financial condition" justified the bankruptcy court's refusal to enforce the forum selection clause.8 App. at A62. Thus, both courts rested their decisions on the "unreasonableness" of remitting Diaz's contract claims to the courts of the State of New York.9 Nanco now challenges the sufficiency of Diaz's purported "financial difficulty" as the sole ground for non-enforcement of the parties' contractual forum selection clause.
16
In Martin Marietta, we reaffirmed the rule that a party objecting to the enforcement of a forum selection clause as "unreasonable" must meet a strict standard of proof. Interpreting the command of The Bremen, we observed:
17
That the Court intended ... a strict standard in favor of enforcement is shown by the Court's admonition that enforcement may be denied only where it would be 'seriously inconvenient,' such that the resisting party 'would be effectively deprived of its day in court.' The Court underscored this rule by observing that absent allegations that the inclusion of the forum selection clause was a product of fraud or coercion, 'where it can be said with reasonable assurance that at the time they entered the contract, the parties ... contemplated the claimed inconvenience, it is difficult to see why any such claim of the inconvenience should be heard to render the forum selection clause unenforceable.'
18
783 F.2d at 356 (citations omitted) (emphasis in original). We must determine whether Diaz met its heavy burden under The Bremen of proving "that enforcement would be unreasonable and unjust." The Bremen, 407 U.S. at 15, 92 S.Ct. at 1916.
19
Diaz attempts to demonstrate that its financial condition renders enforcement of the forum selection clause unreasonable because "trial in the contractual forum will be so gravely difficult and inconvenient that [Diaz] ... will for all practical purposes be deprived of [its] day in court." The Bremen, 407 U.S. at 18, 92 S.Ct. at 1917. Specifically, Diaz first maintains that, unlike the debtor in Coastal Steel, it has been unable to propose a satisfactory reorganization plan under the Bankruptcy Code for the discharge of its debts. This fact, Diaz argues, counsels against requiring it to commence new litigation in New York. Such a requirement would adversely affect the reorganization, the success of which, according to Diaz, "depends on the debtor's ability to marshall its assets." Brief for the Appellee at 11. Second, Diaz asserts that, although its current counsel maintains an office in New York,10 the chief attorney in this litigation is not admitted to the New York Bar and that, at any rate, McCarter & English would not represent it in a state construction action. Thus, "Diaz would be forced to locate another attorney, and would lose the benefit of the knowledge of this litigation gained by his present attorneys." Id. Finally, Diaz simply asserts that it has no funds to finance additional litigation and that its precarious financial condition greatly reduces its chances of retaining new counsel even on a contingency fee basis.
20
Nanco suggests that Diaz's failure to submit evidence to substantiate its position that its contractual claims should be retained by the bankruptcy court amounts to a failure to meet the unreasonableness prong of The Bremen test. In response, Diaz maintains that its poor financial state was understood by both parties and by the court, and therefore, there was no need to submit any evidence.11 Indeed, the bankruptcy court cited its familiarity with Diaz's financial condition as its basis for refusing to enforce the forum selection clause. See App. at A38. Nevertheless, neither the bankruptcy court's intimate knowledge of nor Nanco's concessions concerning Diaz's precarious financial condition operates to discharge its burden of establishing grave inconvenience under The Bremen. Although Diaz arguably demonstrated some inconvenience in litigating in the contractual forum,12 its assertions are insufficient to meet its heavy burden of proving unreasonableness and injustice. " 'Mere inconvenience or additional expense is not the test of unreasonableness, since it may be assumed that the plaintiff received under the contract consideration for these things.' " Deolalikar v. Murlas Commodities, Inc., 602 F.Supp. 12, 15 (E.D.Pa.1984) (quoting Central Contracting Co. v. Maryland Casualty Co., 367 F.2d 341, 344 (3rd Cir.1966)).
21
Stripped to its essence, Diaz's contention is that a debtor in bankruptcy is entitled to a more lenient standard of proof. This is simply not the law. In Coastal Steel, this Court enforced a forum selection clause against a debtor in bankruptcy thereby requiring the debtor to commence its action in England rather than New Jersey. Similarly, in Envirolite Enterprises, the district court rejected the argument that the debtor-plaintiff need not comply with the contractual forum selection clause that required that litigation be brought in Austria. Here, Diaz has not carried its burden of demonstrating that requiring that litigation be brought in New York as opposed to New Jersey would effectively deprive it of its day in court.
22
We are also not persuaded by Diaz's attempt to distinguish its situation from that of the debtor in Coastal Steel. The fact that Diaz has been unable to confirm a plan of reorganization has little or no bearing on its ability to commence litigation in New York. Moreover, Diaz has not explained why its current counsel cannot or will not represent it in litigation there. Nor has it explained why transfer of its case to another attorney--whether with McCarter & English or not13--would pose unique problems that would mandate non-enforcement of the forum clause. It is not uncommon for legal representation to change hands during the course of very complex and lengthy litigation. We are simply unable to discern why Diaz's breach of contract claims against Nanco are such that new representation would prove devastating. Finally, Diaz has not established, or even maintained, that it cannot secure new representation to pursue its claims in New York. Instead, Diaz merely claims that "[i]ts chances of finding another attorney ... are slim to none." Brief for the Appellee at 12 (emphasis added).
23
For the foregoing reasons, we conclude that the bankruptcy court incorrectly found that Diaz met its burden under The Bremen. We turn next to the district court's review of the bankruptcy court's order denying Nanco's motion to dismiss based on the forum selection clause.
III.
24
In affirming the bankruptcy court's decision not to enforce the forum selection clause, the district court cited this Court's decision in Zimmerman v. Continental Airlines, Inc., 712 F.2d 55 (3d Cir.1983), cert. denied, 464 U.S. 1038, 104 S.Ct. 699, 79 L.Ed.2d 165 (1984), for the proposition that "[t]he standard of review on appeal is whether the bankruptcy court abused its discretion in denying Nanco's motion to dismiss." App. at A62. Applying that standard, the district court concluded that no abuse had occurred and, accordingly, that it would not "second-guess" the bankruptcy court's decision. Id. at A63. Nanco argues that application of an abuse of discretion standard was error. We agree.
25
Under Coastal Steel, absent applicable state law, bankruptcy courts must apply The Bremen test to determine whether a forum selection clause should be enforced. In turn, absent a strong showing by the party opposing enforcement that the conditions under The Bremen have been met, the bankruptcy court must enforce the forum selection clause. Diaz argues, however, that this Court's subsequent decision in Zimmerman, in effect, undercut the prior pronouncement in Coastal Steel by affording bankruptcy courts considerable discretion in determining whether to enforce a forum selection clause. Diaz emphasizes our statement in Zimmerman that "[t]he economic fragility of the bankrupt's estate, the excess of creditors' demands over the debtors' assets, and the goal of rehabilitating the debtor all argue for expeditious resolution of the bankruptcy proceeding," 712 F.2d at 58, and concludes that "[u]nder Zimmerman, the decision to enforce a forum selection clause is left within the sound discretion of the Bankruptcy Court ... [and] will only be reversed upon a finding that the Court abused its discretion." Brief for the Appellee at 7. Diaz miscontrues our holding.
26
In Zimmerman, this Court addressed the issue whether the bankruptcy court is exempt from the commands of the United States Arbitration Act, 9 U.S.C. Secs. 1-208 (1982). Specifically, we considered whether Sec. 3 of that Act, which provides for a mandatory stay of all court proceedings pending the completion of arbitration, was binding on the bankruptcy court. We concluded that, notwithstanding the strong federal policy favoring arbitration, the policies underlying the Bankruptcy Reform Act of 1978, Act of Nov. 6, 1978, Pub.L. No. 95-598, 92 Stat. 2549, viz., to avoid unnecessary delays and duplication of effort, outweigh those policies underlying the mandatory stay provisions of Sec. 3. Consequently, we held that "the granting of a stay pending arbitration, even when the arbitration clause is contractual, is a matter left to the sound discretion of the bankruptcy judge." 712 F.2d at 56.
27
Diaz cites this Court's recognition in Coastal Steel of the analytical similarity between motions to enforce forum selection clauses and motions to stay proceedings pending arbitration, see 709 F.2d at 194, as indicative of the applicability of Zimmerman to this appeal. Notwithstanding that recognition--which by its own terms was limited to the issue of jurisdiction, see id.,--two principal factors distinguish our decision in Zimmerman and militate against its extension to the instant appeal. First, the uniqueness of arbitration as an alternative method of dispute resolution14 is such that the enforceability of arbitration clauses, though generally favored, is not governed by the same standard federal courts generally apply (absent applicable state law) to contractual forum selection clauses, namely, The Bremen test. Under that test, as discussed supra, enforcement is mandated absent a strong showing of unreasonableness and injustice. Conversely, federal courts apply a more exacting standard in determining whether to remit the parties' cause to arbitration. A host of factors may inform that determination. For instance, a court may consider whether in fact an arbitrable issue exists; whether that issue arises out of a collective bargaining agreement, a federal statute, or some other source; whether, if the issue is a federal statutory claim, Congress has foreclosed arbitration of that claim. See, e.g., Jacobson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 797 F.2d 1197 (3d Cir.1986) petition for cert. filed, 55 U.S.L.W. 3259 (U.S. Sept. 25, 1986) (No. 86487). Thus, in determining in Zimmerman whether the congressional desire for expedited disposition of bankruptcy proceedings outweighed the congressional policy favoring enforcement of arbitration clauses, we were faced with very different policy concerns arising from the nature of the competing forums. Here, however, where both competing forums are judicial, the concern cited in Zimmerman, 712 F.2d at 58-59, over the relative delay, expense and duplication of effort involved in the respective forums is not implicated.15
28
Second, and more important, the policy concerns that animated this court in Zimmerman were embodied in two congressional acts. Underlying our decision in that case, then, was the accommodation of two competing federal statutes. See Zimmerman, 712 F.2d at 56 ("This appeal requires us to reconcile two contradictory federal policies.") There is no similar conflict in the instant appeal. Rather, we are urged to hold that the Bankruptcy Act itself favors discretionary enforcement of forum selection clauses in bankruptcy proceedings. We believe, however, and hereby hold that our decision in Zimmerman is best limited to those cases where the identical policy concerns are at issue, namely, arbitration cases. Thus, contrary to Diaz's assertion, Zimmerman does not announce a new standard governing the enforceability of forum selection clauses in bankruptcy courts. Nor does it represent an internal construction of the Bankruptcy Act. Rather, Zimmerman holds that where the policies underlying the Bankruptcy Act and the United States Arbitration Act conflict, the decision whether to stay a bankruptcy proceeding pending resolution of a contractually agreed-upon arbitration is left to the sound discretion of the bankruptcy judge. See 712 F.2d at 60.
29
In sum, Zimmerman does not affect the law, as articulated in Coastal Steel, concerning the enforceability of forum selection clauses in bankruptcy proceedings. Instead, as this Court specifically held in Martin Marietta,
30
[t]he court's determination of the circumstances underlying its conclusion [whether to enforce a forum selection clause] are basic or inferred facts entitled to the presumption of correctness under the clearly erroneous standard of review. The court's decision that these circumstances warrant refusing enforcement of the forum selection clause, [however,] is a legal conclusion or ultimate fact subject to plenary review.
31
783 F.2d at 359 (emphasis added). Accordingly, the district court erred in its reliance on Zimmerman in reviewing the order of the bankruptcy court denying Nanco's motion to dismiss.
CONCLUSION
32
For the foregoing reasons we will reverse the judgment of the district court and direct that the bankruptcy court dismiss Diaz's adversary proceeding with leave to commence a new action in the courts of the State of New York.
*
Honorable Edward Dumbauld, United States District Judge for the Western District of Pennsylvania, sitting by designation
1
The underlying basis of Diaz's claim arose from a public works improvement contract entered into by Nanco, as general contractor, and the New York City Department of Transportation, as owner, for yard construction and track work at the Brooklyn Waterfront Rail Preservation Yard. Pursuant to a written Subcontract Agreement between Nanco and Diaz, Diaz agreed to furnish certain specified work at the project site for a total of $1.29 million
In its complaint in the adversary proceeding, Diaz maintained that Nanco breached the subcontract by failing to make certain progress payments required thereunder. The merits of Diaz's claim against Nanco, however, are not germane to the instant appeal, which concerns the non-enforcement of the forum selection clause contained in the Subcontract Agreement.
2
Although the bankruptcy judge acknowledged that New York law "appears to be the governing law of the contract," App. at A38, and announced her intention to apply it, there is no indication on the record that the substance or applicability of New York law concerning forum selection was explored. As indicated infra, however, New York law on forum selection is identical to the federal common law announced in The Bremen
3
Coastal Steel involved a challenge by a debtor, the third-party beneficiary of the enforcement of a forum selection clause in a contract between two defendants. This Court held that in the absence of a legally sufficient showing regarding the unreasonableness of enforcement, the forum selection clause would be enforced against the debtor who should have foreseen becoming a third-party beneficiary to the main contract
4
The Eleventh Circuit recently held that venue in cases predicated on diversity jurisdiction is a matter of federal procedural law, and thus contractual forum selection clauses are enforceable in diversity actions regardless of whether the law of the forum state deems such clauses as contrary to public policy. Stewart Org., Inc. v. Ricoh Corp., 810 F.2d 1066 (11th Cir.1987) (per curiam) (en banc)
5
This result is not altered by the application of New Jersey law, the only other state whose law could arguably apply, because it also follows The Bremen. See Coastal Steel, 709 F.2d at 202 (citing New Jersey precedent)
6
The Court also noted that favoring the enforceability of forum selection clauses "reflects an appreciation of the expanding horizons of American contractors who seek business in all parts of the world." 407 U.S. at 11, 92 S.Ct. at 1914. The international considerations of the Court's decision, of course, are not relevant to the interstate contract between Diaz and Nanco
7
The bankruptcy judge properly identified the applicable standard as follows:
forum selection clauses are presumptively valid and will be enforced unless a party objects and can establish either that the clause was the result of fraud or overreaching or would violate a strong public policy of the forum, or in a particular circumstance of a particular case would seriously inconvenience the objector or the debtor so as to be unreasonable.
App. at A37.
8
The district court reviewed the bankruptcy court's enforceability determination for an abuse of discretion. The application of that standard, however, as opposed to a plenary standard of review, is independently challenged by Nanco and will be discussed infra
9
As to the first prong of The Bremen test, the bankruptcy court specifically noted that there was no allegation or evidence of fraud or overreaching. See App. at A38. Nor does Diaz assert on appeal that the forum selection clause was included as a result of fraud or misrepresentation. As to the second prong, regarding public policy of the forum, neither the bankruptcy nor the district court considered whether the Bankruptcy Code reflects a public policy against enforcement of forum selection clauses under the circumstances of this case
Coastal Steel rejected the notion that the policy of the bankruptcy court of facilitating the collection and distribution of debtor estates in itself exempts that court from the public policy favoring the enforceability of forum selection clauses. See 709 F.2d at 202. Instead, we observed that "[a]t best the grant to protective federal jurisdiction over proceedings related to title 11 is one circumstance to be taken into account in making the unreasonableness determination." Id. Diaz, however, has asserted that the adversary proceeding that is the subject of this opinion is a "core" bankruptcy proceeding and that Congress could not have intended to permit contractual forum selection clauses to override the policy of the Bankruptcy Code to concentrate core bankruptcy proceedings in the bankruptcy court in order to effectuate the Congressional purpose of speedy rehabilitation of the debtor. This argument is not foreclosed by our decision in Coastal Steel. In view of the fact, however, that the controversy at issue here is plainly a "non-core" bankruptcy proceeding, one that could have as easily been instituted in a state court as well as a district court, see In Re: Colorado Energy Supply, 728 F.2d 1283, 1286 (10th Cir.1984), we need not address this question.
10
Diaz is represented by the law firm of McCarter & English, which maintains offices in Newark, New Jersey and New York City
11
Specifically, Diaz maintains "that such testimony was rendered unnecessary by [Nanco's] own concessions." Brief for the Appellee at 2. We need not determine here the extent of evidence required to sustain an allegation of unreasonableness. We are satisfied, however, that Diaz's bald assertions do not establish the manifest and grave inconvenience contemplated by The Bremen and its progeny
12
Nanco argued before both this Court and the courts below (1) that "since New York and New Jersey are contiguous states, the burden Diaz would face by having to litigate in New York is no greater than the burden it undertook when it initially agreed to perform the underlying subcontract ... in ... New York;" (2) that the distance between the adversary proceedings forum and the contractual forum is no less than one hundred miles; (3) that Diaz's current counsel operate their main offices in Newark, New Jersey, which is significantly closer to New York City--the contractual forum--than it is to Camden, New Jersey--the site of the instant adversary proceedings; (4) that Diaz's current counsel maintain offices in New York City; and, finally, (5) that approximately one-third of the firm's lawyers are admitted to practice in New York. See Brief for the Appellant at 20-21. Of course, the burden set forth in The Bremen is not on Nanco to disprove Diaz's alleged inconvenience, although these undisputed facts would seem to satisfy such a burden if it existed. Rather, the "heavy burden of showing not only that the balance of convenience is strongly in favor of trial in [the current forum] ..., but also that a [New York] trial will be so manifestly and gravely inconvenient ... that [Diaz] will be effectively deprived of a meaningful day in court," The Bremen, 407 U.S. at 19, 92 S.Ct. at 1918 (emphasis added), rests squarely with Diaz
13
But see, supra note 12
14
"An agreement to arbitrate before a specific tribunal is, in effect, a specialized kind of forum selection clause that posits not only the situs of suit but also the procedure to be used in resolving the dispute." Scherk v. Alberto-Culver Co., 417 U.S. 506, 519, 94 S.Ct. 2449, 2457, 41 L.Ed.2d 270 (1974)
15
We note that even if the policy concerns considered in Zimmerman were controlling here, since we have determined that Diaz's adversary proceeding is a "non-core" proceeding, see supra note 9, the identical result would obtain. As indicated by Nanco, "the fact that this is a 'non-core' proceeding means that trial of the adversary proceeding by the bankruptcy court will only result in delays and duplications of efforts, since either party may demand a de novo review in the district court." Letter of Michael A. Mulqueen at 4 (Dec. 18, 1986); see also 28 U.S.C. Sec. 157(c)(1) (1982) ("any final order or judgment [in a non-core bankruptcy proceeding] shall be entered by the district judge after considering the bankruptcy judge's proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected")
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184 S.W.3d 521 (2005)
Sharon Jo Ann HARRISON Appellant,
v.
George R. VALENTINI, M.D. Appellee.
No. 2004-SC-000015-DG.
Supreme Court of Kentucky.
December 22, 2005.
As Modified on Denial of Rehearing March 23, 2006.
*522 Freeda M. Clark, Louisville, KY, Counsel for Appellant.
Craig L. Johnson, Whonsetler & Johnson, PLLC, Louisville, KY, Counsel for Appellee.
LAMBERT, Chief Justice.
This case arises from medical complications ensuing from breast lift surgery. The Appellant, Sharon Jo Ann Harrison filed a medical negligence claim against Dr. George Valentini who performed the lift surgery and administered follow-up care. The trial court dismissed the action *523 as time-barred and the Court of Appeals affirmed. We granted discretionary review to consider whether the continuing treatment Appellant received from Appellee tolled the applicable statute of limitations, rendering her claim timely. Our close examination of the doctrine and its rationale convinces us to answer in the affirmative.[1] We therefore reverse and remand the case to the trial court for further proceedings.
Ms. Harrison, who had previously received breast implants, underwent breast lift surgery on October 2, 1997. She began experiencing complications within a couple of weeks. Specifically, she experienced drainage from her breasts and skin deterioration, ultimately resulting in the loss of her left nipple and numbness in her right nipple. Dr. Valentini made several subsequent unsuccessful attempts to replace her nipple and to correct additional disfigurement resulting from the 1997 surgery. Appellant remained in Dr. Valentini's care for nearly three years. During this time she had initial consultations with three other doctors to explore additional treatment options, but each told her to give the healing process more time or suggested that she remain in Dr. Valentini's care. She continued primary treatment with Dr. Valentini until April 11, 2000.
On November 16, 2000, more than three years after the 1997 surgery, but within one year of Harrison's last appointment with Dr. Valentini, suit was filed. After preliminary discovery, Dr. Valentini moved for summary judgment on two grounds: 1) that Ms. Harrison's action should be barred by the applicable statute of limitations and 2) that Ms. Harrison failed to offer adequate expert testimony that Dr. Valentini's treatment deviated from the requisite standard of care. The trial court granted summary judgment in Dr. Valentini's favor, holding that Ms. Harrison's cause of action was barred by the statute of limitations. The Court of Appeals affirmed. Neither court reached the issue of the sufficiency of the expert testimony on the standard of care issue.
On her appeal to this Court, Ms. Harrison contends that the statute of limitations should have been tolled because Dr. Valentini obstructed her from filing suit, and/or that this Court should recognize the continuous course of treatment rule. As there is little evidence of obstruction, we need not address the issue. Rather, the fact of Appellant's continuing treatment by Dr. Valentini will be our decisional basis.
Generally, a medical negligence lawsuit must be brought within one year of the date the cause of action accrues or is discovered.[2] This rule, which is codified in KRS 413.140(2), establishes the time that the action accrues if an injury is not immediately discoverable.[3] It establishes the date of accrual as the date that the injury is or, with reasonable care, should have been discovered.[4]
Applying the rule in medical malpractice cases can be confusing because *524 "injury" is a term of art in the law.[5] Undesirable results of medical treatment do not constitute compensable injury.[6] Rather, such injury is defined as "the invasion of any legally protected interest of another."[7] Thus, "[legal] injury in the medical malpractice context refers to the actual wrongdoing, or the malpractice itself."[8]
Accordingly, under the discovery rule, actual or constructive knowledge of the medical negligence triggers the commencement of the statute of limitations.[9] This is problematic because often the patient cannot know whether the undesirable outcome is simply an unfortunate result of proficient medical care or whether it is the consequence of substandard treatment. Thus, a patient is left to speculate about the cause of the problem.
Moreover, neither the discovery rule nor KRS 413.190 affords the physician and patient an opportunity to significantly cooperate with each other to improve the initial results or mitigate the damages caused by the poor treatment. Rather the patient is required to file suit immediately to avoid the risk of his suit being time-barred.[10] Such a requirement operates to undermine rather than bolster the relationship of trust and confidence that a patient should be able to have with his or her physician.[11]
Ms. Harrison suggests that the continuous course of treatment doctrine can eliminate these concerns. Under this doctrine, the statute of limitations is tolled as long as the patient is under the continuing care of the physician for the injury caused by the negligent act or omission.[12]
This court has previously held that the continuous representation rule in legal malpractice cases coalesces with the legislative intent inherent in the enactment of the discovery rule. In Alagia, Day, Trautwein & Smith v. Broadbent,[13] this Court elaborated on the underlying principles for the continuous representation rule:
[W]e believe it [the continuous representation rule] reflects the intent of the general assembly with its enactment of the discovery rule. Moreover, we perceive a practical advantage in the continuous representation rule. In a proper case, a negligent attorney may be able to correct or mitigate the harm if there is time and opportunity and if the parties choose such a course. Without it, the client has no alternative but to terminate the relationship, perhaps prematurely, and institute litigation.
These sound principles are equally persuasive in the context of medical malpractice.
The rationale for the continuous treatment exception rests on a number of doctrinal assumptions. Thus it is posited that the trust and confidence that marks the physician-patient relationship puts the patient at a disadvantage to question the doctor's techniques, and gives the patient the right to rely upon the doctor's professional skill without the necessity of interrupting a continuing course of treatment by instituting suit. This exception not only provides the patient with the opportunity to seek *525 corrective treatment from the doctor, but also gives the physician a reasonable chance to identify and correct errors made at an earlier stage of treatment.[14]
Though this Court has never squarely addressed the continuous course of treatment doctrine, we have implicitly expressed our approval of the doctrine's rationale through discourse concerning the discovery rule in the medical malpractice arena. Specifically, in Wiseman v. Alliant Hospitals, Inc.,[15] we stated:
One who possesses no medical knowledge should not be held responsible for discovering an injury based on the wrongful act of a physician. The nature of the tort and the character of the injury usually require reliance on what the patient is told by the physician or surgeon. The fiduciary relationship between the parties grants a patient the right to rely on the physician's knowledge and skill.
It is entirely logical that the patient's right of reliance extends throughout his treatment with the physician. While treatment continues, the patient's ability to make an informed judgment as to negligent treatment is impaired. Under such circumstances, it can scarcely be said that discovery has occurred. Accordingly, a continuing course of treatment has the effect of preventing discovery of a character necessary to commence the running of the statute of limitations.[16]
This rule should be limited, however, by a requirement of patient good faith. Inherent in the doctrine is the expectation that the patient and physician harbor a genuine desire to improve the patient's condition. No benefits will inure to a patient who feigns a desire to continue treatment for the purpose of obtaining more time to "shop around" for another physician to corroborate the malpractice or for a lawyer to file suit. Claims of patient bad faith shall be heard and determined by the trial court and subject to appellate review for abuse of discretion. However, where a patient relies, in good faith, on his physician's advice and treatment or, knowing that the physician has rendered poor treatment, but continues treatment in an effort to allow the physician to correct any consequences of the poor treatment, the continuous course of treatment doctrine operates to toll the statute of limitations until the treatment terminates at which time running of the statute begins.
Applying the foregoing rule in the instant case, we hold that Ms. Harrison's suit against Dr. Valentini was timely filed. She filed suit on November 16, 2000, well within one year of her discontinuance of treatment with Dr. Valentini.
As the trial court and Court of Appeals did not address whether an issue of fact was presented by the testimony of Ms. Harrison's expert witness, we will not review that issue here. Rather, the case will be remanded to the trial court for further consistent proceedings.
JOHNSTONE, SCOTT, and WINTERSHEIMER, JJ., concur.
ROACH, J., dissents by separate opinion in which COOPER and GRAVES, JJ., join.
ROACH, Justice, dissenting.
The majority opinion advances persuasive policy arguments for the adoption of *526 the continuous course of treatment doctrine. If I were serving as a legislator and these arguments were made on the floor of the General Assembly, I would probably support the adoption of the continuous course of treatment doctrine. However, we do not sit as legislators, and, therefore, I must dissent.
Our predecessor court made clear that "[t]he legislature's power to enact statutes of limitation governing the time in which a cause of action must be asserted by suit is, of course, unquestioned." Saylor v. Hall, 497 S.W.2d 218, 224 (Ky.1973) (emphasis added); see also Gilbert v. Barkes, 987 S.W.2d 772, 776 (Ky.1999) (citing to Saylor and stating that "[i]t is well established that the legislature has the power to limit the time in which a common law action can be brought"). In medical malpractice cases, the General Assembly has unequivocally answered this policy question. KRS 413.140(1)(e) states that a negligence action against a physician "shall be commenced within one (1) year after the cause of action accrued." KRS 413.140(2) then states that for actions subject to KRS 413.140(1)(e), "the cause of action shall be deemed to accrue at the time the injury is first discovered or in the exercise of reasonable care should have been discovered."
By requiring that actions be brought within one year of the time the "injury is first discovered or in the exercise of reasonable care should have been discovered," the General Assembly has adopted the discovery rule for tolling the medical malpractice statute of limitation. And, quite simply, the phrases "injury is first discovered" and "should have been discovered" means precisely what they say: that the statute of limitation begins to run when the injury is first discovered or should have been discovered. Discovery occurs when a patient knows that he or she has been wronged and by whom the wrong has been committed. Wiseman v. Alliant Hospitals, Inc., 37 S.W.3d 709, 712 (Ky. 2000).
The evidence clearly established that Ms. Harrison had discovered or at least should have discovered her injury by 1998. Her post-operative difficulties from her 1997 surgery were easily observable. As the Court of Appeals noted, the 1997 surgery resulted in "[d]isfiguring complications..., including nipple loss." As a result, she sought "second opinions" from a second doctor, then a third doctor, and then a fourth doctor. She was concerned enough that in 1998 she even consulted with an attorney (on whose advice she consulted the third doctor). There is simply no way that Ms. Harrison had no knowledge of her injury. Thus, her suit against Dr. Valentini in November 2000 was clearly time-barred under KRS 413.140.
The majority, however, has, through pure judicial fiat, supplanted the statutorily prescribed discovery rule with the continuous course of treatment rule. The majority opinion admits that "neither the discovery rule nor KRS 413.140 affords the physician and patient an opportunity to significantly cooperate with each other to improve the initial results or mitigate the damages caused by the poor treatment." Ante at 524.[1] This is, in effect, an admission that the continuous course of treatment rule is different than the discovery *527 rule that is clearly set forth in KRS 413.140. This is where the inquiry as to what rule to apply should end. However, the majority has succumbed to the siren's call to make "good" policy and, preferring a rule that facilitates physician-patient cooperation, chooses to ignore both the clear language of the statute and our settled precedent concerning statutes of limitation. The result of this reasoning is the blanket application of a new bright-line rule that has not been enacted by the General Assembly. I am awestruck by the Court's willingness to make such a raw policymaking pronouncement, especially in the face of decades of controlling precedent and, more importantly, statutory enactment.
In an attempt to find any legal authority in Kentucky for its enactment of this new policy, the majority relies upon Alagia, Day, Trautwein & Smith v. Broadbent, 882 S.W.2d 121 (Ky.1994). Although the Court discussed the legal malpractice analog of the continuous course of treatment rule, namely the continuous representation rule, in Alagia, Day, it did so only in dicta. Ultimately, the Court did not adopt the continuous representation rule, noting that the rule "is not controlling here" and that the case "must be decided on the occurrence rule." Id. at 125.[2]
The majority also claims support for adoption of the rule in the following language from Wiseman v. Alliant Hospitals, Inc., 37 S.W.3d 709 (Ky.2000):
One who possesses no medical knowledge should not be held responsible for discovering an injury based on the wrongful act of a physician. The nature of the tort and the character of the injury usually require reliance on what the patient is told by the physician or surgeon. The fiduciary relationship between the parties grants a patient the right to rely on the physician's knowledge and skill.
Id. at 712-13. What this language means, however, is that the continuous course of treatment doctrine (as opposed to "rule") might, at most, be a useful tool for tolling a statute of limitation based on the discovery rulein an appropriate case. This is why the dicta in Alagia, Day noted that "the continuous representation rule is a branch of the discovery rule," rather than a replacement. 882 S.W.2d at 125. As a court of law, however, we simply are not at liberty to adopt a wholly new rule to replace the one that the General Assembly has enacted. Furthermore, it is unnecessary in this case to consider the application of the continuous course of treatment doctrine as a tolling method given that Ms. Harrison's injury was so very obvious. Yet, this is exactly what the majority has done.
The General Assembly has determined that a medical negligence claim must be brought within one year after the "injury is first discovered" and since the judiciary has no power to re-write the statute to *528 conform to our own notions of right and wrong, I respectfully dissent.
COOPER and GRAVES, JJ., join this dissenting opinion.
NOTES
[1] See, e.g., Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (Ark.1988); Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777 (1962); Horton v. Carolina Medicorp, Inc., 344 N.C. 133, 472 S.E.2d 778 (1996); Ishler v. Miller, 56 Ohio St.2d 447, 384 N.E.2d 296 (Oh.1978); Hotelling v. Walther, 169 Or. 559, 130 P.2d 944 (1942); Farley v. Goode, 219 Va. 969, 252 S.E.2d 594 (1979); Metzger v. Kalke, 709 P.2d 414 (Wyo. 1985).
[2] KRS 413.140(1)(e).
[3] Wiseman v. Alliant Hospitals, Inc., 37 S.W.3d 709 (Ky.2000).
[4] Hackworth v. Hart, 474 S.W.2d 377 (Ky. 1971).
[5] Wiseman, 37 S.W.3d 709.
[6] Id.
[7] Id. at 712.
[8] Id. at 712.
[9] Id.
[10] Watkins v. Fromm, 108 A.D.2d 233, 488 N.Y.S.2d 768 (1985).
[11] See Ison, 249 S.W.2d 791.
[12] Langner v. Simpson, 533 N.W.2d 511 (Iowa 1995).
[13] 882 S.W.2d 121 (Ky.1994).
[14] Watkins v. Fromm, 108 A.D.2d 233, 488 N.Y.S.2d 768, 772 (1985).
[15] 37 S.W.3d 709, 712-13 (Ky.2000) (quoting Black v. Littlejohn, 312 N.C. 626, 325 S.E.2d 469 (1985)).
[16] Watkins, 108 A.D.2d 233, 488 N.Y.S.2d 768.
[1] The majority also describes the requirements of the discovery rule as "problematic." Ante at 524. While noting the various deficiencies in the discovery rule may very well be a good policy argument against the discovery rule, the simple fact is that the discovery rule is what the General Assembly has chosen to enact.
[2] The "occurrence" rule is unique to the legal malpractice statute of limitation and is not a part of the medical malpractice statute of limitation, which uses only the discovery rule. Compare KRS 413.245 (legal malpractice statute of limitation), with KRS 413.140(1)(e) & (2) (medical malpractice statute of limitation). The occurrence rule basically establishes a second limitation period, separate and in addition to that stemming from the discovery rule, for legal malpractice cases. See Alagia, Day, 882 S.W.2d at 125 "[T]here are actually two periods of limitation, the first being one year from the date of the occurrence and the second being one year from the date of discovery if it is later in time." (citing Michels v. Sklavos, 869 S.W.2d 728 (1994)).
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T.C. Memo. 2001-137
UNITED STATES TAX COURT
DAVID FURNISS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 13860-99. Filed June 11, 2001.
David Furniss, pro se.
William F. Castor, for respondent.
MEMORANDUM OPINION
MARVEL, Judge: In separate notices of deficiency,
respondent determined the following income tax deficiencies and
penalties with respect to petitioner’s Federal income taxes:1
1
All section references are to the Internal Revenue Code in
effect for the years in issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure. Monetary amounts are
rounded to the nearest dollar.
- 2 -
Addition to tax Addition to tax
Taxable Year Deficiency Sec. 6651(a)(1) Sec. 6654
1990 $5,917 $1,479 $387
1994 4,425 939 191
1996 4,093 1,023 218
After concessions,2 the only remaining issues for decision
are:3 (1) Whether petitioner received unreported income during
1990, 1994, and 1996 of $25,838, $30,243, and $29,812,
respectively; (2) whether petitioner is liable for additions to
tax for failure to file Federal income tax returns for 1990,
1994, and 1996; and (3) whether petitioner is liable for
additions to tax for failure to make sufficient estimated tax
payments in 1990, 1994, and 1996.
Some of the facts have been stipulated, and the stipulations
are incorporated herein by this reference. Petitioner resided in
Lawton, Oklahoma, at the time the petition was filed.
During 1990, petitioner received commissions of $17,516, a
pension of $3,433, unemployment compensation of $4,065, dividends
of $20, and wages of $804. During 1994, petitioner received
unemployment compensation of $2,450, dividends of $46, and wages
of $27,747. During 1996, petitioner received a pension of
2
Petitioner did not dispute, nor did he present evidence
regarding, respondent’s determination that petitioner had self-
employment income in 1990 of $17,516 and was liable for self-
employment tax on that income. This adjustment is deemed
conceded in accordance with Rule 34(b)(4).
3
The only other issues raised in the notices of deficiency
are computational.
- 3 -
$5,920, unemployment compensation of $3,705, interest of $20,
dividends of $36, and wages of $20,131. Petitioner did not file
income tax returns for 1990, 1994, or 1996.
I. Unreported Income
Respondent determined that all of petitioner’s receipts
during the years in issue were income to petitioner. Petitioner
does not dispute that he received the income; rather, he contends
there is insufficient authority to hold him liable for an income
tax.
The crux of petitioner’s argument is found in his trial
memorandum and supplement to trial memorandum.4 These trial
memoranda are merely lists of disjointed brief quotations and
erroneous statements of law. Giving petitioner the benefit of
the doubt, we construe petitioner’s argument to be that the
income tax is unconstitutional and, alternatively, that the
definition of income excludes his receipts. We reject
4
The Court directed the parties to file simultaneous briefs,
together with simultaneous reply briefs. Petitioner did not file
a brief. We could declare petitioner in default and dismiss his
case. See Rule 123; Stringer v. Commissioner, 84 T.C. 693
(1985), affd. without published opinion 789 F.2d 917 (4th Cir.
1986); Pace v. Commissioner, T.C. Memo. 2000-300. We also could
conclude that petitioner abandoned his claims after trial and
decide this case against petitioner because he failed to meet his
burden of proof. See Calcutt v. Commissioner, 84 T.C. 716, 721-
722 (1985); Hartman v. Commissioner, T.C. Memo. 1999-176. We
choose, instead, to decide the case on the merits in the hope
that this opinion will guide petitioner’s future decisions
regarding his tax obligations. See Calcutt v. Commissioner,
supra at 721-722; Pace v. Commissioner, supra; Bissell v.
Commissioner, T.C. Memo. 1991-163.
- 4 -
petitioner’s argument for well-established reasons. First, the
income tax repeatedly has been held constitutional. See Charczuk
v. Commissioner, 771 F.2d 471, 472-473 (10th Cir. 1985), affg.
T.C. Memo. 1983-433; Abrams v. Commissioner, 82 T.C. 403, 406-407
(1984); Bivolcic v. Commissioner, T.C. Memo. 2000-62; see also
Stelly v. Commissioner, 761 F.2d 1113, 1115 (5th Cir. 1985)
(listing cases in each circuit holding the income tax
constitutional). Second, section 61(a) defines gross income
generally as “all income from whatever source derived,”
including, but not limited to, compensation for services,
commissions, interest, dividends, and pensions. See sec.
61(a)(1), (4), (7), (11). Section 85(a) provides: “In the case
of an individual, gross income includes unemployment
compensation.” Under section 61(a)(1), (4), (7), and (11), and
section 85(a), petitioner clearly is required to include in gross
income all his receipts in the years in issue.
Petitioner contends that income is defined only by section
911 and the regulations under section 861 and that his receipts
are excluded from those definitions. Neither section 911 nor
section 861 operates to prevent section 61 from applying to
petitioner’s receipts. See Solomon v. Commissioner, T.C. Memo.
1993-509, affd. without published opinion 42 F.3d 1391 (7th Cir.
1994).
- 5 -
Petitioner’s reliance on section 911 is misplaced. Section
911(a) allows an exclusion from gross income for foreign earned
income at the election of a qualified individual, defined as an
individual whose tax home is in a foreign country. See sec.
911(d)(1). Petitioner had no foreign earned income and is not a
qualified individual for purposes of section 911(a). Section
911(a) has no bearing on the taxation of petitioner’s receipts.
Petitioner’s reliance on section 861 likewise is misplaced.
Petitioner reads section 861 to provide that items not defined
therein are not subject to tax. Section 861(a)(1) and (3)
provides that interest from the United States and compensation
for labor or personal services performed in the United States
(with exceptions not applicable here) are items of gross income
which shall be treated as income from sources within the United
States. Nothing in section 861 operates to exclude from income
any of petitioner’s receipts.
We hold that petitioner received unreported income of
$25,838, $30,243, and $29,812 during 1990, 1994, and 1996,
respectively.
II. Schedules A and C Deductions
Petitioner asserted that he was entitled to Schedule A,
Itemized Deductions, and Schedule C, Profit or Loss From
- 6 -
Business, deductions for the years in issue.5 Petitioner has the
burden of proof on this issue. See Rule 142(a). We allowed
petitioner ample time to present evidence establishing these
deductions. Petitioner failed to introduce any such evidence or
even indicate the specific deductions to which he believed he was
entitled. We hold that petitioner failed to carry his burden of
proof. See INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84
(1992); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440
(1934); Wichita Terminal Elevator Co. v. Commissioner, 6 T.C.
1158, 1165 (1946), affd. 162 F.2d 513 (10th Cir. 1947).
Petitioner is not entitled to any Schedules A or C deductions for
the years in issue.
III. Section 6651(a)(1) Addition to Tax
Section 6651(a)(1) authorizes the imposition of an addition
to tax for failure to file a timely return, unless it is shown
that such failure is due to reasonable cause and not due to
willful neglect. See sec. 6651(a)(1); United States v. Boyle,
469 U.S. 241, 245 (1985); United States v. Nordbrock, 38 F.3d
440, 444 (9th Cir. 1994); Harris v. Commissioner, T.C. Memo.
1998-332.
5
Petitioner also asserted he was entitled to Schedule B,
Interest and Ordinary Dividends, deductions for the years at
issue. Schedule B is a form used to report the taxpayer’s
receipt of interest and ordinary dividends. There are no
Schedule B deductions; therefore, petitioner is not entitled to
any such deduction.
- 7 -
Petitioner did not file Federal income tax returns or
applications for extensions of time to file for 1990, 1994, or
1996. Petitioner stated in his petition that he was not liable
for penalties as determined by respondent. The record is devoid
of any evidence establishing a reasonable cause for his failure
to file a return; thus, we hold petitioner is liable for the
section 6651(a)(1) addition to tax.
IV. Section 6654(a) Addition to Tax
Section 6654(a) imposes an addition to tax in the case of
any underpayment of estimated tax by an individual. Unless a
statutory exception applies, the addition to tax under section
6654(a) is mandatory. See sec. 6654(a), (e); Recklitis v.
Commissioner, 91 T.C. 874, 913 (1988); Grosshandler v.
Commissioner, 75 T.C. 1, 20-21 (1980); Estate of Ruben v.
Commissioner, 33 T.C. 1071, 1072 (1960) (“This section has no
provision relating to reasonable cause and lack of willful
neglect. It is mandatory and extenuating circumstances are
irrelevant.”). None of the statutory exceptions under section
6654(e) applies in this case. Petitioner stated in his petition
that he was not liable for penalties as determined by respondent,
but presented no further argument regarding payments of estimated
tax. We thus hold petitioner liable for the section 6654(a)
addition to tax.
- 8 -
V. Conclusion
We have carefully considered all remaining arguments made by
petitioner for contrary holdings and, to the extent not
discussed, find them to be irrelevant or without merit.
To reflect the foregoing,
Decision will be entered
for respondent.
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246 S.E.2d 907 (1978)
James MANDOLIDIS et al.
v.
ELKINS INDUSTRIES, INC.
Carl Ray SNODGRASS
v.
UNITED STATES STEEL CORP.
Mary Kay DISHMON, Admx.
v.
EASTERN ASSOCIATED COAL CORP.
Nos. 13926, 13982 and 13983.
Supreme Court of Appeals of West Virginia.
Decided June 27, 1978.
Dissenting Opinion July 11, 1978.
Concurring Opinion August 15, 1978.
*909 Cardot, Kent & Queen, James A. Kent, Jr., Elkins, Calwell, Steele, McCormick & Peyton, W. Stuart Calwell, Jr., Nitro, for appellants in No. 13926.
Brown, Harner & Busch, John F. Brown, Jr., Elkins, for appellee in No. 13926.
DiTrapano, Mitchell, Lawson & Field, John R. Mitchell, Charleston, for appellants in No. 13982.
Steptoe & Johnson, Edward W. Eardley, Charleston, for appellee Baker, in No. 13982.
Kay, Casto & Chaney, Don R. Sensabaugh, Jr., Charleston, for appellee P. A. Drill, in No. 13982.
Love, Wise, Robinson & Woodroe, Charles M. Love and David A. Faber, Charleston, for appellee U. S. Steel, in No. 13982.
Edward G. Atkins, Charleston, for appellant in No. 13983.
Shaffer, Theibert, Ikner & Schlaegel, H. G. Shaffer, Jr., Madison, for appellee in No. 13983.
Spilman, Thomas, Battle & Klostermeyer, Lee F. Feinberg and James H. Davis, III, Charleston, amicus curiae for WV Manufacturers Ass'n.
Jackson, Kelly, Holt & O'Farrell, John L. McClaugherty and Alvin L. Emch, Charleston, amicus curiae for WV Farm Bureau; WV Homebuilders Assoc.; WV Retailers Assoc.; WV Auto. Dealers Assoc.; WV Chamber of Commerce; WV Coal Assoc.; WV Surface Mining and Reclamation Assoc.; WV Oil and Natural Gas Assoc.; WV Motor Truck Assoc.; Contractors Assoc. of WV; and WV Restaurant and Licensed Beverage Assoc.
James B. McIntyre, McIntyre & Jordan, Charleston, amicus curiae for WV Labor Federation, AFL-CIO.
George G. Burnette, Jr., Charleston, amicus curiae for Dist. 17, United Mine Workers of America.
Ross Maruka, Fairmont, amicus curiae for Dist. 31, United Mine Workers of America.
Harrison Combs, Washington, D. C., James M. Haviland, Charleston, amicus curiae for International Union, United Mine Workers of America.
*908 McGRAW, Justice:
For purposes of decision, the Court has consolidated three cases here on writs of *910 error. Each case involves a tort action brought by employees or their heirs against employers subject to this state's Workmen's Compensation Act.
Each action arises from injuries or deaths suffered by employees during the course of and as a result of their employment. Notwithstanding the immunity from common law suit granted to employers by W.Va. Code § 23-2-6,[1] plaintiffs commenced their actions relying on the deliberate intent exception to such immunity contained in W.Va.Code § 23-4-2.[2]
I
The validity vel non of the trial courts' judgments, in the cases at bar, can only be ascertained by an examination and analysis of the substantive law as set forth in W.Va. Code § 23-4-2. That provision by its express language preserves for employees a common law action against employers "as if this chapter had not been enacted" "if injury or death result to any employee from the deliberate intention of the employer to produce such injury or death." In these appeals, this Court is asked to delineate the extent to which this statutory provision provides immunity to employers subject to the Act. The individual parties to these actions, as well as various employer and labor organizations filing amicus curiae briefs, urge us to employ familiar and competing rules of statutory construction to ascertain the intent of the Legislature in enacting this provision in 1913. What must be remembered is that canons of construction are but aids devised by courts to ascertain the true meaning, purpose and intent of the Legislature. What was the intention of the original section? The answer to this specific question can best be answered by recalling the purpose for the enactment of workmen's compensation legislation in the first instance.
The paramount reason for such legislation was, of course, that under the common law tort system workers injured in industrial accidents recovered compensatory damages in a rather small percentage of cases.[3]
The common law tort system with its defenses of contributory negligence, assumption *911 of risk and the fellow servant rule was considered inimical to the public welfare and was replaced by a new and revolutionary system wherein "fault" became immaterialessentially a no-fault system.
The Workmen's Compensation Act was designed to remove negligently caused industrial accidents from the common law tort system.[4] This quote from an earlier Workmen's Compensation decision provides additional historical perspective and insight as to the purpose of this law:
"The conditions giving rise to a law, the faults to be remedied, the aspirations evidently intended to be efficiently embodied in the enactment, and the effects and consequences as regards responding to the prevailing conceptions of the necessities of public welfare, play an important part in shaping the proper administration of the legislation. In the aggregate, they sometimes shed very efficient light in aid of clearing up obscurities as to the legislative intent ... The courts should fully appreciate that and be imbued with and guided by the manifest intent of the law to eradicate, utterly, the injustice to employers and employees, and the public as well, of the old system, and to substitute in its place an entirely new one based on the highest conception of man's humanity to man and obligation to industry upon which all depend; recognizing the aggregate of its attending accidents as an element of cost to be liquidated and balanced in money in the course of consumptiona system dealing with employees, employers, and the public as necessarily mutual participants in bearing the burdens of such accidents, displacing the one dealing only with the class of injuries happening through inadvertent failure, without real moral turpitude, to exercise average human care, and placing employee and employer, whose interests are economically the same, in the false position of adversaries, to the misfortune of both and the public, intensified by opportunity for those concerned as judicial assistants to profit by such misfortunes. Most lamentable it will be, if this new systemso freighted with hopes for the minimizing of human burdens and their equitable distributionshall not endure and be perfected to the best that human wisdom can attain." McVey v. Chesapeake & Potomac Telephone Co., 103 W.Va. 519, 522-3, 138 S.E. 97, 98 (1927) quoting Milwaukee v. Miller, 154 Wis. 652, 144 N.W. 188 (1913) (Emphasis supplied).
We now turn to an analysis of our case law construing this statute. In Collins v. Dravo Contracting Co., 114 W.Va. 229, 171 S.E. 757 (1933), the Court rejected the proposition that an employer could never "deliberately intend" to cause an injury or death by an act of omission,[5] and held that under *912 W.Va.Code § 23-4-2 a personal representative may prosecute a wrongful death action on behalf of a decedent employee's widow, widower, child or dependent, because such provision provides a right of action "as if this chapter [Workmen's Compensation Act] had not been enacted." Moreover, the Court held plaintiff's common law declaration sufficient "to require the defendant to go to trial upon the theory of deliberate intent to injure or kill." Id. at 236, 171 S.E. at 759.
Less than a year later this Court was asked again to rule on the legal sufficiency of a declaration in Maynard v. Island Creek Coal Co., 115 W.Va. 249, 175 S.E. 70 (1934), and in syllabus point 1 thereof it was held:
Allegations in a declaration of acts of gross negligence by the employer do not constitute deliberate intention within the meaning of the said statutory provision. To bring a case within said provision, at the very least, there must be alleged facts from which the natural and probable consequence reasonably to be anticipated would be death or serious injury to the employee affected thereby.
In addition, the Court stated that "[a] subscribing employer who has ... complied with the statute is absolutely exempted from liability to employees for injuries received by them in the course of and resulting employment, except, if such injuries be willfully inflicted by the employer ..." Id. at 252, 175 S.E. at 71. (emphasis supplied) And, more than that, the Court said "that the carelessness, indifference, and negligence of an employer may be so wanton as to warrant a judicial determination that his ulterior intent was to inflict injury." Id. at 253, 175 S.E. at 72.
It is clear from this language that the Maynard court did not, in construing the statute, conclude that a showing of specific intent to injure or kill was required to avoid the workmen's compensation immunity bar. The Court correctly rejected the idea that gross negligence was equivalent to "deliberate intent," and it is apparent that the Court did not believe the Legislature intended to shield an employer from common law liability where such employer knowingly and wantonly placed an employee in such a condition of peril that serious injury or death would in all probability occur to such employee. It is irrefutable that the Collins and Maynard courts construed the statute so as to allow a jury to consider the culpability of an employer's conduct where such employer subjected an employee to working conditions in which the natural and probable consequences to be anticipated would be death or serious injury. As Justice Wilson observed in his concurring opinion in Eisnaugle v. Booth, W.Va., 226 S.E.2d 259 (1976):[6]
When this language [W.Va. § 23-4-2] was first confronted by this Court, it seemed that it was viewed reasonably and was interpreted as to give an employee the benefit of a cause of action left open to him by the statute. Although the standards of pleading and proof were intended to be strict, there was no apparent effort to define "deliberate intention" in such terms as to impose what now amounts to a higher standard of pleading and proof than would be required in pleading and proving a charge of murder. Id. at 262.
Yet, just two years after Maynard, in Allen v. Raleigh-Wyoming Mining Co., 117 W.Va. 631; 186 S.E. 612 (1936), the Court read the same statutory provision so as to preclude any recovery by an employee under such provision unless there was a showing of "[a] specific deliberate intent on the part of the latter to produce the injury..." Sec also, Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739, 65 S.E.2d 87 (1951).
That opinion, however, is totally devoid of discussion concerning the legislative purposes underlying workmen's compensation legislation. The Court simply relied on judicial *913 decisions interpreting substantially identical provisions contained in the Washington and Oregon laws, and invoked the rule that in construing statutes adopted from another state, "the judicial interpretation already placed on that statute by the highest tribunal of such state will usually be adopted." Id. 117 W.Va. at 636, 186 S.E. at 614. An examination of those cases reveals that the definition of "deliberate intent," as used in their workmen's compensation laws, was arrived at by examining the definition given to such terminology in a murder statute. See, Jenkins v. Carman Manufacturing Co., 79 Or. 448, 155 P. 703 (1916), and the cases cited therein.
In Collins the Court was urged by the employer[7] to interpret the statute, based on the same Oregon and Washington cases relied on in Allen, to require a specific intent to injure or kill but, and we think correctly so, the Court declined to do so. We are of the opinion that reading the language of the provision under review here to mean the same thing as similar wording in a criminal statute defining murder is contrary to the basic rules governing the construction of workmen's compensation statutes. There is no adequate justification for adhering to the construction of a statute which is not only erroneous but which works an injustice on persons injured as a result of conduct which is so likely to produce injury or death that its performance, under all circumstances, could perhaps warrant criminal liability.[8] No person or organization of persons should be permitted to escape full responsibility for conduct which could be found to be criminal in nature. We do not, however, wish to and we do not intimate any view as to the nature of conduct involved in the three cases now here on review.
In light of the conditions giving rise to the passage of the Act, and in light of the purposes of the Act, we believe the Collins and Maynard courts correctly interpreted the statute, and the Allen court's interpretation was erroneous and cannot continue to represent the law in this state.
The workmen's compensation system completely supplanted the common law tort system only with respect to negligently caused industrial accidents, and employers and employees gained certain advantages and lost certain rights they had heretofore enjoyed. Entrepeneurs were not given the right to carry on their enterprises without any regard to the life and limb of the participants in the endeavor and free from all common law liability.
The law of this jurisdiction recognizes a distinction between negligence, including gross negligence, and wilful, wanton, and reckless misconduct. The latter type of conduct requires a subjective realization of the risk of bodily injury created by the activity and as such does not constitute any form of negligence. As this Court said in Stone v. Rudolph, 127 W.Va. 335, 346, 32 S.E.2d 742, 748 (1944), citing 38 Am.Jur. 692:
*914 Wilfulness or wantonness imports premeditation or knowledge and consciousness that injury is likely to result from the act done or from the omission to act. Wilful, malicious, or intentional misconduct is not, properly speaking, within the meaning of the term `negligence.' Negligence and wilfulness are mutually exclusive terms which imply radically different mental states. `Negligence' conveys the idea of inadvertence as distinguished from premeditation or formed intention. An act into which knowledge of danger and wilfulness enter is not negligence of any degree, but is wilful misconduct.
In our view when death or injury results from wilful, wanton or reckless misconduct such death or injury is no longer accidental in any meaningful sense of the word, and must be taken as having been inflicted with deliberate intention for the purposes of the workmen's compensation act.
In light of the foregoing discussion, the phrase "deliberate intent to produce such injury or death" must be held to mean that an employer loses immunity from common law actions where such employer's conduct constitutes an intentional tort[9] or wilful, wanton, and reckless misconduct. See Barr v. Curry, 137 W.Va. 364, 71 S.E.2d 313 (1952); Stone v. Rudolph, 127 W.Va. 335, 32 S.E.2d 742 (1944); see 2 Restatement (Second) of Torts § 500-03 (1965). While wilful, wanton, and reckless misconduct are well-established concepts, we wish to make clear that we are using the words "wilful," "wanton," and "reckless" misconduct synonymously, and that the conduct removing the immunity bar must be undertaken with a knowledge and an appreciation of the high degree of risk of physical harm to another created thereby. See Restatement (Second) of Torts § 500, Comment a at 587-88 (1965).[10]
Although liability is not simply a function of the degree of the risk created by the conduct without regard to the social utility of such conduct, the degree of the risk of physical harm necessary for a finding of reckless misconduct is greater then that which is necessary to make the conduct negligent. Liability will require "a strong probability that harm may result." Restatement (Second) of Torts § 500, Comment f. at 590 (1965).
II
Having defined "deliberate intention" within the meaning of the Workmen's Compensation Act, we now consider the instant cases against that substantive law background. In Mandolidis and Snodgrass the plaintiffs' appeal from trial court orders granting summary judgments for the respective defendants. The single issue for decision in both cases is, of course, whether the trial courts were correct in granting the summary judgments. These cases will be discussed first.
On April 5, 1974, plaintiff Mandolidis was employed as a machine operator in the furniture manufacturing business of Elkins Industries, Inc. While operating a 10-inch table saw not equipped with a safety guard, his right hand came in contact with the saw blade resulting in the loss of two fingers and part of the hand itself.
On April 1, 1976, Mandolidis filed a complaint against Elkins Industries, Inc., in the Circuit Court of Randolph County, alleging *915 that the table saw he was operating when he was injured was not equipped with a safety guard, although it was well known by the defendant that in the defendant's industry that this constituted a violation of federal and state safety laws and accepted industry standards; that the defendant had actual knowledge of the consequences of running such machinery without safety guards, because employees other than the plaintiff had previously suffered injuries as a result of the lack of such guards; that the plaintiff objected to operating the saw without a guard and was told by the defendant, through its agent, to operate the machine or be fired from his job; that this order was issued by the defendant in wilful, wanton, malicious, and deliberate disregard for the well-being of the plaintiff with a deliberate intention to injure or kill him; that a short period of time before plaintiff's injury, federal inspectors had cited the defendant for violations of the Occupational Health and Safety Act because the table saw involved did not have a guard; that the inspectors put tags on the machine forbidding its use until equipped with a guard; that defendant installed a guard of the incorrect type and then shortly thereafter ordered it removed in wilful, malicious, and deliberate disregard of federal and state safety laws; that the defendant fired an employee who refused to operate the saw without a guard; that the defendant ordered employees to operate machines without guards in order to improve production speed and thus increase profits in utter and malicious disregard of the well-being of the plaintiff; that the aforesaid actions and inactions were taken by defendant with the deliberate intention to kill or injure plaintiff, and that the defendant had actual notice and knowledge of the dangerous condition of the unguarded saw and the injuries of other employees caused by that condition; that defendant wholly, wilfully, wrongfully, deliberately, maliciously and with intent to injure or kill plaintiff refused to provide plaintiff with reasonably safe equipment and a reasonably safe place to work; and that the conduct of the defendant was such as to constitute a wanton, wilful, and malicious disregard of the life and limb of its employees so as to warrant a specific finding of a deliberate intent to inflict bodily harm or injury upon its employees in general and the plaintiff in particular.
The defendant filed a motion to dismiss under R.C.P. 12(b) accompanied by affidavits denying any deliberate intent to injure the plaintiff, and contending that a subscriber to the Workmen's Compensation Fund it was immune from a common law damage action. An affidavit by the President and General Manager of the defendant corporation stated that defendant was a subscriber to the Workmen's Compensation Fund, and denied both the allegation that the defendant deliberately intended to injure the plaintiff and the allegation that he, or anyone at his direction or in his presence, ever threatened or intimidated the plaintiff concerning the operation of his machine. In a second affidavit, defendant's foreman admitted there was no safety guard on the table saw at the time of plaintiff's injury but expressly denied that he or anyone in his presence had ever ordered the plaintiff to remove the safety guard, or to operate the saw without a safety guard. Similarly, he denied knowledge of the plaintiff being threatened with the loss of his job unless he operated the unguarded saw. The foreman's affidavit also asserted that just prior to the occurrence in question he had been assisting the plaintiff by acting as an "off bearer"; that he had to leave for a few minutes so he expressly instructed the plaintiff not to continue to operate the saw alone; and that plaintiff did operate the saw alone resulting in the injury complained of to his hand.
Plaintiff deposed seven former employees of Elkins Industries. Five of these employees, including the President and the steward of a union which once represented employees of Elkins Industries, Inc., indicated that they had complained on numerous occasions *916 to the plant foreman and the plant manager regarding the lack of guards on the table saws. The steward indicated that on one occasion when he complained about the lack of saw guards, the plant foreman just "hee hawed around about it." The former union president indicated that she informed the plant manager that the absence of saw guards was a violation of law, but he "just shrugged his shoulders." Three former employees indicated they had seen the plant foreman remove the guards from the saws. The former plant safety inspector indicated that he had shut down and placed an out-of-order sign on a guardless saw, but the foreman "tore off" the sign and placed the saw back in operation. Three of the former employees indicated that they had been told by the foreman that the guards slowed down production. In his deposition, the plaintiff contradicted the foreman's claim that he told the plaintiff not to continue to operate the saw alone. The plaintiff's version was corroborated by the deposition of another employee working near the plaintiff when the injury occurred.
Four of the former employees, including the plaintiff, indicated that the foreman's instructions via the plant manager were that anyone refusing to run a saw without a guard would be "sent home" or fired. One former employee indicated that he had been fired for refusing to run a saw without a guard. These assertions expressly contradicted the affidavits of the foreman and plant manager. Plaintiff's deposition expressly contradicted the assertion contained in the plant manager's affidavit that the allegation of deliberate intent in the plaintiff's complaint was made only to circumvent the immunity bar. The former union president indicated that she informed the plant manager that the plaintiff had been injured on a guardless saw and his reply was, "So what?" "He's getting compensation."
On August 17, 1976, the trial court, upon consideration of all matters presented to it, determined that "a deliberate intent to injure plaintiff was lacking," sustained the defendant's motion to dismiss, and dismissed the action with prejudice.
The Snodgrass case arises as a result of events that occurred on May 17, 1974. At that time one of the defendants, United States Steel Corporation, was engaged in the construction of a bridge across the New River Gorge in Fayette County, and the plaintiffs, Carl Ray Snodgrass, James H. Taylor, Owen Facemire, Jr. and Gerald L. King, and the plaintiff Joanne Snodgrass' decedent Daniel C. Snodgrass, were employees of the defendant, United States Steel Corporation and were engaged in work in connection with the aforementioned bridge construction. The allegations of plaintiffs' complaint filed in the Circuit Court of Fayette County describe the events of that day in the following manner: The plaintiffs and plaintiff's decedent were working on a platform located adjacent to the construction at the northern bridge abutment. The platform was made of rough lumber and was approximately 6 feet wide, 30 feet long and 14 inches thick. One end of the platform rested on the northern rim of the gorge near the abutment, while the southern end rested on steel reinforcing rods extending from a concrete bridge pier. The platform spanned an excavation, of a depth of approximately 25 feet. The platform became dislodged when a large wire cable was dragged across it and the platform and the men working on it fell into the excavation, causing serious and permanent injury to some of the plaintiffs and death to one of the plaintiff's decedent. Plaintiffs allege that the injuries and death were proximately caused by the negligent and wilful acts of the defendant, more particularly, the failure to provide a safe place to work, the failure to advise or warn the plaintiffs of the impending danger, the failure to equip the plaintiffs with proper tools and equipment, the failure to adopt reasonable safety standards, the failure to provide adequate safety precautions, the failure to follow reasonable safety standards, the violation of the employees collective bargaining agreement *917 regarding safety rules, and the violation of the laws of the State of West Virginia and of the United States of America. Plaintiffs contend that these acts and omissions were such that they constituted a wilful and intentional injury.
The defendant filed a motion to dismiss asserting, inter alia, the immunity from common law damage actions provided by the workmen's compensation statute. The motion was accompanied by two affidavits. The first affidavit by the Workmen's Compensation Commissioner indicated that defendant was a self-insurer within the meaning of the workmen's compensation statutes; that defendant had provided its own system of compensation and was not in default under the law; and that plaintiffs had accepted benefits under the Act for the injuries that occurred on May 17, 1974. The second affidavit by the defendant's project superintendent merely stated the conclusion that the injuries and death complained of were the result of an unforeseen accident and did not result from the deliberate intention of the defendant. The affidavit contains no facts regarding the conditions existing at the time of the incident, nor does it contain facts regarding the occurrence.
Plaintiffs filed an affidavit by plaintiff Owen Facemire which, among other things, asserted that the defendant's actions in violating statutes, rules, regulations, and contractual provisions were deliberate and intentional. The affidavit also described the construction of the work platform and claimed that the use thereof was a deliberate violation of occupational safety and health standards, the construction, safety and health regulations of the Department of Labor, and the West Virginia Safety Code for building construction of the West Virginia Department of Labor. Additionally, the affidavit described in detail the manner in which the event occurred.
On March 21, 1977, the trial court granted United States Steel's motion to dismiss upon consideration of all the matters presented by the parties, and dismissed plaintiffs' action with prejudice.
Notwithstanding the style of defendant's motions to dismiss and the wording of the dismissal orders in Mandolidis and Snodgrass, the trial courts' consideration of affidavits and depositions converted the motions to dismiss to motions for summary judgment under Rule 56. Wilfong v. Wilfong, 156 W.Va. 754, 197 S.E.2d 96 (1973). Accordingly, the sole issue in both cases is whether the trial courts erred in concluding there was no genuine issue of material fact and the defendants were entitled to judgment as a matter of law.
III
Rule 56(c) provides the standard for determining whether a summary judgment in a given situation should be granted. It states in relevant part that "the judgment shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
In making the determination of whether a motion for summary judgment was properly granted, it is essential that each case be considered on its own peculiar facts and circumstances. Howard's Mobile Homes, Inc. v. Patton, 156 W.Va. 543, 195 S.E.2d 156 (1973).
It is basic summary judgment law that "`a party who moves for summary judgment has the burden of showing that there is no genuine issue of fact and any doubt as to the existence of such issue is resolved against the movant for such judgment." Johnson v. Junior Pocahontas Coal Co., W.Va., 234 S.E.2d 309, 315 (1977), quoting, syllabus point 6 of Aetna Casualty & Surety Company v. Federal Insurance Co., 148 W.Va. 160, 133 S.E.2d 770 (1963). And this Court held in Oakes v. Monongahela Power Co., W.Va., 207 S.E.2d 191, 194 (1974) that "although summary judgment ... is *918 a device designed to effect a prompt disposition of controversies on their merits without resort to a lengthy trial, Hanks v. Beckley Newspapers Corp., 153 W.Va. 834, 172 S.E.2d 816 (1970), such judgment should be granted only when it is clear that there is no genuine issue of fact to be tried. As succinctly stated in Haga v. King Coal Chevrolet Co., 151 W.Va. 125, 150 S.E.2d 599 (1966) `If a genuine issue as to any material fact is raised in any action, a summary judgment under the provisions of Rule 56... can not be granted.'" See also Aetna Casualty and Surety Co., supra.
The record in Mandolidis discloses that there were material facts in issue. Was the plaintiff told by a company agent that he would be discharged if he refused to run an unguarded saw? Did the foreman tell the plaintiff to wait until his return before continuing to run the saw? The circuit court's order unfortunately does not contain findings of fact or conclusions of law, but it is clear from the record that there were facts in issue. Accordingly, implicit in the court's ruling is the judgment that there were no material facts in issue. This Court cannot agree. The plaintiff is entitled to prove these facts in support of his case, because these facts render the desired inference, when taken together with other facts the plaintiff clearly intends to prove, i. e., that the defendant acted with deliberate intent, more probable than it would be without those facts.
We are of the view that complicated industrial "accidents," wherein the state of mind of company representatives is critical, seldom lend themselves to disposition by summary judgment, and where there is any doubt such a motion should be refused. Conclusory affidavits simply denying the existence of the requisite intent, obviously make no contribution to the factual development of the litigated event and, therefore, provide no assistance to the trial court in determining whether a genuine issue of material fact exists. It is for this reason that Rule 56(e) provides that affidavits "shall set forth such facts as would be admissible in evidence."
The trial court in Mandolidis "determine[d] that the deliberate intent to injure... is lacking." The Court thus found that even if all plaintiff's facts were taken as true plaintiff could not as a matter of law meet the evidentiary burden of proof with regard to a necessary element of his cause of action. The court determined that even if all of plaintiff's facts were taken as true, they would not support an inference that the defendant employer acted with "deliberate intent." In other words, reasonable men could not infer from all those facts the necessary intent. We do not believe that reasonable men could not infer the necessary intent from the facts in Mandolidis. Accordingly, the court's determination of this issue was erroneous. For these reasons the court's final order in Mandolidis was in error.
IV
Applying the law to the record in Snodgrass leads to the ineluctable conclusion that the court acted improperly in granting the defendant's motion for summary judgment. Based upon our view of the record, we draw the following conclusions with regard to the existence of an issue as to a material fact. The plaintiff's complaint alleges the violation of numerous safety laws, rules, and regulations. The complaint contains factual allegations regarding the improper construction of the platform and describes the circumstances surrounding the actual fall of the platform. Plaintiff's affidavit contains details as to the violation by the defendant of numerous laws, rules and regulations. The affidavit contains facts concerning the construction of the platform and describes the fall of the platform. The defendant chose not to file an answer relying upon a motion to dismiss, thus the allegations of the plaintiff's complaint remained undenied.
*919 The defendant, in support of the motion, filed two affidavits. The affidavit of John Kelly, project superintendent for the defendant, contains no facts with regard to the conditions existing at the time of the accident nor does it contain facts regarding the actual occurrence in question. The affidavit states the bare legal conclusion that the injuries and death in question were the result of an unforeseen accident and did not result from the deliberate intention of the defendant to produce such injury or death. The statement is a conclusion as to the ultimate fact in issue; its admissability at trial would be questionable. See Rule 56(e).
Save this one conclusion as to the ultimate fact, the record contains no facts supporting defendant's motion. This record leads to the conclusion that the principles set forth in this opinion were not followed by the trial court in sustaining the defendant's motion. The facts alleged in plaintiff's complaint and the facts set forth in plaintiff's affidavit were material since their existence or nonexistence might affect the result of the action.
The trial court's memorandum letter of March 4, 1971, indicates that it found that even if all the plaintiff's facts were regarded as true, reasonable men could not infer therefrom the necessary intent. In pertinent part it reads:
The file establishes that this defendant had the protection of the subscriber to the W. Va. Workmen's Compensation law and that the plaintiffs had received compensation benefits. The plaintiffs accordingly, would have no right of action against the defendant employer unless it could be established that the death and the injuries complained of were intentionally inflicted upon the employees involved. The specific allegations of the complaint and the affidavit of Mr. Facemire failed even to come close to establishing that the accident which is the basis of this action and the consequent injury to the employees were intentionally caused or inflicted by the employer.
The affidavit of Mr. Facemire asserts that the scaffold on which they were working was not properly constructed and may not have had sufficient safety features to begin with, but he states that the scaffold was caused to fall by a crane operator dragging a 45 ton wire cable across the end of it without the knowledge that the plaintiffs were on or near the scaffold. Certainly this does not establish intentional injury. (emphasis supplied)
On this record we cannot conclude that reasonable men could not draw varying inferences from the facts of record and that reasonable men could not infer that the injuries and death complained of resulted from a deliberate intent to produce such an injury or death within the contemplation of the workmen's compensation statute. For the above-stated reasons, we conclude from an examination of the entire record, the proof presented a genuine issue as to whether the plaintiff was injured as a result of a deliberate intent and that the trial court's ruling sustaining the defendant's motion for summary judgment was in error.
V
In Dishmon, the final case, the Circuit Court of Boone County, by order entered September 27, 1976, sustained a motion to dismiss on behalf of the defendant, Eastern Associated Coal Company.
The record reveals that on June 5, 1975, at about 10:30 P.M., Lloyd E. Dishmon reported for work at the Eastern Associated Coal Company, Harris No. 2 Mine, at Bald Knob in Boone County. Shortly thereafter, a large quantity of slate fell from the roof of his work area crushing him to death. On June 15, 1976, plaintiff Mary Kay Dishmon, Administratrix of the Estate of Lloyd E. Dishmon, filed a complaint against decedent's employer, Eastern Associated Coal Corporation alleging, among other things, that at all relevant times the defendant was subject to the provisions of 30 U.S.C. § 862 *920 and 30 U.S.C. § 873(a) relating to roof supports, blasting and explosives; was subject to the regulations of the Secretary of the Interior relating to roof supports and blasting; and was subject to the provisions of W.Va. Code § 22-2-26, 27, 29 and 32 relating to roof space, rib supports, explosives and blasting.
Plaintiff further alleges that the defendant deliberately, intentionally, wilfully and wantonly allowed employees, including plaintiff's decedent, to work in conditions which were in violation of the aforementioned laws, rules and regulations, and that the proximate result of such deliberate, intentional wilful and wanton misconduct was the death of plaintiff's decedent.
The defendant employer did not answer but filed a motion to dismiss asserting that the complaint should be dismissed on the basis of the employer's immunity secured by W.Va. Code § 23-2-6, and further that the complaint failed to allege that the defendant deliberately and intentionally killed plaintiff's decedent as required by W.Va. Code § 23-4-1. The court sustained the defendant's motion to dismiss.
The purpose of a motion under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure is to test the formal sufficiency of the complaint. For purposes of the motion to dismiss, the complaint is construed in the light most favorable to plaintiff, and its allegations are to be taken as true. Since common law demurrers have been abolished, pleadings are now liberally construed so as to do substantial justice. W.Va. R.C.P. 8(f). The policy of the rule is thus to decide cases upon their merits, and if the complaint states a claim upon which relief can be granted under any legal theory, a motion under Rule 12(b)(6) must be denied. United States Fidelity & Guaranty Co. v. Eades, 150 W.Va. 238, 144 S.E.2d 703 (1965). "The trial court's inquiry [is] directed to whether the allegations constitute a statement of a claim under Rule 8(a)." Chapman v. Kane Transfer Co., W.Va., 236 S.E.2d 207, 212 (1977). W.Va. R.C.P. 8(a) reads as follows:
(a) A pleading which sets forth a claim for relief . shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief ....
In a recent case we tried to assist the lower courts in ruling on 12(b)(6) motions by adopting the standard promulgated by the United States Supreme Court for the identical Federal Rule 12(b)(6). The third syllabus point of Chapman v. Kane Transfer Co., supra at 208 sets out the standard:
3. The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
All that the pleader is required to do is to set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist. The trial court should not dismiss a complaint merely because it doubts that the plaintiff will prevail in the action, and whether the plaintiff can prevail is a matter properly determined on the basis of proof and not merely on the pleadings. Wright & Miller, Federal Practice and Procedure : Civil § 1216 (1969).
In view of the liberal policy of the rules of pleading with regard to the construction of plaintiff's complaint, and in view of the policy of the rules favoring the determination of actions on the merits, the motion to dismiss for failure to state a claim should be viewed with disfavor and rarely granted. The standard which plaintiff must meet to overcome a Rule 12(b)(6) motion is a liberal standard, and few complaints fail to meet it. The plaintiff's burden in resisting a motion to dismiss is a relatively light one. Williams v. Wheeling Steel Corp., 266 F.Supp. 651 (N.D.W.Va. 1967).
*921 We believe the complaint, when considered in the light most favorable to the plaintiff, with its allegations taken as true, states a claim for relief. Regardless of how difficult the proof may be when it comes to trial, the plaintiff should have the benefit of discovery. If all the plaintiff's allegations are taken as true, we cannot say that reasonable men could not infer therefrom the intent necessary to overcome defendant's immunity. We believe the judgment of the trial court was in error. Whether such an inference standing alone could support a verdict in plaintiff's favor is a matter for determination at a later time. For these reasons, we feel that the court erred in sustaining the defendant's motion to dismiss.
Accordingly, we hereby reverse and remand all three cases to the respective circuit courts for further proceedings consistent with this opinion.
Reversed and remanded.
NEELY, Justice, dissenting:
This dissent may be unique in the annals of dissenting opinions in this State in that I dissent to the tone of the majority opinion rather than to its holding. A fair reading of the majority opinion implies to me that this Court has been waiting many years to remove the yoke of oppression from the workers of this State by providing a vehicle for recovery of common law jury awards for negligently inflicted, work-related injuries in addition to the admittedly parsimonious awards of Workmen's Compensation. Furthermore, the majority opinion fairly implies that we are awaiting an opportunity to create a new legal fiction worthy of the common law fine and recovery of the ancient Britons[1] to be known as "constructive intent to injure" by which we shall magnanimously supplement compensation awards in every routine industrial accident.
Our law has long recognized that injuries arising from the deliberate intention of the employer to injure are outside the immunity provision of the workmen's compensation law. W.Va.Code, 23-4-2 [1969]. Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739, 65 S.E.2d 87 (1951); Allen v. Raleigh-Wyoming Mining Co., 117 W.Va. 631, 186 S.E. 612 (1936). See also, Eisnaugle v. Booth, W.Va., 226 S.E.2d 259 (1976). It appears to me that where my more moderate views are impaled in these consolidated cases is pure procedure, i. e., in the interrelationship between the practice of notice *922 pleading and the necessity to eliminate all conceivable factual disputes before summary judgment can properly be awarded.
I cannot cavil with the majority's reversal based on procedure. Notice pleading, pursuant to W.Va.R.C.P. 8(a), and summary judgment practice, pursuant to R.C.P. 56(c) prevent a judge from "sniffing out" a totally meritless case and summarily dismissing it. I cannot disagree with the majority opinion that in all three cases the petitioners Alleged sufficient matter to be allowed an opportunity to develop facts.
Nonetheless, I have some educated feelings for the facts in each of these three cases and it appears to me that only in the Mandolidis case has the plaintiff any legitimate grounds for recovery. In that case not only was a safety statute violated, but, in addition, the particular safety hazard at issue, a dangerous saw, was brought to the attention of the management by a safety inspector who closed down operation of the saw; management disregarded the safety shut down; and, management ordered the injured workman to operate the dangerous saw implying by past actions that to do otherwise would cost him his job. These facts, if proven, demonstrate more than even gross negligence; they demonstrate a willful, wanton, and reckless disregard for human safety.
I doubt that the plaintiffs in Snodgrass or Dishmon can develop anything other than gross negligence, and I would hasten to point out that gross negligence is not the same thing as either intent to injure or willful, wanton, and reckless disregard for human safety. In order for a workman to recover under the intentional injury exception to workmen's compensation immunity, W.Va.Code, 23-4-2 [1969], the standard of proof should be at least as high as that required to prove malice in a murder case. If an act involves such a wanton and willful disregard of an unreasonable human risk as to constitute malice then no actual intent to kill or injure is necessary.[2]
This is not the same standard used for criminal negligence. A motorist might pass another car or speed in a manner which, if he causes the death of another, would make him guilty of manslaughter. Another man, without any specific intent to kill anyone, might walk onto his porch and open fire with a machine gun which, if he causes the death of another, would make him guilty of murder. What makes the motorist guilty of manslaughter and the shooter guilty of murder is the shooter's cruel and wicked indifference to human life. The key is that the act of the shooter shows a viciousness not found in the motorist.[3] The motorist is violating a positive law mandate while the shooter is violating a natural law mandate.
Accordingly, what concerns me in the tone of the majority opinion is its inspiration to the bar to do a substantial disservice to the economy of this State by instituting frivolous suits every time a workman is injured by anything other than his own negligence. Violation of a safety statute alone does not constitute intentional injury, Evans v. Allentown Portland Cement Co., 433 Pa. 595, 252 A.2d 646 (1969); unsafe working conditions do not constitute intentional injury. Southern Wire & Iron Co. v. *923 Fowler, 217 Ga. 727, 124 S.E.2d 738 (1962); failure to follow recommended procedures or to take standard precautions do not constitute intentional injury. All people, both employers and workmen, are negligent much of the time, and the theory of the Workmen's Compensation Act is to compensate work-connected injury as a normal cost of doing business. What was merely common sense in days of yesteryear has today been codified into elaborately detailed safety codes, so that to say that a safety statute was violated is only to say that an employer has failed to use reasonable care. Violation of a positive law mandate does not elevate negligence to intent to injure no matter how gross the negligence; only violation of a natural law mandate, i. e., an evil blackness of heart and callous indifference to the suffering of others, would so elevate it. While we may be outraged by the parsimony of the statutory compensation awards, we cannot be outraged at the theory of the compensation scheme, which while denying a claimant the advantage of a common law judgment when the employer is at fault, still has the employer pay even when the claimant is at fault.
Often it is procedure itself which distorts the entire process; the tone of the majority opinion invites nuisance law suits, a high percentage of which will be settled (particularly by small employers) in preference to sustaining the costs of litigation. The risk, not necessarily the eventuality, of an enormous common law jury award in the event of a capricious judicial process (i. e., an unusually plaintiff oriented trial judge combined with faulty appellate review) are such that some settlements not contemplated by the statutory scheme will inevitably be forthcoming. Settlements are based on the if's, maybe's and might's of the judicial process, and not upon the inevitability of a result in consonance with the ideal administration of the law. The settlements I hypothesize combined over the course of a year, plus the attendant costs of defending frivolous law suits, are the type of expenses which not only divert needed resources from the fund available for wages, plant modernization, and stockholders' dividends, but contribute to inflation by increasing costs and prices in the oligopolistic sector of the economy, and reducing production in the market sector of the economy where companies unable to pass along these costs collapse.
Obviously, I am not alleging that by being reactionary about the administration of our workmen's compensation laws we can cure the economic ills of mankind everywhere; I am merely pointing out that numerous untoward consequences can arise from lack of attention to the distortive effects of the legal process itself, and thus tone in judicial opinions becomes important.
Without amending the Rules of Civil Procedure or completely reversing this Court's direction on the law of summary judgment, it would be difficult to encourage trial judges to dismiss frivolous law suits on the bare pleadings without an opportunity to develop the facts. Nonetheless, the law appears clear that the trial courts would be remiss in their duty if they permitted more than one case alleging intentional injury in a hundred to go to the jury. With regard to cases involving nothing but gross negligence on the part of the employer, the plaintiff should be given an opportunity to develop his case on depositions, and then the trial court should grant summary judgment. If neither plaintiff nor defendant wishes to engage in extensive pre-trial discovery, then at the trial stage, notwithstanding the impaneling of a jury, the trial judge should dismiss the plaintiff's case at the close of plaintiff's evidence without the least hesitation unless facts have been clearly proven demonstrating deliberate intention to injure or kill or a reckless, wanton, and willful disregard of human life. This is one area of the law in which the threshold issue concerning statutory immunity is in no regard a "jury question." Minute supervision by the trial judge is mandated in all cases because the exception to the blanket workmen's compensation immunity *924 which would permit a plaintiff to submit his case to a jury is so narrow, and the construction of what does or does not constitute a case within the exception is so technical, that trial judges should ruthlessly decide the issue as a matter of law in the first instance.
I recognize that the tone of the majority opinion faithfully represents the judicial philosophy of the majority writer, but it implies an attitude on the part of this Court which is contrary to both the legislative intent and this Court's faithful interpretation of that intent over the years. The tone is wrong for what it implies; the holding is entirely correct with regard to Mandolidis, but correct only in the most narrow procedural way with regard to Snodgrass and Dishmon.
MILLER, Justice, concurring:
I concur in the majority opinion as I do not believe it represents a departure from this Court's construction of the deliberate intent exception[1] to the immunity from suits for damages extended to employers who subscribe to the Workmen's Compensation Fund.[2]
The differences between our first case, Collins v. Dravo Contracting Co., 114 W.Va. 229, 171 S.E. 757 (1933), and the last, Eisnaugle v. Booth, W.Va., 226 S.E.2d 259 (1976), are at best semantical. Both Allen v. Raleigh-Wyoming Mining Co., 117 W.Va. 631, 186 S.E. 612 (1936), and Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739, 65 S.E.2d 87 (1951), share a common bond with Maynard v. Island Creek Coal Co., 115 W.Va. 249, 175 S.E. 70 (1934), in that they utilize this key passage from Maynard:
"It may be that the carelessness, indifference and negligence of any employer may be so wanton as to warrant a judicial determination that his ulterior intent was to inflict injury." [115 W.Va. at 253, 175 S.E. at 72]
Maynard also spoke of the exemption from liability to employees for injuries received resulting from their employment, "except, if such injuries be willfully inflicted by the employer." [115 W.Va. at 252, 175 S.E. at 71] [emphasis added]
The divergent language in our cases arises from the struggle to place the term "deliberate intention" into an existing legal compartment. Judge Kenna identified this problem in Collins, stating:
"There are definitions of intent in the books more variant than the manifold uses to which that word is put. They range from the statement that a man is presumed to intend the ordinary and usual consequences of his acts, to definitions which make intent practically depend upon the existence of actual malice. In its nature, it is bound to be the existence of a state of mind, and since that state of mind must be arrived at in proof by the establishment of facts extraneous to the mind itself, it seems to us that it is always bound to be a deduction or conclusion from the facts so established. In the *925 very nature of things, these facts, in the main, are matters of evidence and not of pleading." [114 W.Va. at 235,171 S.E. at 759]
Generally, the law recognizes that intention[3] can be ascertained either from verbal or nonverbal conduct of a party. The simplest proof is where the actor admits he consciously intended his conduct to produce the result it did.
The more usual situation is where intention must be inferred from a person's conduct.[4] Here, the inquiry is directed at the degree of probability that the conduct will produce a given result. The higher degree of probability that a given result will follow, the greater the intention is inferred from the conduct.
The link between the conduct and the resulting harm is not only a causative inquiry, but includes another factor by which the conduct is judgedthe degree of seriousness of harm. Conduct which carries a high probability that serious harm will result is high on the scale of intentional conduct. Finally, the standard by which the conduct and its resulting harm is judged to determine its "intentional" characteristics is not only the subjective knowledge of the individual, but what would be known by a reasonable person.[5]
It is apparent that because intent is measured by the degree of harm occasioned by given conduct, the law labels both the conduct and the intent. Thus we speak of negligent conduct, meaning it is at the bottom of the intent scale, which is to say conduct that is not intentional. At the far end of the scale is the type of intent necessary for first degree murder, which is beyond the concept of malice and involves deliberation and premeditationthe specific intent to kill. State v. Starkey, W.Va., 244 S.E.2d 219 (1978); State v. Stevenson, 147 W.Va. 211, 127 S.E.2d 638 (1962).[6]
*926 The problem, of course, is an ancient one. It is the attempt to label or categorize certain acts in order to fit them into our precedential system of law. Admittedly, there is an almost infinite number of variations of conduct such that any process of labeling or categorizing can be criticized as imprecise. Yet, the law requires the effort of systematization to be done, or runs the risk of deciding cases not precedentially, but purely on an ad hoc basis.
It seems to me that a fair reading of our prior cases in this area demonstrates that it was never contemplated that the term "deliberate intention" referred only to the type of intent necessary to support a charge of first or second degree murder. If such were the case, there would have been no justification in Allen and Brewer, which were the first cases to use the term "specific intent," to quote the Maynard statement of a wanton injury. Moreover, Maynard's use of the term "willfully inflicted" as being sufficient to hold the employer liable for an injury has never been criticized.
Certainly all of our cases in this field have held that gross negligence is not equivalent with deliberate intent. To my mind the key language in the majority opinion is:
"We wish to make clear that we are using the words `wilful,' `wanton,' and `reckless misconduct' synonymously, and that the conduct removing the immunity bar must be undertaken with a knowledge and an appreciation of the high degree of risk of physical harm to another created thereby." [246 S.E.2d at p. 914]
I believe this rule is perfectly consistent with our former cases and, if applied, would not have changed the result in any of them. This rule, as I understand it, builds on the standard for wilfulness or wantonness in Stone v. Rudolph, 127 W.Va. 335, 32 S.E.2d 742 (1944), which "... imports premeditation or knowledge and consciousness that injury is likely to result ..." [127 W.Va. at 346, 32 S.E.2d at 748] by adding the concept that there is knowledge the conduct carries a "high degree of risk of physical harm." This is no insubstantial hurdle of proof.
In view of the tone of the dissent,[7] I am constrained to state that I believe his theoretical fears of increased nuisance suits are not well-founded. It is an argument customarily advanced by those who have had little actual trial experience.
No capable trial lawyer can survive by filing nuisance suits, as the contingent fee contract rewards only those who can persevere to a decent monetary recovery. The type of case here involved is complex and depends not on a mere showing that certain safety regulations have been violated, but proof that the employer consciously sanctioned repetitive violations, knowing he had thereby exposed his employee to a high risk of physical harm, which risk did in fact cause the injury.
Because this type of case is often complex and since it requires proof of intent, from a procedural standpoint early disposition by a motion to dismiss or motion for summary judgment based on conclusionary affidavits is not warranted. The rule is stated in 10 Wright & Miller, Federal Practice and Procedure: Civil § 2730 (1973):
"Since the information relating to state of mind generally is within the exclusive knowledge of one of the litigants and can be evaluated only on the basis of circumstantial *927 evidence, the other parties normally should have an opportunity to engage in discovery before a summary judgment is rendered. But even this may not be enough. Inasmuch as a determination of someone's state of mind usually entails the drawing of factual inferences as to which reasonable men might differ a function traditionally left to the jury summary judgment often will be an inappropriate means of resolving an issue of this character." See also Conrad v. Delta Air Lines, Inc., 494 F.2d 914 (7th Cir. 1974); Denny v. Seaboard Lacquer, Inc., 487 F.2d 485 (4th Cir. 1973); Friedman v. Meyers, 482 F.2d 435 (2nd Cir. 1973); 6 Moore's Federal Practice § 56-17 (41.-1) (2d ed. 1976); 3 Barron & Holtzoff, Federal Practice and Procedure § 1232.2 (1958).
In my view the discovery developed in Mandolidis displayed sufficient facts, as outlined in the majority opinion, to preclude the granting of a summary judgment against the plaintiff on the issue of deliberate intention. If the plaintiff can sustain the same level of proof at trial, the question of deliberate intention would be for the jury.
Both Snodgrass and Dishmon were prematurely terminated. In the former by conclusionary affidavits, and the latter based solely on the claimed inadequacy of the complaint. All we have held is that these two cases are entitled to further development through discovery before the issue of deliberate intention can be determined under the guidelines of our opinion.
NOTES
[1] W.Va.Code § 23-2-6 provides, in pertinent part, as follows:
Any employer subject to this chapter who shall subscribe and pay into the workmen's compensation fund the premiums provided by this chapter or who shall elect to make direct payments of compensation as herein provided, shall not be liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring, after so subscribing or electing, and during any period in which such employer shall not be in default in the payment of such premiums or direct payments and shall have complied fully with all other provisions of this chapter. . 1974 W.Va.Acts, ch. 145.
W.Va.Code § 23-2-6a states:
The immunity from liability set out in the preceding section [§ 23-2-6] shall extend to every officer, manager, agent, representative or employee of such employer when he is acting in furtherance of the employer's business and does not inflict an injury with deliberate intention. 1949 W.Va.Acts, ch. 136.
[2] W.Va.Code § 23-4-2 reads, in relevant part:
If injury or death result to any employee from the deliberate intention of his employer to produce such injury or death, the employee, the widow, widower, child or dependent of the employee shall have the privilege to take under this chapter, and shall also have cause of action against the employer, as if this chapter had not been enacted, for any excess of damages over the amount received or receivable under this chapter. 1913 W.Va.Acts, ch. 10 § 28.
[3] See generally, 1 A. Larson's, Workmen's Compensation Law ch. 1-4 (1978); W. Prosser, The Law of Torts § 80 (4th ed. 1971). This excerpt from former Governor Henry Drury Hatfield's speech to the Legislature indicates West Virginia's experience with industrial accidents was not unlike experienced elsewhere in the county:
In harmony with the advance of civilization and our duty to our neighbor, a more humane system has grown up in the way of compensating workmen who are injured while engaged in the course of their employment. The burden in the past fell upon the employee first, but in case of death, to those dependent upon him. As the law stood previous to the passage of the Workmen's Compensation law, the industry was indemnified by the insurance companies, and less than fifteen per cent of the injured received any damages in case of litigation, and then, after a long-drawn-out litigation, which resulted in practically nothing for the plaintiff. The injustice to the employee and waste of time and money to the tax-payer has excited the attention of public spirited men, and it has been demonstrated that it would have been a saving of money for the tax-payer if a reasonable compensation had been paid out of the State treasury, thereby preventing court cost and injustice. There is, however, no good reason why such a procedure should be necessary in the face of other remedies, which in justice and good conscience should be willing to do their part. Journal of the Senate, App. A, p. 67 (1915).
[4] See generally, Journal of the Senate, p. 103 06 (1913) containing former Governor Hatfield's address to the Legislature advocating passage of a compensation law to deal with accidents in modern industrial conditions.
[5] This excerpt from Dravo is particularly significant:
We cannot see why the master cannot omit to perform a certain duty imposed by law upon him with the deliberate intent by so doing to inflict injury or death upon his employee ... If the defendant permitted the conditions set forth in the declaration to exist; if they were conditions that would naturally result in injury or death to its employees, and lent themselves to that purpose; if the defendant, prior to the happening that resulted in the death of plaintiff's decedent, knew full well that such conditions existed; then, however difficult the proof may be when it comes to that, as a matter of pleading, we cannot see why the very conditions alleged as matters of fact might not have been permitted to continue with the deliberate intent on the part of the employer, and with a design, that their continuance should cause injury or death or both to its employees. Id. at 234-35, 171 S.E. at 759.
[6] See 72 W.Va.L.Rev. 90 (1970).
[7] 114-C Supreme Court Records and Briefs, Brief for the Defendant in Error, pp. 17-18.
[8] "[I]t is almost universally conceded that a corporation may be criminally liable for actions or omissions of its agents in its behalf." W. LaFave and A. Scott, Handbook on Criminal Law 229 (1972); see also State v. B. & O. R. R. Co., 15 W.Va. 362 (1879) (holding a corporation is indictable for misdemeanor of sabbath breaking); R. Perkins, Criminal Law, 641 (2nd ed. 1969). A specific or subjective intent to kill is not essential to murder in the second degree. Syl. pt. 3, State v. Morrison, 49 W.Va. 210, 38 S.E. 481 (1901); State v. Starkey, 244 S.E.2d 219 (W.Va. 1978), citing, State v. Hertzog, 55 W.Va. 74, 46 S.E. 792 (1904). Malice or the criminal intent necessary for a second degree murder conviction may be inferred from the total circumstances surrounding the act or omission. State v. Young, 50 W.Va. 96, 40 S.E. 334 (1901); State v. Douglass, 28 W.Va. 297 (1886); see W. LaFave and A. Scott, op. cit. supra § 70, discussing the conflicting views and authorities as to whether depraved-heart murder requires a subjective realization of very high risk of death or serious bodily injury; see also § 78 thereof for discussion of competing authority as to whether criminal negligence or involuntary manslaughter requires a subjective realization of the high degree of risk of serious bodily injury. See also R. Perkins, op. cit. supra 760-61.
[9] We adopt the Restatement Second of Torts definition of "intent." Intentional ". denote[s] that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it." Restatement (Second) of Torts § 8A (1965). See also W. Prosser, Handbook of the Law of Torts 31-2 (4th ed. 1971).
[10] Proof of the subjective realization of the risk may and must generally be proved by circumstantial evidence. For example, the defendant's knowledge of the existence and contents of federal and state safety laws and regulations is competent evidence. Prior deaths or injuries as a result of the risk would certainly be relevant.
[1] "Fine and recovery was a fictitious and prearranged suit in the form of a writ of right started by the person to whom the property was to be conveyed in fee simple. He would allege (of course falsely) that he was the owner of the property in fee simple by a title superior to the defendant's; that the defendant had no title to the land, having come into possession of it after the complainant had been wrongfully ousted therefrom by some third person named. The defendant, tenant in tail, would then appear, making no denial of the complainant's allegations, but calling upon one X, alleged to be the man who had conveyed the land to him in tail with warranty, to appear and defend the title which he had warranted. X would then appear and defend the title, but afterwards would default, and thereupon judgment would be given to the complainant that he recover the land in fee simple, and to the tenant in tail that he recover from X lands of equal value in recompense for the lands alleged to have been conveyed by X with warranty to the tenant in tail. X, the vouchee, selected to take this pretended part because judgment proof, was usually the court crier, and came to be called the common vouchee because used so frequently in this capacity. He had never any interest in the property. The judgment against him for an equal amount of land in favor of the tenant in tail and the heirs of his body was regarded as sufficient recompense for the loss of the entail by such heirs; so that the recovery suffered by the tenant' in tail was binding as against them, the complainant taking by virtue of the judgment an estate in fee simple which cut off the entail in favor of the heirs of the body of the tenant in tail, and also the reversion of the original donor, it having been judicially determined that the complainant's title in fee simple was superior to the title of the tenant and his donor. The complainant would then convey the land in fee to the tenant in tail, or convey to another at the tenant's direction, or pay the tenant the purchase-price agreed upon in case an actual sale to him was intended." 4 Thompson on Real Property § 1866, p. 486.
[2] Brewer v. State, 140 Tex.Cr.R. 9, 143 S.W.2d 599 (1940) (Intoxicated automobile owner who turned car over to intoxicated companion and watched the companion make numerous reckless moves before fatal collision is guilty of murder); People v. Gonzales, 40 III.2d 233, 239 N.E.2d 783 (1968) (Firing shotgun into group of men implies criminal malice); Commonwealth v. Malone, 354 Pa. 180, 47 A.2d 445 (1946) (Playing "Russian Poker" is reckless conduct indicating malice); People v. Jernatowski, 238 N.Y. 188, 144 N.E. 497 (1924) (Firing shots into inhabited house evidences malice).
[3] The workmen's compensation scheme is based on personal injury "by accident." Jordan v. State Workmen's Compensation Comm'r., 156 W.Va. 159, 191 S.E.2d 497 (1972); therefore, while this standard seems very strict it must be remembered that it's not the depravity of the employer's conduct that is being tested, but the narrow issue of the intentional versus the accidental quality of the precise injury.
[1] W.Va.Code, 23-2-6a:
"The immunity from liability set out in the preceding section [§ 23-2-6] shall extend to every officer, manager, agent, representative or employee of such employer when he is acting in furtherance of the employer's business and does not inflict an injury with deliberate intention."
W.Va.Code, 23-4-2, reads in material part:
"If injury or death result to any employee from the deliberate intention of his employer to produce such injury or death, the employee, the widow, widower, child or dependent of the employee shall have the privilege to take under this chapter, and shall also have cause of action against the employer, as if this chapter had not been enacted, for any excess of damages over the amount received or receivable under this chapter."
[2] The applicable portion of W.Va.Code, 23-2-6, is:
"Any employer subject to this chapter who shall subscribe and pay into the workmen's compensation fund ... shall not be liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring, after so subscribing . . ."
[3] I consider the term "intention" to be substantially synonymous to "intent." The American Heritage Dictionary of the English Language 682-83 (1973), summarizes:
"Intention signifies a course of action that one proposes to follow. Intent, often a legal term, more strongly implies a fixed course pursued deliberately, ..."
[4] In criminal law where "intent" receives the greatest attention, it was not until Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), that serious examination began to be made on the validity of factual presumptions dealing with intent as they opposed the presumption of innocence. See also State v. Myers, W.Va., 245 S.E.2d 631 (1978) (No. 13896); State v. Starkey, W.Va., 244 S.E.2d 219 (1978); State ex rel. Cogar v. Kidd, W.Va., 234 S.E.2d 899 (1977); State v. Pendry, W.Va., 227 S.E.2d 210 (1976); Pinkerton v. Farr, W.Va., 220 S.E.2d 682 (1975).
[5] Justice Holmes discusses the question of intent in both the criminal and intentional tort fields in O. W. Holmes, The Common Law (1881). He traces the historical precedents and arrives at a parallel conclusion: "The test of criminality in such cases is the degree of danger shown by experience to attend the act under the circumstances," Id. at 75, and as to intentional wrongs: "In general this question will be determined by considering the degree of danger attending the act or conduct under the known circumstances." Id. at 162. W. LaFave & A. Scott, Criminal Law §§ 28, 30 (1972), extensively discuss the concept of intent from a criminal and civil standpoint. In summarizing as to the former, they state: "Intent has traditionally been defined to include knowledge, and thus it is usually said that one intends certain consequences when he desires that his acts cause those consequences or knows that those consequences are substantially certain to result from his acts." Id. at 195-96. In settling the concept of "recklessness" they state: "Something more is usually required for criminal liability, either (1) a greater risk of harm, (2) subjective awareness of the risk by the defendant, or (3) both. The word `recklessness' is most often used to describe the third situation,..." Id. at 208.
[6] W. Prosser, Torts 184 (4th ed. 1971), discusses the differences between criminal intent and the intent necessary for an intentional tort, stating: "Lying between intent to do harm, which as we have seen includes proceeding with the knowledge that the harm is substantially certain to occur, and the mere unreasonable risk of harm to another involved in ordinary negligence, there is a penumbra of what has been called `quasi intent.' To this area the words `wilful,' `wanton' or `reckless' are customarily applied; and sometimes in a single sentence, all three."
[7] Despite the claimed uniqueness of the "tonal" dissent, the writer apparently has missed hearing certain atonalities to his own opinions. See, e. g., Rosier, Adm. v. Garron, Inc., 156 W.Va. 861, 199 S.E.2d 50 (1973) (Justices Berry, Caplan, Haden and Sprouse concurring); Jones v. Laird Foundation, Inc., 156 W.Va. 479, 195 S.E.2d 821 (1973) (Justices Berry, Caplan, Haden and Sprouse concurring). I do not sense that the dissent takes issue with the majority's test since he applies it to find Mandolidis as having "legitimate grounds for recovery." This conclusion is based on the dissenter's statement, "These facts, if proven, demonstrate more than even gross negligence; they demonstrate a wilful, wanton and reckless dis regard for human safety." [Dissent at 922]
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FILED
NOT FOR PUBLICATION JUN 03 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANASTACIO GUEVARA-GUZMAN, No. 08-71675
Petitioner, Agency No. A078-923-958
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 24, 2011 **
Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.
Anastacio Guevara-Guzman, a native and citizen of El Salvador, petitions
pro se for review of the Board of Immigration Appeals’ order dismissing his appeal
from an immigration judge’s decision denying his application for asylum,
withholding of removal, and protection under the Convention Against Torture
*
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).
(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except
to the extent that deference is owed to the BIA’s determination of the governing
statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004).
We review factual findings for substantial evidence. Barrios v. Holder, 581 F.3d
849, 854 (9th Cir. 2009). We dismiss in part and deny in part the petition for
review.
The record does not compel the conclusion that Guevara-Guzman
established changed or extraordinary circumstances sufficient to excuse the delay
in filing his asylum application. See 8 C.F.R. § 1208.4(a)(4), (5). Accordingly, we
deny the petition as to Guevara-Guzman’s asylum claim.
Substantial evidence supports the agency’s denial of Guevara-Guzman’s
withholding of removal claim because he failed to establish gang members have
harmed him or will harm him on account of a protected ground. See Barrios, 581
F.3d at 856 (evidence supported conclusion that gang victimized the petitioner for
economic and personal reasons rather than on account of a protected ground); see
also Ochave v. INS, 254 F.3d 859, 865 (9th Cir. 2001) (“Asylum generally is not
available to victims of civil strife, unless they are singled out on account of a
protected ground.”). We lack jurisdiction to consider Guevara-Guzman’s
2 08-71675
contentions based on being a member of a class of “small merchants” or “small
businessmen” and his contentions based on imputed political opinion because he
did not raise them to the agency. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th
Cir. 2004). Accordingly, we deny the petition as to Guevara-Guzman’s
withholding of removal claim.
Finally, Guevara-Guzman fails to raise any substantive challenge to the
denial of his CAT claim. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th
Cir. 1996) (issues not addressed in the argument portion of a brief are deemed
waived).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
3 08-71675
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 06 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MICHAEL SAAVEDRA, No. 09-17775
Plaintiff - Appellant, D.C. No. 3:08-cv-02180-CRB
v.
MEMORANDUM*
L. E. SCRIBNER, Warden; D. TRAVERS;
ANTHONY HEDGPETH; P.
MANDEVILLE; J. CELAYA; J.
MCCALL; R. PARIN,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted May 14, 2012
San Francisco, California
Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.
Plaintiff Michael Saavedra, an inmate at Salinas Valley State Prison, sued
various prison officials for alleged due process violations arising out of his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
placement and retention in administrative segregation and the disciplinary
proceedings that followed. The district court granted summary judgment to
Defendants. It held that the notice given to Saavedra for his placement in
administrative segregation was constitutionally deficient, but that Defendants were
entitled to qualified immunity. We affirm.
We review “questions of our own jurisdiction de novo.” Hunt v. Imperial
Merchant Servs., Inc., 560 F.3d 1137, 1140 (9th Cir. 2009). We review a decision
to grant summary judgment on the basis of qualified immunity de novo. See
Bingham v. City of Manhattan Beach, 341 F.3d 939, 945 (9th Cir. 2003). The
doctrine of qualified immunity is a two-part test. “First, a court must decide
whether the facts that a plaintiff has . . . shown . . . make out a violation of a
constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). “Second . . .
the court must decide whether the right at issue was ‘clearly established’ at the
time of defendant’s alleged misconduct.” Id. For a right to be clearly established,
the unlawfulness of official action “must be apparent” “in the light of pre-existing
law.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks and
citation omitted).
1. Rooker-Feldman Doctrine. As a preliminary matter, Defendants
contend that the Rooker-Feldman doctrine bars jurisdiction over this case. The
2
Rooker-Feldman doctrine bars federal court jurisdiction where a federal plaintiff is
“complaining of injuries caused by state-court judgments” and is “inviting district
court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 284 (2005). The Rooker-Feldman doctrine does not
bar this action on the basis of the state court’s denial of Saavedra’s habeas petition
because Saavedra complains of due process injuries caused by Defendants’
conduct, not injuries caused by a state court judgment.
2. Due Process Violations. For placement in administrative segregation,
an inmate must “receive some notice of the charges against him,” Hewitt v. Helms,
459 U.S. 460, 476 (1983) (emphasis added), or “notice of the factual basis leading
to consideration” for confinement, Wilkinson v. Austin, 545 U.S. 209, 225-26
(2005). The notice must be delivered “within a reasonable time following an
inmate’s transfer” in order to be effective in helping the inmate prepare a defense
at his hearing. See Hewitt, 459 U.S. at 476 n.8; Toussaint v. McCarthy, 801 F.2d
1080, 1100 & n.20 (9th Cir. 1986) (“Prison officials must hold an informal
nonadversary proceeding within a reasonable time after the prisoner is
segregated.”).
The notice delivered to Saavedra on April 15, 2004, the day of his
segregation, stated that Saavedra was “deemed a threat to the safety and security of
3
the institution, it’s [sic] staff, and inmates” based on “confidential information.”
Defendants knew that Saavedra was being investigated for overfamiliarity with
staff, yet failed to notify Saavedra of that fact. We agree with the district court’s
holding that this April 15 notice was constitutionally insufficient under Hewitt.
Nearly two months after his segregation, at a hearing on June 10, Defendants
gave Saavedra a CDC 1030 form notifying him that his placement in
administrative segregation was because of a still-ongoing investigation into the
charge for overfamiliarity with staff. We hold that a two-month delay between
placement in administrative segregation and the June 10 notice of the charges was
unreasonable in violation of due process. See Hewitt, 459 U.S. at 476 n.8;
Toussaint, 801 F.2d at 1100 & n.20.
Defendants’ contention that Saavedra lacks a protectable liberty interest was
not raised in the district court. Accordingly, they have waived this issue. See
Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th Cir. 2010)
(finding waiver on appeal of question of protectable liberty interest where
defendants failed to raise it in the district court).
3. Qualified Immunity. We hold that qualified immunity protects
Defendants from liability for the due process violations described above. We also
hold that qualified immunity protects Defendants from liability for Saavedra’s
4
other notice-based due process claims, but need not decide whether the facts
establish a violation of his constitutional rights. See Pearson, 555 U.S. at 236
(holding that a court may decide the question of qualified immunity without
deciding the underlying constitutional question).
We begin with the question of qualified immunity for the constitutional
violation arising out of the deficient notice on April 15, and the failure to effect
timely and sufficient notice prior to the June 10 hearing. Because our cases do not
give adequate guidance both on the level of specificity required in a Hewitt notice
and on ensuring timely delivery of a Hewitt notice, there is qualified immunity for
the time period from April 15 to June 10.
Assuming without deciding that the June 10 notice of the charges was
constitutionally deficient, we conclude that Defendants are entitled to qualified
immunity for the June 10 notice. From a reading of our cases and the Supreme
Court’s, it would not be apparent to a prison official in 2004 that a Hewitt notice
requires more than the notice provided.
Defendants are also entitled to qualified immunity for any constitutional
violations arising out of the notice delivered to Saavedra for his subsequent
disciplinary proceedings that resulted in loss of good time. That notice disclosed
the charge and some factual basis for the charge. It would not be apparent to a
5
prison official that he needed to disclose more than this information in a notice to
initiate disciplinary proceedings, especially where a portion of the evidence used to
support the disciplinary action was legitimately confidential. See Zimmerlee v.
Keeney, 831 F.2d 183, 188 (9th Cir. 1987) (“Wolff [v. McDonnell, 418 U.S. 539,
563-66 (1974)] provides little guidance as to the specificity of notice necessary to
satisfy due process.”); McCollum v. Miller, 695 F.2d 1044, 1048 (7th Cir. 1982)
(explaining that more notice is not necessary where disclosure of evidence may
impose significant costs on the prison’s investigation into, and prosecution of,
misconduct).
4. “Some Evidence” Justified Saavedra’s Placement in Segregation.
Assuming the “some evidence” standard applies to the initial placement in
administrative segregation, compare Toussaint, 801 F.2d at 1104 (requiring “some
evidence”), with Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987) (not requiring
“some evidence”), the evidence Defendants used to place Saavedra in
administrative segregation satisfied the “some evidence” standard.
AFFIRMED.
6
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-04-00124-CR
______________________________
SHAWN MARCUS CUMMINGS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 30959-B
Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Carter
O P I N I O N
After pleading guilty without the benefit of a negotiated plea agreement, the trial court found
Shawn Marcus Cummings guilty of stealing over $20,000.00 worth of compact disks and other
merchandise from the Lifeway Christian Store in Longview, Texas, and the court sentenced
Cummings to seven years' imprisonment. Cummings now appeals the trial court's judgment, arguing
that the trial court erred in failing to admonish Cummings concerning deferred adjudication
community supervision and thereby precluded consideration of all available sentencing options. We
affirm.
I. Factual and Procedural Background
On May 21, 2004, Cummings waived a jury trial and pled guilty to the offense of theft of
property valued at greater than $20,000.00 but less than $100,000.00. See Tex. Pen. Code Ann.
§ 31.03 (Vernon Supp. 2004–2005). That offense is a third-degree felony. See Tex. Pen. Code
Ann. § 31.03(e)(5). The punishment range for a third-degree felony is imprisonment for not less
than two years nor more than ten years. Tex. Pen. Code Ann. § 12.34 (Vernon 2003). The
applicable punishment also includes a fine of up to $10,000.00. Id.
In connection with his guilty plea, Cummings signed several documents, including an
application for probation
and a series of written admonishments regarding his guilty plea. The
admonishments included an explanation that, by pleading guilty, Cummings would be waiving his
right for ten days' trial preparation time, waiving his right to a reading of the indictment, and waiving
his right to confront and cross-examine the State's witnesses. The group of documents signed by
Cummings also include a stipulation of evidence that appears to track the indictment. Among these
documents, however, there is no written admonishment concerning the possibility of the trial court
deferring a finding of guilt and placing Cummings on community supervision. See Tex. Code Crim.
Proc. Ann. art. 42.12, § 5 (Vernon Supp. 2004–2005).
Before accepting Cummings' guilty plea, the trial court orally reviewed its standard
admonishments concerning the guilty plea by advising Cummings of the specific charge, and
determining that he understood the indictment. The court then further advised Cummings:
THE COURT: Are you telling me that you fully understand, you fully
comprehend the exact nature of the accusation brought against you by the
indictment?
[Cummings]: Yes, I do, your Honor.
THE COURT: How do you plead to this indictment?
[Cummings]: I'm pleading guilty, your Honor.
THE COURT: Upon your plea of guilty I must find you guilty. I cannot find
you not guilty if you plead guilty; do you understand that?
[Cummings]: Yes, I do, your Honor.
THE COURT: Once I make a finding of guilt, the law requires that I assess
your punishment to confinement in the Institutional Division of the Texas
Department of Criminal Justice, that's the state penitentiary, for a period of not less
than two years, no more than ten years.
In addition to any period of confinement, I may impose a fine up to $10,000.
You understand that is the range of punishment fixed by law for this type of offense?
[Cummings]: Yes, I do.
. . . .
THE COURT: Okay. You have the right to file an application for a probated
sentence. I note that you've done that. I tell you that you having filed that
application, the law requires, and I will, in fact, consider it, but I'm under no duty, no
obligation, no commitment to anyone to grant probation in this matter; do you
understand that?
[Cummings]: Yes, I do, your Honor.
THE COURT: If probation is granted, I get to set its terms and conditions,
including its length, which may be as little as two years, may be as many as ten years.
Also, if I grant probation, and I don't know whether I am or not, I could
impose a special condition that you serve what we call some up-front time in the
county jail, up to 90 days -- well, up to 180 days in the county jail.
Do you understand the Court sets the terms and conditions of probation if
probation is granted?
[Cummings]: Yes, I do, your Honor.
The court then explained the procedure in the event Cummings was charged with a violation of
community supervision conditions, accepted a judicial confession of guilt, and determined that the
plea was freely and voluntarily entered. Cummings reiterated his plea of guilty.
II. Failure To Consider the Full Range of Punishment
In his only point of error, Cummings contends that the trial court erred by failing to admonish
him regarding the possibility of receiving deferred adjudication and that this omission ostensibly
caused the trial court to fail to consider the full range of punishment. Cummings then contends he
suffered harm because the trial court found him guilty without first giving both the State and
Cummings the opportunity to recommend deferring a finding of guilt.
Article 26.13 of the Texas Code of Criminal Procedure requires the trial court to advise a
defendant of the range of punishment attached to the offense, but does not specifically require the
court to admonish the defendant concerning the possibility of deferred adjudication. Tex. Code
Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2004–2005). An admonishment concerning the possible
consequences of deferred adjudication is required only "[a]fter placing the defendant on community
supervision . . . ." Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a). Deferred adjudication is a form
of community supervision,
and it is not necessary for a trial court to explain all possible forms or
conditions or community supervision in order to properly admonish a defendant in accordance with
Article 26.13.
Here, the trial court clearly admonished Cummings as to the range of punishment,
acknowledged Cummings had filed an application for community supervision, stated it would
consider the application, informed Cummings that, if community supervision was granted, then the
court would set the conditions, and informed Cummings of the consequences of violation of
community supervision conditions. However, in this case, Cummings' complaint is that the trial
court effectively refused to consider deferred adjudication probation, as evidenced by its comments.
As can be read from the text of the trial court's admonishments, the trial court did not discuss
the possibility of deferring a finding of guilt and placing Cummings on community supervision.
Even if that omission was erroneous, Cummings did not object nor raise the issue in his motion for
new trial, which was overruled by operation of law seventy-five days after the trial court imposed
Cummings' sentence. See Tex. R. App. P. 21.8(a), (c).
As a prerequisite to presenting a complaint for appellate review, the record must
show that:
(1)the complaint was made to the trial court by a timely request,
objection, or motion that:
(A)stated the grounds for the ruling that the complaining
party sought from the trial court with sufficient specificity to make
the trial court aware of the complaint, unless the specific grounds
were apparent from the context; and
(B)complied with the requirements of the Texas Rules of
Civil or Criminal Evidence or the Texas Rules of Civil or Appellate
Procedure; and
(2)the trial court:
(A)ruled on the request, objection, or motion, either
expressly or implicitly; or
(B)refused to rule on the request, objection or motion, and
the complaining party objected to the refusal.
Tex. R. App. P. 33.1(a).
In Teixeira v. State, 89 S.W.3d 190, 192 (Tex. App.—Texarkana 2002, pet. ref'd),
this Court
explained that a trial court "denies due process and due course of law if it arbitrarily refuses to
consider the entire range of punishment for an offense or refuses to consider the evidence and
imposes a predetermined punishment." (citing Granados v. State, 85 S.W.3d 217 (Tex. Crim. App.
2002); Johnson v. State, 982 S.W.2d 403, 405 (Tex. Crim. App. 1998)). However, in Teixeira, we
also emphasized for one to preserve a complaint for appeal that the trial court failed to consider the
full range of punishment, the error, if any, must be raised to the trial court. Id. In Teixeira, the
appellant failed to raise the alleged error at the trial court level and thereby waived the error for
purposes of appellate review. Similarly, in this case, Cummings did not object during the trial court's
admonishment colloquy with Cummings, nor did he object at the time the trial court stated, "Based
upon your plea of guilty, and based upon the evidence offered in connection with that plea and
beyond a reasonable doubt, I find you [Cummings] guilty of theft of property of the value of $20,000
or more but less than $100,000 as charged in the indictment." And, again, when the trial court asked
whether there was "[a]ny reason in law [why] this sentence should not now be formally pronounced,"
Cummings' counsel responded, "Not at this time, your Honor." The objection raised on appeal was
not, therefore, raised before the trial court and was thereby waived. Cf. Teixeira, 89 S.W.3d at 192;
Washington v. State, 71 S.W.3d 498, 499 (Tex. App.—Tyler 2002, no pet.).
Moreover, as is clear from the plea colloquy between Cummings and the trial court, the trial
court did give consideration to the possibility of granting community supervision in this case.
Ultimately, though, the trial court decided that the facts of the case did not merit such leniency.
After discussing the facts presented in this case, the court stated, "But I'm not granting probation
under these facts and for the person that stands before this bench." Accordingly, even had
Cummings' point of error been preserved for appellate review, the record before us refutes the
contention that the trial court arbitrarily failed to consider the full range of punishment. Cf. Davis
v. State, 125 S.W.3d 734, 736 (Tex. App.—Texarkana 2003, no pet.) (trial court acknowledged on
record it would consider accused's application for community supervision).
For the foregoing reasons, we affirm the trial court's judgment.
Jack Carter
Justice
Date Submitted: February 22, 2005
Date Decided: March 23, 2005
Publish
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133 F.3d 1443
76 Fair Empl.Prac.Cas. (BNA) 1, 72 Empl. Prac.Dec. P 45,214,11 Fla. L. Weekly C1017Anais A. BADIA, Plaintiff-Appellee,v.CITY OF MIAMI, a municipal corporation, Defendant,Wally Lee, individually and as Director of Department ofPublic Works, Defendant-Appellant.
No. 97-4270Non-Argument Calendar.
United States Court of Appeals,Eleventh Circuit.
Jan. 30, 1998.
Albertine B. Smith, Theresa L. Girten, Miami, FL, for Defendant-Appellant.
Allan Gordon Cohen, Ralph O. Anderson, Hicks & Anderson, Miami, FL, for Plaintiff-Appellee.
Before TJOFLAT and COX, Circuit Judges, and RONEY, Senior Circuit Judge.
PER CURIAM:
1
In her amended complaint plaintiff Anais A. Badia ("Badia"), a former City of Miami Department of Public Works employee, claims that defendants the City of Miami and Wally Lee ("Lee"), former Director of the Department of Public Works, discriminated against her on the basis of gender, race, and national origin, in violation of 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. §§ 2000e to 2000e-17. Badia also asserted a 42 U.S.C. § 1983 claim that defendants violated her First Amendment free speech rights by terminating her employment and severance pay benefits in retaliation for filing an EEOC charge of discrimination and commencing this action. Defendant Lee, sued individually, moved for summary judgment on the ground of qualified immunity. The district court denied the motion. Lee appeals. Because qualified immunity shields Lee from Badia's § 1983 First Amendment claim but not from Badia's discrimination claims, we affirm in part and reverse in part.
2
Although the district court's decision regarding the merits of Badia's claims is not final, the court's denial of summary judgment on the basis of qualified immunity is an appealable interlocutory order. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985); Riley v. Wainwright, 810 F.2d 1006, 1007 (11th Cir.1986). We accept as true all facts the district court assumed when it denied summary judgment on qualified immunity grounds. See Walker v. Schwalbe, 112 F.3d 1127, 1131 (11th Cir.1997), petition for cert. filed, 66 U.S.L.W. 3325 (U.S. Oct. 29, 1997) (No. 97-740); Cooper v. Smith, 89 F.3d 761, 762 (11th Cir.1996).
3
In order to defeat Lee's claimed entitlement to qualified immunity, Badia was required to proffer evidence which, viewed in the light most favorable to her, demonstrates that Lee violated clearly established statutory or constitutional rights of which a reasonable government official would have been aware. See Tindal v. Montgomery County Comm'n, 32 F.3d 1535, 1539 (11th Cir.1994); Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1322 (11th Cir.1989). Construing the evidence in the light most favorable to Badia, the district court concluded that a genuine issue exists as to whether discrimination motivated Lee's treatment of Badia and the elimination of Badia's position in 1993. Such discrimination would violate clearly established rights of which a reasonable government official would have known. See Nicholson v. Georgia Dep't of Human Resources, 918 F.2d 145, 148 (11th Cir.1990). Therefore, qualified immunity does not entitle Lee to summary judgment on Badia's discrimination claims.
4
Badia's First Amendment claim turns on whether the "speech" was a matter of public concern. If only of purely personal concern, the speech is not protected by the First Amendment. We look to the "content, form, and context ...," Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983), of Badia's speech to assess whether it "may be fairly characterized as constituting speech on a matter of public concern." Tindal, 32 F.3d at 1539 (citation and internal quotation marks omitted); see also id. (delineating four-part test to determine whether an employer's action constitutes illicit retaliation for protected speech); Connick, 461 U.S. at 148 n. 7, 103 S.Ct. at 1691 n. 7 ("The inquiry into the protected status of speech is one of law, not fact."). If it is unclear whether Badia's complaints were of the kind held to involve a matter of public concern, then Lee's alleged actions did not violate clearly established First Amendment rights and he is entitled to qualified immunity. See Tindal, 32 F.3d at 1539 (citing Connick, 461 U.S. at 147, 103 S.Ct. at 1690).
5
In her EEOC charge and original federal complaint, Badia discussed only harm that she personally suffered and sought damages only to remedy that personal harm. Generally, such speech which exposes personally suffered discrimination for personal benefit is not entitled to First Amendment protection. See Tindal, 32 F.3d at 1539 (citing Morgan v. Ford, 6 F.3d 750, 754-55 (11th Cir.1993), cert. denied, 512 U.S. 1221, 114 S.Ct. 2708, 129 L.Ed.2d 836 (1994)).
6
In an attempt to distinguish her speech from private grievances seeking redress for personal harm, Badia contends that her complaints deserve First Amendment protection because she filed a claim with the EEOC and a suit in federal court. Badia notes that this Court has held that an employee's federal court testimony in support of another plaintiff co-worker's discrimination suit constitutes speech on a matter of public concern and merits First Amendment protection. See Tindal, 32 F.3d at 1539-40. This Court, however, has not decided whether EEOC discrimination charges and federal court discrimination complaints which seek redress only for a plaintiff's personal injuries constitute "speech on a matter of public concern" by the plaintiff solely by virtue of the public fora in which the complaints are presented. See Mott v. Ledbetter, 806 F.Supp. 991, 992 (N.D.Ga.1992) ("Neither the Supreme Court nor the Eleventh Circuit Court of Appeals ha[s] directly addressed the extent to which a formal employment discrimination complaint constitutes speech on a matter of public concern.").
7
There is a split of authority among the circuit courts of appeals which have decided this issue. Compare Greenwood v. Ross, 778 F.2d 448, 457 (8th Cir.1985) ("Appellant's filing of an EEOC charge and a civil rights lawsuit are activities protected by the first amendment."), with Rice v. Ohio Dep't of Transp., 887 F.2d 716, 720-21 (6th Cir.1989) (because it related only to personal employment dispute, plaintiff's discrimination charge was not entitled to First Amendment protection), vacated on other grounds, 497 U.S. 1001, 110 S.Ct. 3232, 111 L.Ed.2d 744 (1990), and Yatvin v. Madison Metro. Sch. Dist., 840 F.2d 412, 420 (7th Cir.1988). (The Eighth Circuit's opinion in "Greenwood is ... inconsistent with our decision ...; we reject its per se rule."). See also Mott v. Ledbetter, 806 F.Supp. 991, 992 (N.D.Ga.1992) ("[T]his Court ... conclude[s] that the law in this circuit does not favor a per se rule establishing any employment discrimination complaint as protected speech.... [S]uch a complaint is protected speech only when the employee is speaking on a matter of legitimate public concern rather than merely complaining of a personal employment dispute.").
8
Therefore, it is not clearly established in this Circuit that an EEOC charge and a federal court complaint involving an otherwise purely personal matter are speech on a matter of public concern that are entitled to First Amendment protection. Lee's alleged actions did not violate clearly established First Amendment rights, and qualified immunity protects Lee from Badia's 42 U.S.C. § 1983 First Amendment claim.
9
Thus, we reverse in part and affirm in part. Defendant Wally Lee, in his individual capacity, is entitled to summary judgment on the basis of qualified immunity as to plaintiff Badia's 42 U.S.C. § 1983 First Amendment claim. As to all other claims, we affirm the denial of summary judgment on the basis of qualified immunity. This appeal does not involve any other ground for summary judgment.
10
AFFIRMED IN PART and REVERSED IN PART.
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32 Md. App. 705 (1976)
363 A.2d 523
ANTHONY GRANDISON A/K/A JAMES WILLIAMS
v.
STATE OF MARYLAND.
No. 1279, September Term, 1975.
Court of Special Appeals of Maryland.
Decided September 17, 1976.
*706 The cause was argued before [**]GILBERT, MENCHINE and MOORE, JJ.
Robert F. Freeze, Assigned Public Defender, for appellant.
Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State's Attorney for Baltimore City, and Roy Breslow, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
MENCHINE, J., delivered the opinion of the Court.
Anthony Grandison, also known as James Williams, was convicted by a jury in the Criminal Court of Baltimore under an indictment charging that he carried a handgun in violation of Article 27, § 36B. He was acquitted on two more serious charges.
Grandison had been indicted under the following six indictments:
Indictment
No. Date of Offense Offense Charged
57500867 November 6, 1974 Assault with intent to murder Samuel
Mason
57500868 November 6, 1974 Robbery of Samuel Mason with a dangerous
and deadly weapon.
57500869 November 18, 1974 Possession of a handgun in violation of
Article 27, § 36B.
57500870 November 18, 1974 Obliterating serial number on handgun.
57500871 November 22, 1974 Attempted escape.
57500872 November 22, 1974 Assault.
Acting pursuant to Maryland Rule 734 the trial judge ordered indictments 57500867, 8 and 9 to be tried together. Grandison's motion for a severance was granted as to indictments 57500870, 1 and 2 pursuant to Rule 735.
*707 At arraignment, Grandison pleaded not guilty to all three indictments but attempted to obtain a jury trial as to indictments 57500867 and 8 and a court trial as to 57500869. The trial judge declined to permit the case to be so divided, requiring the appellant to go forward as to the three joined indictments either with a jury or a non-jury trial as to all. The case then proceeded to trial before a jury. Grandison was acquitted as to indictments 57500867 and 8. He was convicted under indictment 57500869 and sentenced to a term of eighteen months imprisonment.
He thus suggests the questions presented on appeal:
"I. Was the appellant denied a speedy trial?
II. Was the evidence sufficient to sustain the conviction?
III. Should there have been a severance as to indictments?
IV. Should the pretrial motions have been granted?
V. Should the court have granted a motion for mistrial?"
Speedy Trial
Appellant contends that he was denied his Sixth Amendment right to a speedy trial. He was arrested on November 18, 1974. His trial was commenced on July 23, 1975. We reject his contention and find it necessary only to examine that period of delay.
Following appellant's arrest on November 18, 1974, a preliminary hearing was scheduled for December 11, 1974. The hearing was postponed at the request of the accused to permit him to obtain private counsel.
A second hearing, scheduled for January 16, 1975, was postponed at the request of private counsel for the accused.
A third hearing, scheduled for February 7, 1975, was postponed when appellant's private counsel obtained permission to withdraw from the case because he had been informed by a prosecution witness that anonymous *708 telephone calls had been received threatening the latter if he appeared at the next scheduled hearing.
On February 7, 1975, appellant was advised that he could speak to the public defender, but declined to do so because he did not care for representation by the office of the Public Defender.
Private counsel was not thereafter engaged. When it became apparent to assignment authorities of the Supreme Bence of Baltimore City that Grandison had not arranged for private counsel, hearing was scheduled before Judge Shirley B. Jones on May 13, 1975. At that hearing the following colloquy between court and counsel occurred:
"[THE COURT]: When you talk to your lawyer as I indicated, these are matters which you should discuss with him and he will assist you in handling them. They will not be heard today. As a matter of law you will have a lawyer from the Public Defender's office. This gentleman seated at the trial table here is from that office. I'm going to ask him to have the lawyer contact you promptly so you might discuss with him these various motions and he will know the mechanics for getting them set down for a hearing. When he does contact you, you can go over with him these motions that you filed.
* * *
[APPELLANT]: Your Honor, see, I'm serving time. I'm already serving time and that's why I'm saying you haven't given me no definite *709 answer when I'll see the Public Defender.
[THE COURT]: I'm sorry I cannot give you that answer. I am simply directing the Public Defender representative here to have the lawyer come see you as soon as the appointment is made. I cannot tell you when he will be here.
[APPELLANT]: Your Honor, You don't have the authority to appoint me an attorney other than the Public Defender because I don't have no confidence in the Public Defender at all.
[THE COURT]: I have no authority to appoint any lawyer other than the Public Defender's office.[1]
[APPELLANT]: I don't want a Public Defender.
[THE COURT]: That's your choice to make. If you decide or decline their services, you have a right to do that. But he will be available to help you.
*710 [APPELLANT]: In other words you're saying I can't refuse to be represented by a Public Defender.
[THE COURT]: You can refuse his services, yes. You have the right to do that."
Notwithstanding the continued expression of dissatisfaction by the appellant, counsel was appointed for him under the Public Defender Act. (Article 27A). The appearance of an assistant public defender was entered for the appellant on that very date.
Thereafter, on June 5, 1975, an experienced panel attorney filed his appearance for the appellant. The trial, requiring eight trial days, began on July 23, 1975.
If any part of the delay is attributable to the State it is miniscule. We agree fully with the trial judge that under the circumstances shown by this record the delay does not reach constitutional dimensions. Accordingly, "there is no necessity for inquiry into the other factors that go into the balance." Barker v. Wingo, 407 U.S. 514, 530, 33 L.Ed.2d 101, 117, 92 S.Ct. 2182, 2192 (1972). There is no evidence that the State shirked "its constitutional duty to make a diligent, good faith effort to bring [Grandison] to trial." Moore v. Arizona, 414 U.S. 25, 26, 38 L.Ed.2d 185, 186, 94 S.Ct. 188, 190 (1973).
Sufficiency of the Evidence.
The contention that the evidence was not legally sufficient is frivolous. Two police officers observed that the appellant was carrying a handgun and removed it from his person at the time of a lawful arrest. Seizure and use of the weapon as evidence was lawful.
Severance
Indictments 57500867 and 8 (as to which the appellant was acquitted) charged respectively (a) assault with intent to murder and (b) the robbery with a dangerous weapon, of one Samuel Mason.
*711 At the severance hearing the State made the following proffer:
"MR. BRESLAW: The gun that was recovered on the 18th was missing a portion which was found at Mr. Mason's office on the 6th by the officers and they matched up to be the same gun, a portion of the same gun found on the 6th, matching the portion that was remaining portion found on the 18th and the State feels those four[[2]] charges should be tried together."
At the conclusion of the appellant's motion for severance, the trial judge said:
THE COURT: I'll grant the motion to sever to the following extent, i.e., that the cases 57500867, 57500868, and 57500869 will be tried jointly and separately from the remaining indictments in the case. The remaining indictments which appear on the docket will be treated as not called to trial and will be so entered at the time of the verdict. The reason from colloquy with counsel all of the evidence necessary to prove the case is in 869 would be proffered by the State to be admissible at the time of 867 and 868, the orderly and efficient administration of justice demands that the indictments be tried at the same *712 time and there's no risk of any prejudice to the Defendant. If it turns out that the State's proffer is totally incorrect and cannot be proved, that's a matter for disposition at the time of the trial. Certainly on the proffers made, the Court has no alternative but to permit those three cases to be tried together."
At trial the proffer by the State was supported fully by evidence.
In Sutton v. State, 25 Md. App. 309, 334 A.2d 126 (1975), we said at 313, [128-29]:
"One of the factors to be considered in the trial judge's determination of whether to grant a severance is the saving of the time and the expense that unnecessary separate trials would entail. Mason v. State, 18 Md. App. 130, 305 A.2d 492 (1973); Peterson v. State, 15 Md. App. 478, 292 A.2d 714 (1972). Moreover, the decision as to whether to order separate trials is vested in the sound discretion of the trial judge. Maloney v. State, 17 Md. App. 609, 304 A.2d 260 (1973). If it appears that the facts to be proved in one case are substantially the same as those in the other or that they are so closely related that the evidence necessary to show one crime is intertwined with the other, there is no reason to order a severance unless the joinder is prejudicial."
The trial court's discretion clearly was properly exercised in the subject case.
In a second string to his severance bow, appellant attempted to accomplish, by election for a court trial as to indictment 57500869, the severance he was unable to achieve upon his motion for severance. The trial judge rejected his effort thus to divide the trial.
*713 Maryland Rule 741 reads as follows:
"Jury Trial Election.
An accused may elect to be tried by jury or by the court. Such election shall be made by the accused in open court when first called upon to plead after he is represented by counsel of record or has waived counsel. If an accused elects to be tried by the court, the State may not elect a jury trial. The court may, in its discretion and for good cause shown, at any time prior to the trial permit the accused to change his election."
Standing alone, Rule 741 lends a surface appearance of validity to appellant's contention that he was denied a right conferred by rule. But Rule 741 does not stand alone.
In Baltimore Transit Co. v. Mezzanotti, 227 Md. 8, 174 A.2d 768 (1961) it was said at 19-20 [774]:
"... the wording of Rule 819 is general in its terms and does not, itself, place any limitation on the terms `any previous interlocutory order'; but it is equally true that statutes relating to the same subject matter will be construed, when possible, so as to harmonize with each other, and not produce unreasonable or foolish results, and the same rules of construction, we think, apply to the Maryland Rules. If the construction of Rule 819, attributed to it by the appellant, be the true one, it is difficult to discover the purpose and usefulness of Rule 422 (naming sanctions that the trial courts may direct in order to force recalcitrant parties and their officers and agents to answer designated questions, etc.), which, in effect would be rendered nugatory, if a party can flout the order of court directing him to answer certain questions and await the outcome of the appeal on a final judgment, by simply posting a bond. Moreover, such construction would take away from the trial courts their time-honored power and authority to control, and to direct, the *714 course of the proceedings in their respective courts, and place the same in the hands of the litigants. Such dire and drastic results were not contemplated in the adoption of Rule 819."
Similarly, it was said in Johnson v. State, 274 Md. 29, 41, 333 A.2d 37, 43 (1975):
"The meaning of a Rule `does not depend upon the niceties of definition but upon the reasonable intendment of the language used in the light of the purpose to be effectuated,' Brown v. State, 237 Md. 492, 504, 207 A.2d 103, 111 (1965), citing Shub v. Simpson, 196 Md. 177, 191, 76 A.2d 332, 337-38 (1950), and Darnall v. Connor, 161 Md. 210, 214-16, 155 A. 894, 896-97 (1931); and the Maryland Rules, like statutes, when dealing with the same subject matter will be construed so as to harmonize with each other and not produce an unreasonable result."
Rule 741 must be read and considered along with Rules 716 and 734. Rule 716 reads in appropriate part as follows:
"Joinder.
a. Offenses.
Two or more offenses may be charged in the same indictment in a separate count for each offense."
In Wanzer v. State, 202 Md. 601, 608, 97 A.2d 914, 917 (1953), it was said:
"The defendant cannot demand [severance] as of right where there is no basis for thinking that the joinder of the counts will embarrass him in the trial. Such was the rule at common law and it has been consistently followed in this State."
Rule 734 reads as follows:
"Joint Trial of Indictments.
The court may order two or more indictments to *715 be tried together if the offenses and the defendants, if there be more than one, could have been joined in a single indictment."
In Lewis v. State, 235 Md. 588, 202 A.2d 370 (1964), it was said at 590 [371]:
"Maryland Rule 734 provides that `The court may order two or more indictments to be tried together if the offenses and the defendants, if there be more than one, could have been joined in a single indictment.' The Rule is couched in simple language and its purpose apparent: to save the time and expense of separate trials under the circumstances named in the Rule, if the trial court, in the exercise of its sound discretion deems a joint trial meet and proper."
Of course, joinder may not be prejudicial to the accused. Rule 735 reads as follows:
"Prejudicial Joinder.
If it appears that an accused or the State will be prejudiced by a joinder of offenses or of defendants in an indictment, or by joinder for trial together, the court may order an election or separate trials of counts, grant separate trials of defendants or provide such other relief justice requires. A motion under this Rule may be made only before the jury is sworn, or, where trial by jury is waived, before any evidence is received."
We said in Peterson, Deal & Hunt v. State, 15 Md. App. 478, 495, 292 A.2d 714, 724 (1972):
"Underlying all considerations of the proper exercise of judicial discretion under Maryland Rule 735 as to whether to order separate trials is the fundamental concern of whether `it appears that an accused or the State will be prejudiced by a joinder of offenses or of defendants ... for trial together....'"
*716 The trial courts today are struggling to keep abreast of a seemingly ever growing criminal caseload. The ability of the courts fairly to assure due process of law to all accused of crime would be lessened materially if the salutory joinder provisions of Rules 716 and 734 were susceptible to utter destruction by manipulation of Rule 741 in the manner attempted by this appellant.
We are persuaded and we hold that Rule 741 must be read in conjunction with Rules 716 and 734. When so read, we think that it is apparent that Rule 741 applies to that single trial entity that consists of all joined counts of all joined indictments that have survived attack under Rule 735.
Such an interpretation accords full and complete justice to the accused without production of unreasonable or foolish results. Mezzanotti and Johnson, both supra.
Pretrial Motions
The motion to dismiss the indictments upon the ground that erroneous information had been given to the grand jury was quite properly rejected. Everhart v. State, 274 Md. 459, 486-88, 337 A.2d 100, 116 (1975).
The motion to suppress use of the handgun is without merit. The weapon was seized as an incident to lawful arrest. It was clearly admissible tangible evidence.
The motion seeking disqualification of the trial judge is equally without merit. See Silbert v. State, 12 Md. App. 516, 537, 280 A.2d 55, 67 (1971).
Motions for Mistrial
A state witness on one occasion referred to a garment worn by the appellant as "a prison coat." On a second occasion the same witness declared that a coat worn by the accused "meant something to me." In both instances the trial judge sustained objections by counsel for appellant and ordered the answers stricken. Although denying trial counsel's motion to dismiss, the trial judge did advise trial counsel that he would specifically instruct the jury to ignore the testimony or give a general instruction at the trial's *717 conclusion. Of the two proffered courses by the trial judge, trial counsel elected a general instruction to the jury. It was given.
There was testimony both by the appellant himself and by a representative of the State Work Release Program called by him as a witness, that the appellant was under sentence at the time of the offenses and was participating in the program.
The third motion for mistrial occurred when the prosecutor commented upon the absence of a witness from appellant's place of employment as to his whereabouts on November 6, 1974. The short answer to a contention that this constituted grounds for a mistrial is that he was acquitted of the offense charged on that date.
In Wilhelm v. State, 272 Md. 404, 326 A.2d 707 (1974), it was said at 429 [723]:
"A request for a mistrial in a criminal case is addressed to the sound discretion of the trial court and the exercise of its discretion, in a case involving a question of prejudice which might infringe upon the right of the defendant to a fair trial, is reviewable on appeal to determine whether or not there has been an abuse of that discretion by the trial court in denying the mistrial. Basiliko v. State, 212 Md. 248, 260-61, 129 A.2d 375, 381 (1957). The decision by the trial court in the exercise of its discretion denying a mistrial will not be reversed on appeal unless it is clear that there has been prejudice to the defendant."
We perceive no prejudice to the appellant.
Judgment affirmed.
NOTES
[**] Reporter's Note: Gilbert, J. appointed Chief Judge of the Court of Special Appeals on June 8, 1976.
[1] Article 27A in appropriate part reads as follows:
"§ 4. Duty to provide legal representation.
(a) It shall be the primary duty of the Public Defender to provide legal representation for any indigent defendant, eligible for services under this article. Legal representation may be provided by the Public Defender, or, subject to the supervision of the Public Defender, by his deputy, by district public defenders, by assistant public defenders, or by panel attorneys as hereinafter provided for.
§ 6. Panel attorneys; courts not deprived of authority to appoint counsel in certain situations.
(f) Nothing in this article shall be construed to deprive any court mentioned in § 4 (b)(2) of this article of its authority to appoint an attorney to represent an indigent person where there is a conflict in legal representation in a matter involving multiple defendants and one of the defendants is represented by or through the Office of the Public Defender, or where the Office of the Public Defender declines to provide representation to an indigent person entitled to representation under this article."
There was no such exception here.
[2] The fourth indictment 57500870, charged obliteration of the serial number of the handgun. The trial judge granted severance as to that indictment.
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170 F.3d 183
U.S.v.Cozzens*
NO. 98-40953
United States Court of Appeals,Fifth Circuit.
January 20, 1999
1
Appeal From: E.D.Tex.
2
Dismissed.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34-2
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255 U.S. 102 (1921)
KINNANE, UNITED STATES ATTORNEY FOR THE EASTERN DISTRICT OF MICHIGAN,
v.
DETROIT CREAMERY COMPANY ET AL.
UNITED STATES
v.
SWARTZ.
UNITED STATES
v.
SMITH.
Nos. 376-378.
Supreme Court of United States.
Argued October 19, 20, 1920.
Decided February 28, 1921.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN.
The Solicitor General for appellant in No. 376 and for the United States in Nos. 377 and 378.
Mr. Charles E. Hughes, with whom Mr. William L. Carpenter was on the briefs, for appellees in No. 376 and defendants in error in Nos. 377 and 378.
MR. CHIEF JUSTICE WHITE delivered the opinion of the court.
In the first of the above cases the Creamery Company and others, appellees, filed their bill in the court below *103 against the United States Attorney and the members of the "Federal Fair Price Committee" for an injunction to restrain prosecutions against them for selling milk at alleged unjust and unreasonable rates or charges, in violation of the fourth section of the Lever Act, as reenacted in 1919, on the ground, among others, that the section was repugnant to the Constitution because of its vagueness and because it failed to provide a standard of criminality.
The United States Attorney, after challenging in his answer the right to restrain the performance by him of his official duties, admitted that in its advisory capacity the said price committee had fixed what it had deemed to be a fair price for the sale of milk and that he intended, in the discharge of his official duty, to act upon such advice as the basis for prosecutions where such price was exceeded, and, asserting the constitutionality of the section and the want of merit in the grounds upon which it was assailed, prayed the dismissal of the bill.
A temporary injunction issued and, the case having been submitted on the pleadings without proof, the court, stating that the sole question involved was whether the provision in question of § 4 of the Lever Act was constitutional, decided that it was not, because of its vagueness and uncertainty and of the consequent absence from it of all standard of criminality. The enforcement of said provision was therefore permanently enjoined, and upon this appeal, the sole issue raised by the Government is whether the court erred in holding the provision of the statute in question to be void for repugnancy to the Constitution. That it did not so err, is fully established by the opinion this day announced in the Cohen Grocery Co. Case, No. 324, ante, 81, and therefore it is our duty to affirm.
The two other cases, Nos. 377 and 378, are likewise so controlled. Both were indictments for selling potatoes *104 at prices which were alleged to be unjust and unreasonable in violation of the reenacted fourth section of the Lever Act, and in both cases the indictments were quashed because of the unconstitutionality of the section, upon the grounds stated by the court in the Creamery Case, No. 376, and they are both here at the instance of the Government because of alleged reversible error committed in so doing. It follows, for the reasons just stated and those expounded in the Cohen Grocery Co. Case, that the action below in all three cases must be and the same is hereby
Affirmed.
MR. JUSTICE PITNEY and MR. JUSTICE BRANDEIS concur in the result.
MR. JUSTICE DAY took no part in the consideration or decision of these cases.
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264 Pa. Superior Ct. 274 (1979)
399 A.2d 773
COMMONWEALTH of Pennsylvania
v.
David X. WARREN, Appellant.
Superior Court of Pennsylvania.
Submitted June 12, 1978.
Decided March 16, 1979.
Petition for Allowance of Appeal Denied May 22, 1979.
*276 J. Wesley Oler, Jr., Carlisle, for appellant.
George E. Hoffer, Assistant District Attorney, Carlisle, for Commonwealth, appellee.
Before JACOBS, President Judge and HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ.
SPAETH, Judge:
This is an appeal from an order denying a petition filed under the Post Conviction Hearing Act.[1]
On November 23, 1976, appellant was charged with possession of an instrument of escape an ice pick while incarcerated at Camp Hill on other charges.[2] On January 1, 1977, the lower court appointed C. Roy Weidner, Jr., to represent appellant. On February 1 appellant entered a plea of guilty before the Honorable Sylvia H. RAMBO, and was sentenced to nine to eighteen months in prison to be served after completion of the sentence he was serving at Camp Hill.
On July 12, 1977, appellant filed a pro se petition under the Post Conviction Hearing Act. On the same day the lower court appointed counsel to assist appellant with his petition. On August 19 appellant filed an amended pro se petition. On August 25 a hearing was held before Judge RAMBO. At the beginning of the hearing counsel for appellant and the district attorney stipulated that the petition should be treated as if it were a petition to withdraw the guilty plea. On October 13 Judge RAMBO filed an *277 order denying the petition; in the opinion accompanying the order the judge found that "[appellant] did in fact voluntarily, knowingly and freely enter his plea of guilty." Slip opinion at 4.[3]
Where the record shows that a proper colloquy was conducted before the defendant entered his guilty plea, see Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974), the burden is on the defendant to show that the plea was not intelligent and voluntary, Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968).
Appellant alleges in his petition that his guilty plea was invalid because: he did not receive a six to twelve month *278 sentence as his counsel indicated he would; the plea was partly the product of fear of physical abuse by other prison inmates; and after-discovered evidence showed he had been "set-up".
At the PCHA hearing appellant offered the following testimony in support of his claims. The ice pick was planted in his cell; he was unaware of it until it was found by the guards.[4] Weidner, his trial counsel, met with him for only ten minutes before the day his case was heard. During this conference he told Weidner that he was not guilty but had been "set-up" by other prison inmates because he had agreed to testify regarding a prison fight during which three persons were stabbed, and he gave Weidner the name of one person who had information regarding this "set-up". Also, he indicated to Weidner his desire to have a concurrent sentence, and Wiedner said that a concurrent sentence of six to twelve months was possible. At the end of this conference he agreed to plead guilty. On the day he pleaded guilty Weidner talked with him for only ten minutes, and neither his plea nor the possible sentence was discussed. When he was sentenced to nine to eighteen months he was surprised and asked Weidner to explain what had happened. Weidner told him that the sentence would be corrected within thirty to ninety days. Appellant presented no other evidence.[5]
*279 Weidner testified for the Commonwealth. His testimony contradicted appellant's in many respects. He testified that the conference with appellant lasted approximately one hour. He acknowledged that during the conference appellant mentioned the difficulties with other prison inmates because of his forthcoming testimony regarding the prison fight and gave him the name of one Peter Paul who might have information regarding a "set-up", but he also testified that appellant did not ask him to pursue these matters but instead was concerned that the case be handled as quickly as possible and to this end wished to plead guilty. Weidner also testified that appellant indicated that he hoped to get a concurrent sentence because of the possibility of a furlough during the upcoming Christmas season, but that he told appellant that a concurrent sentence would not be possible and that no plea bargain would be made. Finally, Weidner denied that he told appellant his sentence would be corrected, and testified that after the sentencing he only spoke with appellant regarding his right of appeal.
The Commonwealth also introduced a letter appellant wrote Weidner after their conference. Record Document 24, N.T. PCHA Hearing, Commonwealth Exhibit # 1.[6] The letter corroborated Weidner's testimony that the most important factor to appellant was expediting sentencing.[7]
*280 Judge RAMBO accepted Weidner's testimony, and concluded that appellant had not met his burden of proving that his plea was not intelligent and voluntary. Commonwealth ex rel. West v. Rundle, supra. In her opinion the judge stated:
The testimony presented, the letter from [appellant] to Mr. Weidner, and the colloquy satisfy this court that [appellant] did in fact voluntarily, knowingly and freely enter his plea of guilty. The court is also satisfied that any fear which [appellant] had of his fellow inmates precipitated his having possession of the weapon involved in the charge against him rather than in precipitating his plea.
Slip opinion at 4.
Generally questions of credibility are for the trier of fact, Commonwealth v. Hornberger, 441 Pa. 57, 270 A.2d 195 (1970), and absent an abuse of discretion will not be reversed on appeal. Here the lower court's determination of credibility is well supported by the record and shows no abuse of discretion.
Affirmed.
CERCONE, President Judge, concurs in result.
JACOBS, former President Judge, and HOFFMAN, J., did not participate in the consideration or decision in this case.
NOTES
[1] Act of Jan. 25, 1966, P.L. (1965) 1580, 19 P.S. § 1180 et seq. (Supp. 1977-78).
[2] The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, et seq., eff. June 6, 1973, 18 Pa.C.S.A. § 5122.
[3] We might hold that appellant has waived his right to challenge this order on appeal. Normally a petition to withdraw a guilty plea must be filed in the lower court, if the validity of the plea is to be considered on appeal. Commonwealth v. Roberts, 237 Pa.Super. 336, 379 A.2d 319 (1977). See Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749; Pa.R.Crim.P. 321. The fact that counsel for appellant and the district attorney stipulated that the petition should be treated as if it were a petition to withdraw does not preclude a determination that the issue has been waived. A PCHA petition alleging that a guilty plea was not intelligent and voluntary will be treated as the equivalent of a petition to withdraw, if the record shows that the filing of the petition was an attempt to comply with Roberts. Commonwealth v. Beatty, 474 Pa. 104, 376 A.2d 994 (1977); Commonwealth v. Schwartz, 251 Pa.Super. 36, 379 A.2d 319 (1977). In Beatty and Schwartz a PCHA petition was filed within the normal appeal time and a direct appeal raising the issue of the validity of the plea was withdrawn on advice of counsel in an effort to have the lower court review the validity of the plea prior to seeking appellate review. However, in Commonwealth v. Porter, 256 Pa.Super. 163, 389 A.2d 651 (1978), we affirmed the dismissal of a PCHA petition filed almost four years after entry of the plea, where during this period no direct appeal or any other attempt was made to obtain review and the petition did not allege extraordinary circumstances to justify the failure to raise the issue previously. See Commonwealth v. McKelvey, 257 Pa.Super. 409, 390 A.2d 1302 (1978). Here appellant has made the same errors as the appellant in Porter. However, since the same judge who accepted appellant's guilty plea considered his PCHA petition, the purpose of the Roberts rule to give the lower court the opportunity to rectify its errors before an appeal has been satisfied. Also, a review of the record (as the discussion below indicates) reveals that appellant's claims are without merit. Therefore, it is in the interest of judicial economy to dispose of this appeal on the merits. Cf. Commonwealth v. Lee, 460 Pa. 324, 327, 333 A.2d 749, 750 (1975); Commonwealth v. Zakrzewski, 460 Pa. 528, 333 A.2d 898 (1975).
[4] But see n. 7 infra.
[5] Appellant did request leave to present testimony by other prison inmates that the threats against him were real and to introduce newly discovered exculpatory evidence. The former request was denied because the lower court found that the threats against appellant did not influence his decision to plead guilty but only "precipitated his having possession of the weapon," and also because the offered testimony would concern rumors and therefore be inadmissible hearsay. Slip Opinion at 4-5. The latter request was denied because the newly discovered evidence would only raise "the mere possibility" of compelling a different result. See Commonwealth v. Arthur, 257 Pa.Super. 504, 390 A.2d 1350 (1978). We find no reason to hold these rulings error. See n. 7, infra.
[6] The lower court properly overruled appellant's objection to introduction of this letter on the basis that it violated the attorney-client privilege. Where an attorney's conduct has been challenged, admission of such a communication is proper for the purpose of defense. Doll v. Loesel, 288 Pa. 527, 136 A.2d 796 (1927).
[7] In this letter appellant admitted that he possessed the ice pick but stated that in light of the fact that the prison officials could not protect him and could not transfer him to another facility he had no other recourse but to "protect my own self' against possible physical abuse by other inmates. Evidently appellant thought that the "necessity" of self-protection might influence the sentence imposed because he went on in the letter to ask Weidner whether "explaining all of this to the judge, do you think there's a possibility of receiving a concurrent sentence so I can join my new small family this year as opposed to the four and half years I would have to complete as a result of a consecutive sentence, no matter how minute." It should be noted that appellant's asking about the likelihood of a concurrent sentence after his conference with Weidner is inconsistent with his testimony at the PCHA hearing that Weidner told him during the conference that a six to twelve month concurrent sentence was possible.
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347 S.W.2d 131 (1961)
CITY OF UNIVERSITY CITY ex rel. and to the Use of Edwin D. MACKEY, et al., Plaintiffs-Appellants,
v.
FRANK MICELI & SONS REALTY & BUILDING CO., a Corporation, and Travelers Indemnity Company, a Corporation, Defendants,
Travelers Indemnity Company, Respondent.
No. 48336.
Supreme Court of Missouri, Division No. 2.
May 8, 1961.
Motion for Rehearing or to Transfer Denied June 12, 1961.
H. Jackson Daniel and Martin Schiff, Jr., Husch, Eppenberger, Donohue, Elson & Jones, Maurice Schechter, St. Louis, for appellants.
Evans & Dixon, John F. Evans, St. Louis, for respondent.
Motion for Rehearing or to Transfer to Court en Banc Denied June 12, 1961.
BARRETT, Commissioner.
In this suit, prosecuted at the relation of University City, the individually named plaintiffs are ten owners of residence property in an area known as Mayflower Court, a subdivision in University City platted as McKnight Downs. The defendants are Frank Miceli & Sons Realty and Building Company and the Travelers Indemnity Company. In 1953 Miceli subdivided and platted McKnight Downs and eventually sold the eighteen lots or plots of ground in the subdivision to the individually named plaintiffs, and others, or their predecessors *132 in title. In connection with the platting of the subdivision, the Municipal Code required the subdivider to make certain improvements. In lieu of final completion of the improvements the subdivider was permitted to post a surety bond. This Miceli did and the Travelers Indemnity Company is his surety in the principal sum of $18,000. There is a drainage ditch across the north and west side of the subdivision and one of the improvements required of Miceli was the paving, grading and concreting of the ditch, within two years. Miceli did not pave the ditch and the consequence has been that large sections, approximately one-fifth to one-third, of the plaintiffs' lots have washed away. The injury to the individual lots varied, the damages were estimated from $1,500 to $3,500, but the total damages to the ten lots was said to be $18,000. The object of this suit, according to the prayer of the petition, is to have the court "declare forfeit the bond issued by the defendant Travelers Indemnity Company and for judgment in accordance with their damages" in the sum of $18,000 against both defendants.
Miceli defaulted, nevertheless, the trial court did not enter judgment against him and the plaintiffs do not complain of the fact upon this appeal. Other than on crossexamination of the plaintiffs' witnesses Travelers Indemnity Company offered no evidence, and at the close of the plaintiffs' evidence offered a separate motion to dismiss the action. The trial court entered this judgment in favor of Travelers Indemnity Company "against each of the plaintiffs as a cause of action is not stated upon the surety bond executed by defendants upon the finding that it does not come within the provisions of Section 522.020, and Section 522.050, R.S.Mo.1949; although upon all other controverted issues, plaintiffs should prevail." Therefore the trial court dismissed the plaintiffs' action with prejudice and they have appealed.
The plaintiffs have briefed and argued the single point that the court erred in dismissing their action "because sections 522.020, 522.050, 522.080 and 522.150 * * * authorize the plaintiffs, as aggrieved parties, to maintain their action against defendants to forfeit the surety bond." Briefly, the statutes, R.S.Mo.1959, provide that persons injured by the neglect or misfeasance of any officer may proceed against the principal or his sureties in any proceeding authorized by law against such officer "for official neglect or injury." Section 522.010. Sections 522.020 and 522.030, mentioned by the court in its judgment, authorize the prosecution of suits by a "person so suing" in the name of the "obligee named in the bond," or, as here, at the relation of the obligee city. Sections 522.050 and 522.080 provide that "Any other party aggrieved may, in like manner, prosecute an action on such official bond, * * *." And section 522.150 provides that "The provisions of this chapter in relation to suits on official bonds shall apply as well to suits on bonds of executors * * * and others required by law to give bond, with conditions for the performance of any duty or trust, as to suits on bonds of officers; and the persons aggrieved may prosecute suits in the same manner, and with like effect, and shall be subject, in all respects, to the provisions herein contained in respect to suits on official bonds, and the court shall possess the same power in relation to such suits."
The plaintiffs point to these statutes and say that they are "aggrieved parties," that Miceli was a person required by law (the municipal code) to give bond, that the bond was executed to secure the faithful performance of his obligation to pave the drainage ditch and having failed to do so they meet the requirements of these statutes and are entitled to maintain this action.
The respondent bonding company contends that these statutes are not applicable "to the type of bond involved" and that plaintiffs acquired no rights by reason of the statutes to recover on the bond. The respondent says that these statutes apply only to "official bonds" insuring faithful performance of the duties of public officials *133 and quasi public officers such as executors. Section 522.300 permits persons "furnishing material or performing labor" to sue on the bonds of contractors performing public works for the state, county or cities. The respondent contends that the bond involved here is a "public improvement bond" to secure completion of a public work and is therefore governed by section 522.300 but that plaintiffs may not maintain the action under that section because their claim is not for labor or materials furnished. And, finally, the respondent contends that the plaintiffs are not "obligees or beneficiaries under the bond" and may not maintain an action against the surety for damages "on the theory of breach of contract of the principal." In summary, the respondent contends that the purpose of this bond is to indemnify "the city alone" against the duty and expense of providing drainage or sewers and that only the city as sole obligee could enforce it.
After thus, perhaps unnecessarily, elaborately setting forth the contentions of the parties, it is not essential to a determination of this appeal to consider the history and applicability of the statutes. It is assumed for the purposes of this opinion, if the plaintiffs have a cause of action, that they could avail themselves of the remedy afforded by the statutes. See and consider Cooper v. Massachusetts Bonding & Ins. Co., 239 Mo.App. 67, 186 S.W.2d 549; State ex rel. Patterson v. Collins, Mo.App., 172 S.W.2d 284, 289; City of Chillicothe ex rel. Matson v. Raynard, 80 Mo. 185; 63 C.J.S. Municipal Corporations § 1026, p. 623, § 1172, p. 858 and the annotations 47 A.L.R. 5, 170 A.L.R. 1299. It is also sufficient for the purposes of this opinion to summarily say that section 522.300, despite the descriptive catch phrase "Bonds Of Contractors For Public Works," affords relief to "those persons furnishing labor and itid Serial on public work, which cannot be subjected to a mechanic's lien" (City of St. Louis, to Use of Stone Creek Brick Co. v. Kaplan-McGowan Co., 233 Mo.App. 789, 794, 108 S.W.2d 987, 989; Camdenton Consolidated School District, etc. v. New York Casualty Co., 340 Mo. 1070, 104 S.W.2d 319) and has no bearing on this action or its subject. The plaintiffs' basic difficulty here, as in several of the actions brought under these statutes (to illustrate see State ex rel. Funk v. Turner, 328 Mo. 604, 42 S.W.2d 594), is that they have not established a substantive cause of action.
Miceli, admittedly, did not pave the drainage ditch and the city has not attempted to compel performance of his contract, nor has the city taken any action on the bond. In addition to the action's being instituted at the relation of the city, the city attorney and the city engineer were the plaintiffs' principal witnesses. The plaintiffs offered two types of proof to establish the damages to each of the ten lots. First, a witness described the erosion and injury to each lot, the measures necessary to correct the injury and then the witness testified to the cost of repairing the loss. To illustrate, the Schwartz lot lost a strip of ground 20 by 30 feet by erosion and the cost to that lot of paving the ditch, replacing and leveling the dirt was said to be $2,712, and to this was added $350 for sodding the yard and $150 for a fence. Second, the plaintiffs proved the total value of their properties on the assumption that the improvements had been made and the value without the improvements. In the case of the Schwartzes the value of their property with the paved channel was $27,000, without the paved ditch its value was $23,000.
The ordinance, under which the subdivision was platted, provided that "No subdivision plat shall be approved by either the planning commission or by the council unless it conforms to the following minimum standards and requirements." The subdivider was to make certain improvements but in lieu of final completion and before approval of his plat "the subdivider may post a surety bond, approved by the council, which bond will insure to the city that the improvement will be completed by the subdivider within two years after the final approval of the plan. The amount of *134 the bond shall not be less than the estimated cost of improvements, and the amount of the estimate must be approved by the director of public works. If the improvements are not completed within the specified time, the council may use the bond or any necessary portion thereof to complete same." Also under the ordinance, the subdivider was required, according to approved standards and specifications, to "install storm sewers to provide drainage for the development."
On May 18, 1953, University City enacted an ordinance approving the platting of McKnight Downs and attached to the ordinance is the "Land Subdivision Improvement Bond" with Miceli as principal and the Travelers Indemnity Company as surety. The bond recites that the principal and surety "are held and firmly bound unto the City of University City" in the sum of $18,000. Among other things, the bond recites that whereas the principal "proposes to improve and develop a certain tract of land" and has filed a proposed subdivision and plat "showing certain improvements," including "storm water sewers," the principal in lieu of completion of the improvements has filed this "Surety Bond" in favor of the city. It is then recited that this bond "shall indemnify said City and secure to said City the actual construction of such improvements and utilities in a manner satisfactory to said City, in the event said Principal shall fail to install said improvements and utilities within two (2) years." (Italics supplied throughout the quotations.) While the bond is in the principal sum of $18,000, the director of public works informed Miceli that it "may be broken down into three bonds as follows:" for construction of pavement "$11,500, construction of sidewalks $3,000, and "for construction of creek paving $3,500.00."
As previously indicated, "in a proper case" third persons, for whose benefit or protection a contract has been made by a municipal corporation with a private contractor, may maintain an action on the contract (63 C.J.S. Municipal Corporations § 1026, p. 623) and this includes, of course, a bond "to secure the performance of a municipal improvement contract." 63 C.J.S. Municipal Corporations § 1172, p. 858. It is not necessary that the property owners be named as obligees, the problem is whether the contract and bond were for their benefit and protection. Statutes and bonds, as those involved here, are not, however, a substitute for public liability insurance and in the absence of specific agreement do not cover the principal contractor's tort liability to adjoining property owners or other third persons. 63 C.J.S. Municipal Corporations § 1172, p. 858; annotation 67 A.L.R. 990; State ex rel. Leatherman v. Harris, 229 Mo.App. 304, 77 S.W.2d 846; Kansas City ex rel. Blumb v. O'Connell, 99 Mo. 357, 12 S.W. 791; Gerber v. Kansas City, 304 Mo. 157, 263 S.W. 432.
There is some analogy in the cases, but tort liability aside, the contractor, here Miceli, and his surety could contract to pay for any injury to adjoining property. 63 C.J.S. Municipal Corporations § 1259(2), p. 994. The difficulty here is that they have not done so and the contract, ordinance and bond are not reasonably subject to the construction that they were intended for the protection of adjoining property owners. The ordinance required a bond, in lieu of completion of improvements, in a sum not less "than the estimated cost of improvements," which bond "will insure to the city that the improvements will be completed." In the event the improvements were not completed, the council was authorized to resort to the bond "to complete same." The bond, plainly, indemnified and "secure(d) to said City the actual construction of such improvements * * * in a manner satisfactory to said City." The improvements, and in a sense the contract and bond, were for the benefit of property owners in the subdivision, but the contract and bond did not in terms protect third persons or adjoining owners against either torts or breach of contract (Compare Schnaier v. Bradley Contracting Co., 181 *135 App.Div. 538, 169 N.Y.S. 88) and they are not reasonably subject to the construction that the parties intended that they should indemnify these plaintiffs for these particular injuries or losses. City of St. Louis v. G. H. Wright Contracting Co., 202 Mo. 451, 101 S.W. 6; Royal Indemnity Co. v. Independence Indemnity Co., 9 Cir., 29 F.2d 43. Compare Cooper v. Massachusetts Bonding & Insurance Co., supra; Hardware Dealers Mutual Ins. Co. v. R. H. Hidey, Inc., 349 Mich. 490, 84 N.W.2d 795, and see Coley v. Cohen, 289 N.Y. 365, 45 N.E.2d 913, and Freigy v. Gargaro Company, Inc., 223 Ind. 342, 60 N.E.2d 288.
For these indicated reasons the judgment is affirmed.
BOHLING and STOCKARD, C.C., concur.
PER CURIAM.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
All concur.
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382 So.2d 190 (1980)
Benny RICARD
v.
STATE of Louisiana et al.
No. 12951.
Court of Appeal of Louisiana, First Circuit.
January 21, 1980.
Rehearing Denied March 31, 1980.
Dennis R. Whalen, Baton Rouge, for plaintiff-appellant Benny Ricard.
Emile C. Rolfs, III, Howard P. Elliot, Jr., Baton Rouge, for defendants-appellees State of Louisiana, through the Department of Public Safety, Division of State Police, and Steve Jones.
Before COVINGTON, LOTTINGER and COLE, JJ.
COLE, Judge.
This is a suit by Benny Ricard under 42 U.S.C. § 1983[1] (Civil Rights Act) against the State of Louisiana; Steve Jones, a state *191 trooper; and, the Department of Public Safety. Plaintiff allegedly was pistol-whipped by a state trooper and sustained injuries. From a partial summary judgment dismissing his claim for punitive or exemplary damages only, plaintiff has appealed.
The issue before the court is whether an award of punitive or exemplary damages may be made in a suit brought in Louisiana under 42 U.S.C. § 1983.
Plaintiff argues that when a federal cause of action is brought in state court, federal substantive and state procedural law apply, citing Presley v. Upper Mississippi Towing Corp., 141 So.2d 411 (La.App. 1st Cir. 1961), and on remand and reappeal, 153 So.2d 416 (La.App. 1st Cir. 1963). The point is made that "federal common law" substantively allows punitive damages in civil rights actions.
Defendants concede that "when a cause of action that is alleged to have arisen under federal law is brought in the state court, federal law must apply pursuant to the Supremacy Clause of the United States Constitution." They argue, however, that 42 U.S.C. § 1983 is silent as to whether punitive damages are recoverable, and thus we must look to 42 U.S.C. § 1988[2], which in essence provides that where the laws of the United States do not provide "suitable remedies," laws of the state in which the court having jurisdiction is located must be applied.
In support thereof they cite Baggett v. Richardson, 473 F.2d 863 (5th Cir. 1973), as authority that a federal court will not award punitive damages if such damages are not allowed under state law. While we agree that this case stands for that holding, we find it inapposite because it was a maritime tort case applying Louisiana tort law, under which there are no punitive damages.
As an apparent indication that punitive damages are not allowed in § 1983 actions, defendants cite Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) which in part states:
"To the extent that Congress intended that awards under § 1983 should deter the deprivation of constitutional rights, there is no evidence that it meant to establish a deterrent more formidable than that inherent in the award of compensatory damages." (98 S.Ct. 1048-49).
The footnote to that statement, however, in part states:
"This is not to say that exemplary or punitive damages might not be awarded in a proper case under § 1983 with the specific purpose of deterring or punishing violations of constitutional rights. See, e. g., Silver v. Cormier, 529 F.2d 161, 163-164 (CA10 1976); Stengel v. Belcher, 522 F.2d 438, 444 n. 4 (CA6 1975), cert. dismissed, 429 U.S. 118, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976); Spence v. Staras, 507 F.2d 554, 558 (CA7 1974); Caperci v. Huntoon, 397 F.2d 799, 801 (CA1), cert. denied, 393 U.S. 940, 89 S.Ct. 299, 21 L.Ed.2d 276 (1968); Mansell v. Saunders, 372 F.2d 573, 576 (CA5 1967); Basista v. Weir, 340 F.2d 74, 84-88 (CA3 1965). Although *192 we imply no approval or disapproval of any of these cases, we note that there is no basis for such an award in this case. The District Court specifically found that petitioners did not act with malicious intention to deprive respondents of their rights or to do them other injury, see n. 6, supra and the Court of Appeals approved only the award of `non-punitive' damages, 545 F.2d, at 31." An examination of the cases cited in the above quoted footnote reveals that all were decided by federal courts in traditional common law states (Colorado, Ohio, Illinois, Massachusetts, Florida and Pennsylvania) applying in most instances the common law majority rule that punitive damages may be awarded where actual damages have been suffered. Admittedly, in Basista, supra, the progenitor of the other cases cited, the federal court sitting in Pennsylvania awarded only punitive damages contrary to the majority rule which that state follows. However, the case does not stand for the proposition that there existed some mystical "federal common law" which supremely negated Pennsylvania law. The actual holding of the case in this regard is found at page 85 of the opinion:
"In this court Scalese's counsel raises the issue, seeking to apply the law of Pennsylvania, that there can be no exemplary or punitive damage where actual damage is not shown. (citation omitted.) But Scalese's counsel made no objection to the court's submission to the jury of the issue of exemplary damages, and, therefore, must be deemed to have waived any objection to this portion of the court's instructions. See Rule 51, Fed.R.Civ.Proc."
After deciding the issue thusly, and noting that § 1988 had apparently not previously been construed by any court with respect to the issue of punitive damages, the Basista court then engaged in a discussion of the history of the Civil Rights Act and, by dictum, espoused the view that Congress intended the Act to be applied uniformly throughout the United States. The court reasoned that "federal common law" must apply to effect that uniformity and "federal common law" allows punitive damage awards. Interestingly, all of the subsequent cases cited Basista as authority for the proposition that "federal common law" decrees the award of punitive damages in Civil Rights cases. In chronological order, Mansell cited Basista; Caperci cited Mansell and Basista; Spence cited Mansell and Basista; Stengel cited Basista; and, Silver cited Spence and Basista. It is little wonder that the United States Supreme Court chose to neither approve nor disapprove of these cases. Perhaps, aside from a recognition that the cases subsequent to Basista represent no more than jurisprudential fission, the court remembered the words of Mr. Justice Brandeis in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817 at p. 822, 82 L.Ed. 1188 (1938):
"Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. And whether the law of the state shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law." (Emphasis added.)
We acknowledge that the above noted federal cases are persuasive. The same result has been reached under 42 U.S.C. § 1981, another provision of the Civil Rights Act. See Claiborne v. Illinois Central Railroad, 583 F.2d 143 (5th Cir. 1978). However, we agree with the United States Supreme Court's pronouncement in Carey, supra, that with respect to actions under § 1983, there is no evidence that Congress meant to establish a deterrent more formidable than that inherent in the award of compensatory damages. We have found no provisions of law enacted by Congress mandating punitive damages in Civil Rights cases. Nor does the United States constitution require the imposition of punitive damages. In such instance, § 1988 requires "the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held. . . shall . . . govern the said courts in the trial and disposition of the cause . . ."
*193 A careful reading of § 1988 leads to the unmistakable conclusion that there is no impediment to the application of Louisiana law in this instance. In fact, it is required.
It is academic that Louisiana has never embraced the common law. By contrast our people, upon acquiring statehood, retained the civil law heritage. However, within the context of 42 U.S.C. § 1988 it can be said that we have indeed modified and changed the common law as regards the award of exemplary or punitive damages. Art. 2315 of the Civil Code of Louisiana in part provides:
"Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." (Emphasis added.)
This provision is the cornerstone of our tort law and may readily be traced to the Code Napoleon, promulgated in 1804. It is found in the Civil Code of 1808, the basic law of the Louisiana territory, and has remained intact throughout our history. As so often explained, it contemplates simple reparation, a just and adequate compensation for injuries. It suggests no idea of revenge or punishment. As explained in Post v. Rodrigue, 205 So.2d 67, at p. 70 (La.App. 4th Cir. 1968):
"The settled law of Louisiana is that vindictive, punitive or exemplary damages are not allowed in civil cases unless specifically provided for; in the absence of such a specific provision only compensatory damages may be recovered." (Citations omitted.)
We conclude that exemplary or punitive damages are not available in a § 1983 action brought in this state. In this regard, Louisiana law is applicable pursuant to the provisions of § 1988.
For the above and foregoing reasons the judgment of the trial court is affirmed. All costs of this appeal are to be paid by plaintiff.
AFFIRMED.
LOTTINGER, J., dissents and assigns written reasons.
LOTTINGER, Judge, dissenting.
I respectfully dissent.
The majority cites six federal appellate court cases which held that punitive damages are awardable in a § 1983 action, but then disregards them in deference to a recent United States Supreme Court opinion which arguably would allow punitive damages under the facts alleged in the case at bar.
In Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), the case upon which the majority bases its holding, the Supreme Court did make the general statement that there is no evidence that Congress meant to establish a deterrent more formidable than compensatory damages in § 1983 actions. However, the footnote to that general statement is all important. Indeed, the majority cites the footnote in its opinion. The footnote limits the general statement made in the text of the opinion to the facts of that case. The court suggests that punitive damages might be recoverable in the "proper case" under § 1983 if the purpose of awarding punitive damages is to deter or punish violations of constitutional rights, particularly when the court finds a "malicious intention to deprive respondents of their rights or to do them other injury." 98 S.Ct. 1048-1049.
The petitioner in this case alleges that he was pistol-whipped by a state trooper and that he sustained injuries because of the pistol-whipping. If the plaintiff proves these allegations at trial, then I think that there has been a malicious intention to deprive him of his constitutional rights or to do him other injury.
Perhaps more important than its disregard of the six federal appellate cases cited in its opinion is the majority's disregard of the underlying rationale of Basista v. Weir, 340 F.2d 74 (CA3 1965). Basista stands for, and has been cited as standing for, the proposition that the Federal Civil Rights Act should be applied uniformly throughout the United States. The majority makes only short mention of the uniformity argument and does nothing to dispute it. Six *194 federal circuit courts, including the Fifth Circuit Court of Appeals, have held that punitive damages are awardable in the proper case under a § 1983 action. These federal cases represent an interpretation of a congressional statute and are therefore binding upon us.
The Basista argument that the Civil Rights Act should be applied uniformly throughout the United States is a substantial argument that should not be rejected without careful consideration. Confusion would be the rule if the act were given a different interpretation depending upon the tort law of the state in which an action was brought. Congress surely did not intend this when it enacted § 1983, and the federal courts which have interpreted § 1983 have attempted to give it some uniformity.
There is no need in this case to rely upon § 1988 of Title 42 because federal courts have interpreted § 1983 to allow punitive damages. As noted earlier, we are bound by this interpretation and we should at least allow the issue to go to trial in this case.
Therefore, I respectfully dissent from the majority opinion in this case.
NOTES
[1] 42 U.S.C. § 1983 reads:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
[2] 42 U.S.C. § 1988 provides:
"The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty. In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or in any civil action or proceeding, by or on behalf of the United States of America, to enforce, or charging a violation of, a provision of the United States Internal Revenue Code, or title VI of the Civil Rights Act of 1964, 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."
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418 P.2d 549 (1966)
The STATE of Montana, Plaintiff-Respondent,
v.
Rick TULLY, Defendant-Appellant.
No. 10933.
Supreme Court of Montana.
Submitted September 14, 1966.
Decided September 28, 1966.
Rehearing denied October 25, 1966.
Vernard C. Anderson, Jr. (argued) Billings, for appellant.
Forrest H. Anderson, Atty. Gen. Helena, John L. Adams, Jr., Deputy Co. Atty., Billings, Alfred Coate, Asst. Atty. Gen., (argued) Helena, for respondent.
HARRISON, Chief Justice.
This is an appeal from a judgment entered in the District Court of Yellowstone County following a jury verdict of guilty of the crime of uttering and delivering a fraudulent check. The defendant was sentenced to four years in prison.
Defendant makes two specifications of error. First, defendant contends that the trial court erred in admitting into evidence certain checks other than the check upon which the defendant was being tried. Second, defendant contends that admitting into evidence facts tending to prove a prior felony conviction was prejudicial to the defendant when the State was unable to prove in fact that the defendant was convicted of a felony.
Section 94-2702, R.CM. 1947, establishes the elements of the crime of uttering and delivering a fraudulent check. It provides in part:
"Any person who for himself * * * wilfully, with intent to defraud shall make * * * any check * * * for the payment of money upon any bank * * * knowing at the time of such making * * * that the maker * * * has no funds * * * with such bank * * * for the payment of such check * * * in full upon its presentation, although no express representation is made with reference thereto, shall upon conviction be punished as follows: If there are no funds in * * * such bank * * * for the payment of any part of such check * * * upon presentation, then in that case the person convicted shall be punished by imprisonment in the state prison not exceeding five (5) years, or by a fine not exceeding five thousand dollars ($5,000.00) or by both such fine and imprisonment * * *."
The record before this court reveals the following facts: The State's witnesses *550 testified that on January 7, 1964, the defendant had purchased some groceries in a Billings grocery market; that he had paid for the groceries with a $20.00 check, drawn on the Billings State Bank, receiving some $11.00 or $12.00 in change; that the check had been returned three days later marked "no account"; that the defendant had never had an account at the Billings State Bank; that a search for the defendant conducted by an employee of the grocery market had been fruitless; and that the check had been turned over to the county attorney's office for prosecution on January 15, 1964.
At the trial, defendant testified in his own behalf. The defendant admitted making the check, giving the check in payment for the groceries, and not having any account at the Billings State Bank. However, upon cross-examination defendant denied any intent to defraud Thus, defendant put in issue one of the prime elements of the crime, namely, the wilful intent to defraud.
To prove this wilful intent to defraud, the State cross-examined the defendant concerning ten other checks that had been drawn by the defendant upon the Security Trust & Savings Bank in Billings in which he again had no account. These checks totaled $225.00. They were cashed in three different Billings business establishments from December 18, 1963, to January 3, 1964 Defendant did not deny writing the checks or cashing them. Defendant was further asked if he had written eight other checks on the Billings State Bank in January, 1964, before his arrest Defendant's answer to the question was vague, but there was no further questioning as to these individual checks.
This brings us to a consideration of defendant's first specification of error. Defendant contends that admitting over objection the evidence concerning the other checks which he wrote from December 18, 1963, until the time of his arrest on January 16, 1964, was prejudicial error With this contention we do not agree.
In State v. Hollowell, 79 Mont 343, 349, 256 P. 380, 382, this court commented as follows:
"* * * The general rule is that evidence of crimes other than the one for which a defendant is on trial is not admissible, but to this rule there are exceptions, and one is where evidence is material as tending to show the intent or motive of the defendant in the commission of the offense for which he is on trial, notwithstanding the fact that it also tends to prove the commission by him of another offense." (Citing previous cases.) (Emphasis supplied.)
Later in State v. Simpson, 109 Mont. 198, 208, 95 P.2d 761, 764, this court further commented:
"* * * * The rule which Montana has followed, and to which we now adhere, is succinctly stated in 20 American Jurisprudence, page 289, as follows: `Evidence of other crimes is always admissible when such evidence tends directly to establish the particular crime and it is usually competent to prove the motive, the intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others, or the identity of the person charged with the commission of the crime on trial.'" (Emphasis supplied.)
In a period of about three weeks, the defendant had written eleven checks on two nonexistent bank accounts for a total of $275.00. The amount of the eight other checks was not shown. This evidence was properly received for consideration by the jury concerning whether defendant had the wilful intent to defraud, a subject which defendant had affirmatively denied.
We now consider defendant's second specification of error.
Section 93-1901-11, R.C.M. 1947, provides that a witness may be impeached if he has ever been convicted of a felony and that this may be shown by examination of the witness or the record of the judgment. Upon cross-examination the defendant was *551 asked if he had ever been convicted of a felony. He replied, "That I cannot answer to on advice of counsel because we can't find out whether I have or not * * *." Further questioning of defendant revealed that he had received a five-year deferred sentence in the State of Washington for grand larceny. Upon redirect examination, the defendant was allowed to further explain the details of the State of Washington incident. Defendant's testimony on cross-examination concerning the incident was without objection. His explanation of the incident on redirect examination was made over various objections of the State.
The State called W.E. McConnell, a probation and parole officer for the State of Montana, in an attempt to prove the prior felony conviction. His testimony only substantiated what the defendant had testified to, inasmuch as he stated that the crime was grand larceny and that the defendant was on probation to him from the State of Washington. When an uncertified copy of the Judgment and Order Deferring Sentence and Granting Probation that was in Mr. McConnell's possession was attempted to be entered into evidence by the State, it was refused upon the timely objection of defendant's counsel.
From State v. Coloff, 125 Mont. 31, 231 P.2d 343, defendant quotes the rule that if a witness denies a prior conviction, then the only evidence concerning the conviction that can be allowed is the record of the judgment. However, the defendant fails to see the distinction in the rule of the Coloff case, and the happenings in this case. Here defendant neither denied nor affirmed a prior felony conviction, but instead attempted to explain the State of Washington incident. As we read the transcript of the trial, whatever prejudice that may have occurred to the defendant came from his own lips. Mr. McConnell's testimony only confirmed the defendant's testimony concerning his sentence and probation from the State of Washington.
The defendant explained to the jury his reasons for giving the check when he had no bank account He offered witnesses to substantiate his story He was afforded a complete opportunity to explain fully his brush with the law in the State of Washington. However, the jury did not believe his story. They found the necessary wilful intent to defraud.
Finding no error in the record, the judgment is affirmed.
MR. JUSTICES JOHN CONWAY HARRISON, ADAIR and CASTLES, concur.
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In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1092
Cheryl K. McPhaul,
Plaintiff-Appellant,
v.
Board of Commissioners of Madison County,
Indiana, Arleen Horine, in her official and
individual capacity, and Madison County
Board of Health,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 97 C 97--Sarah Evans Barker, Chief Judge.
Argued February 18, 2000--Decided August 16, 2000
Before Bauer, Posner, and Manion, Circuit Judges.
Manion, Circuit Judge. Cheryl McPhaul sued her
former employer, the Madison County Board of
Commissioners, alleging that the County failed to
accommodate her disability in violation of the
Americans with Disabilities Act (ADA). She also
brought an individual capacity suit, under 42
U.S.C. sec. 1983, against her former supervisor,
Arleen Horine, alleging that Horine discriminated
against her because of her race, in violation of
the Equal Protection Clause of the Fourteenth
Amendment. The defendants moved for summary
judgment. The district court granted the motion,
concluding that McPhaul failed to establish a
prima facie case for her ADA and section 1983
claims. McPhaul appeals, and we affirm.
I.
Cheryl McPhaul is a black woman who worked as a
registered nurse for the Women, Infants and
Children (WIC) program in Madison County,
Indiana. WIC is a federally-funded program that
provides health care and nutrition assistance for
pregnant women, infants and children. McPhaul’s
supervisor was Arleen Horine, a registered nurse
who coordinates the WIC program in Madison
County.
McPhaul began working for WIC as a nurse
nutritionist in April of 1994, where her
responsibilities included counseling WIC clients
about nutrition and certifying them for program
benefits like food supplements. In May 1995,
Horine concluded that McPhaul’s performance as a
nutritionist was deficient because she was
writing the same information on the charts of WIC
clients regardless of their varying situations,
including the infants, a practice that Horine
described as "totally inappropriate." Thus,
Horine transferred McPhaul to the position of
intake clerk in May 1995. Intake clerks certify
clients for the WIC program in order to secure
federal funding. They record the heights and
weights of clients so that the nurse
nutritionists can properly advise clients about
their diets. As an intake clerk, McPhaul
continued to receive the same benefits and pay
that she received as a nutritionist.
In September 1995, McPhaul received her first
performance evaluation as an intake clerk, in
which Horine rated her performance "Below
Average," the second lowest rating on a scale of
five. Horine’s evaluation states that McPhaul was
having "great difficulty in doing her job," that
she was making "gross errors" in charting the
heights and weights of clients, and that she was
having trouble remembering shot schedules for
infants and children and how to certify clients.
Although McPhaul was retrained after her initial
evaluation, she fared no better on her second
evaluation in November 1995. According to
Horine’s notes, McPhaul’s performance was still
"Below Average" because she continued to make
"gross errors" in plotting the heights and
weights of clients, and was still unable to
understand the certification process. In January
1996, Horine completed McPhaul’s third (and last)
performance review, in which McPhaul received the
lowest possible rating of "Unsatisfactory."
Horine stated that McPhaul was making "numerous
errors" in the routine tasks of the job, and that
she was still failing to accurately record the
heights, weights, and even the ages of clients.
Horine recommended to the WIC administrator that
McPhaul should be discharged. The administrator
and the Health Officer approved Horine’s
recommendation, and McPhaul was terminated on
January 22, 1996.
After her termination, McPhaul sued the Board of
Commissioners, alleging that she was disabled and
that the Board failed to accommodate her
disability, in violation of the ADA. She also
sued Horine in her individual capacity, under
section 1983, alleging that Horine discriminated
against her because of her race, thus affecting
the terms and conditions of her employment.
McPhaul also claimed that Horine failed to
protect her from an alleged campaign of racial
harassment by her white co-worker, Marcia Shock.
Concerning her ADA action, McPhaul claims that
she had been suffering from fibromyalgia since
February 1995 (before Horine transferred her from
the nutritionist position to the intake clerk
position in May 1995). Fibromyalgia is a disease
that is similar to chronic fatigue syndrome; its
cause is unknown, there is no cure, and the
symptoms are entirely subjective and usually
involve chronic pain and fatigue. McPhaul’s
fibromyalgia symptoms included fatigue, insomnia,
shortness of breath and muscle pain, including
sore hands and joints. She claims that her
condition made it difficult for her to
concentrate, bathe, walk, write and work, and
that in September 1995 she requested Horine to
accommodate her alleged disability by allowing
her to arrive at work one hour later or to leave
one hour earlier, or both. According to McPhaul,
her request was denied. Horine claims that
McPhaul never made the request.
On January 11, 1996, McPhaul saw Dr. Van Dellen
at the Mayo Clinic. He concluded that it was
"possible" that McPhaul had fibromyalgia, and he
gave her a card that instructed her to
participate in an education program about the
disease. McPhaul allegedly presented the card to
Horine, but Horine asserts that she was never
informed of McPhaul’s disease. McPhaul was not
diagnosed with fibromyalgia until February 1,
1996, several days after she was terminated.
McPhaul’s disparate treatment claim under
section 1983 is based on several allegations that
Horine discriminated against her because of her
race by demoting her to the intake clerk
position, terminating her from that position, and
by treating her differently in regards to other
terms and conditions of her employment. Horine
disputes these allegations.
In support of her hostile environment claim
under section 1983, McPhaul alleges that she was
harassed by Shock’s discussion of racially
sensitive subjects and her repeated use of the
word "nigger" in McPhaul’s presence. McPhaul also
alleges that Horine knew about and tolerated
Shock’s conduct, and is thus liable in her
individual capacity. Horine disputes these
allegations as well.
The defendants moved for summary judgment,
arguing that McPhaul failed to establish a prima
facie case to support her claim under the ADA, or
to support her disparate treatment and hostile
environment claims under section 1983. The
district court granted the motion, concluding
that McPhaul’s ADA claim failed because she did
not present sufficient evidence that she was
disabled; that her disparate treatment claim
failed because she presented no evidence that
Horine was motivated by discriminatory intent;
and that her hostile environment claim failed
because she produced no evidence that her work
environment was objectively hostile, or that
Horine knew or consented to Shock’s conduct.
"We review the district court’s entry of summary
judgment de novo," Miller v. American Family Mut.
Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000), and
we will view all of the facts and draw all
reasonable inferences in favor of the nonmoving
party. See id. Summary judgment is proper if the
evidence shows that "there is no genuine issue as
to any material fact and that the moving party is
entitled to a judgment as a matter of law." Fed.
R. Civ. P. 56(c). McPhaul cannot merely allege
the existence of a factual dispute to defeat
summary judgment. Skorup v. Modern Door Corp.,
153 F.3d 512, 514 (7th Cir. 1998). She must
supply evidence sufficient to allow a jury to
render a verdict in her favor. Ross v. Indiana
State Teacher’s Association, 159 F.3d 1001, 1012
(7th Cir. 1998).
II.
A. The ADA Claim
McPhaul’s first argument on appeal is that the
district court erred in concluding that her
reasonable accommodation claim fails because she
was not disabled under the ADA. The ADA
proscribes discrimination "against a qualified
individual with a disability because of the
disability of such individual in regard to job
application procedures, the hiring, advancement,
or discharge of employees, . . . and other terms,
conditions and privileges of employment." 42
U.S.C. sec. 12112(a). The Act also provides that
an employer discriminates against a qualified
individual with a disability by "not making
reasonable accommodations to the known physical
or mental limitations of an otherwise qualified
individual with a disability . . . ." 42 U.S.C.
sec. 12112(b)(5)(A). To establish a prima facie
case for failure to accommodate under the ADA,
McPhaul must show that: (1) she was disabled; (2)
the Board was aware of her disability; and (3)
she was a qualified individual who, with or
without reasonable accommodation, could perform
the essential functions of the employment
position. Feldman v. American Memorial Life Ins.
Co., 196 F.3d 783, 789 (7th Cir. 1999). Although
the district court held that McPhaul failed to
establish that she was disabled, we reserve
opinion on that determination because we find it
dispositive that McPhaul has failed to present
sufficient evidence to show that she was a
"qualified individual" under the ADA. See id.
A "qualified individual with a disability" is
"an individual with a disability who, with or
without reasonable accommodation, can perform the
essential functions of the employment position
that such individual holds or desires." 42 U.S.C.
sec. 12111(8). McPhaul has the burden of proof on
this issue, as she must show that she could
perform the essential functions of the
nutritionist and intake clerk jobs either with or
without a reasonable accommodation. Bultemeyer v.
Fort Wayne Community Schools, 100 F.3d 1281, 1284
(7th Cir. 1996); 29 C.F.R. sec. 1630.2(m).
The evidence clearly demonstrates that McPhaul
was not able to perform the essential functions
of the nutritionist and intake clerk positions.
Horine concluded that McPhaul’s performance as a
nutritionist was deficient because she was
recording the same information on the charts of
all of her patients, regardless of the various
facts each presented, including the infants. For
obvious reasons, Horine described this practice
as "totally inappropriate." McPhaul does not
dispute Horine’s conclusion. Moreover, McPhaul
does not dispute Horine’s three evaluations that
thoroughly documented McPhaul’s performance
deficiencies as an intake clerk./1 And McPhaul
presents no medical evidence to show that her
performance deficiencies at either job were due
to her alleged disability of fibromyalgia.
McPhaul responds by claiming that she would have
been able to perform the essential functions of
the nutritionist and intake clerk jobs if Horine
accommodated her request to arrive at work one
hour later, or to leave one hour earlier. Aside
from the fact that Horine claims that McPhaul
never requested reduced hours, McPhaul provides
no medical evidence to support her claim that her
requested accommodation would have improved her
performance, as none of her physicians ever
recommended any work restrictions or
accommodations due to her condition./2 All that
McPhaul can present in support of her reasonable
accommodation claim is her own self-serving
testimony, and in this case, that is just not
sufficient for a reasonable jury to find that she
is a qualified individual with a disability under
the ADA. See Slowiak v. Land O’Lakes, Inc., 987
F.2d 1293, 1295 ("Self-serving affidavits without
factual support in the record will not defeat a
motion for summary judgment."). Therefore,
McPhaul’s ADA claim fails.
B. The Section 1983 Claims
McPhaul also argues that Horine is personally
liable for discriminating against her because of
her race, in violation of the Equal Protection
Clause of the Fourteenth Amendment and 42 U.S.C.
sec. 1983. According to McPhaul, Horine treated
her differently regarding the terms and
conditions of her employment, and failed to act
to stop Shock’s alleged campaign of racial
harassment.
To state a prima facie case under the Equal
Protection Clause of the Fourteenth Amendment, a
plaintiff must demonstrate that she: (1) is a
member of a protected class; (2) is otherwise
similarly situated to members of the unprotected
class; (3) suffered an adverse employment action;
(4) was treated differently from members of the
unprotected class; and (5) the defendant acted
with discriminatory intent. Greer v. Amesqua, 212
F.3d 358, 370 (7th Cir. 2000); Jackson v. City of
Columbus, 194 F.3d 737, 751-52 (6th Cir. 1999).
Regarding the fifth element, McPhaul must show
that Horine "acted [or failed to act] with a
nefarious discriminatory purpose," and
discriminated against McPhaul because of her
membership in a definable class (because she is
black). Nabozny v. Podlesny, 92 F.3d 446, 453
(7th Cir. 1996) (internal citations omitted).
1. Disparate treatment.
McPhaul first contends that Horine discriminated
against her because of her race by treating her
differently in regards to the terms and
conditions of her employment by: (1) transferring
her to the intake clerk position; (2) terminating
her from that position; (3) neglecting to train
her for the intake clerk position while Shock, a
white intake clerk, received more sufficient
training; (4) denying her request to work reduced
hours while granting Shock’s request for the same
accommodation; (5) requiring her to see more
clients than Shock; and (6) prohibiting her from
wearing a nurse’s uniform while allowing Shock to
wear one.
McPhaul’s claims regarding her transfer and
termination clearly fail because she does not
establish the second and fifth elements of a
prima facie case. She does not establish the
second element--that she was otherwise similarly
situated to other nutritionists or intake clerks
who are members of an unprotected class--because
she does not identify any co-worker with a
similar "Below Average" or "Unsatisfactory"
performance rating./3 See O’Connor v. Chicago
Transit Authority, 985 F.2d 1362, 1371 (7th Cir.
1993) ("To make a prima facie case, O’Connor
would have to show that another grossly
insubordinate worker was treated better than
him.") (citation omitted). And because McPhaul
presents no evidence to indicate that Horine’s
transfer and termination decisions were motivated
by any reason other than McPhaul’s performance
deficiencies (which are undisputed), she clearly
fails to show that Horine’s decisions were
motivated by racial animus. Nabozny, 92 F.3d at
453.
On her claim about inadequate training, McPhaul
essentially argues that Horine set her up for
failure by neglecting to prepare her for the
intake clerk position while Horine ensured that
Shock was well prepared before she started the
job. Horine disputes McPhaul’s claim, and the
record contains no evidence that Shock received
better (or more timely) preparation for the
position. See Slowiak, 987 F.2d at 1295.
Moreover, McPhaul does not dispute Horine’s notes
that McPhaul was "retrained fully for the job"
after her first evaluation, but her performance
still deteriorated to the "Unsatisfactory" level.
Because the record discredits McPhaul’s argument,
and she presents no evidence that Horine acted
with racial animus, this claim fails.
McPhaul’s next contention is that Horine
discriminated against her when she allegedly
denied her request to work a reduced schedule,
but granted Shock’s request for the same
accommodation. According to McPhaul, Horine’s
reason for denying her request was that she
already reduced hours for Shock and could not
grant the same favor to McPhaul./4 But McPhaul’s
actual testimony was that Shock’s time away from
work "varied," and not that she was regularly
allowed to work a reduced schedule, which
corroborates Horine’s testimony that Shock never
requested a reduced schedule, but occasionally
took sick leave and vacation days. McPhaul
presents no evidence to dispute that Shock used
her accrued sick or vacation time when Horine
allowed her to take a portion of a day off. And
the record demonstrates that by January 1996,
McPhaul had used all of her vacation and sick
time. Nevertheless, Horine’s decision to allow
Shock to take accrued leave, and not to allow
McPhaul to take leave that had not been accrued,
does not evince that Horine was motivated by a
"nefarious discriminatory purpose," and this
claim fails./5
McPhaul also contends that Horine required her
to see more WIC clients than Shock on a daily
basis. In support of her contention, McPhaul
relies solely on her own observations through a
window to Shock’s office, and fails to challenge
the scheduling book in the record that
demonstrates that the WIC receptionist
distributed WIC clients equally to McPhaul and
Shock. Thus, McPhaul provides no evidence that
Horine intentionally assigned more clients to
McPhaul, or did so because of her race.
McPhaul’s last claimed instance of disparate
treatment is that Horine prohibited her from
wearing a nursing uniform while she allowed Shock
to wear one. According to McPhaul, Horine told
her not to wear a uniform because WIC clients
feel more comfortable when WIC staff are dressed
in casual clothes. McPhaul does not indicate that
she requested to wear a uniform, or that she was
ever punished for wearing a uniform, or that she
ever asked why Shock was apparently allowed to
wear a uniform. The uniform was not a factor in
her transfer or her termination, and there is no
evidence that the uniform was an important issue
at WIC. McPhaul just does not show that Horine’s
policy on uniforms was an adverse employment
action. See Southard v. Texas Bd. of Criminal
Justice, 114 F.3d 539, 555 (5th Cir. 1997) ("Not
every negative employment decision or event is an
adverse employment action that can give rise to a
discrimination or retaliation cause of action
under section 1983."); see also Silk v. City of
Chicago, 194 F.3d 788, 800 (7th Cir. 1999).
McPhaul also provides no evidence that Horine’s
policy was motivated by racial animus.
We conclude that McPhaul’s claimed instances of
discrimination (considered individually and
collectively) do not constitute sufficient
evidence for a reasonable jury to conclude that
Horine discriminated against her because of her
race. Thus, McPhaul’s disparate treatment claim
fails.
2. Hostile environment.
McPhaul also contends that Horine is personally
liable for failing to act to stop Shock’s alleged
campaign of racial harassment. McPhaul does not
allege any harassment by Horine, but that Shock,
her co-worker, harassed her by making racially
sensitive and derogatory remarks in her presence
while Horine failed to intervene to rectify the
situation.
To establish an individual capacity claim under
section 1983 against a supervisory official,
there must be a showing that the official was
directly responsible for the improper conduct,
Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th
Cir. 1983), and "knowingly, willfully, or at
least recklessly caused the alleged deprivation
by [her] action or failure to act." Rascon v.
Hardiman, 803 F.2d 269, 274 (7th Cir. 1986).
However:
[A] defendant’s direct participation in the
deprivation is not required. An official
satisfies the personal responsibility requirement
of section 1983 if she acts or fails to act with
a deliberate or reckless disregard of plaintiff’s
constitutional rights, or if the conduct causing
the constitutional deprivation occurs at her
direction or with her knowledge and consent.
Id. (quoting Smith v. Rowe, 761 F.2d 360, 369
(7th Cir. 1985)). The plaintiff must also show
that the supervisor acted (or failed to act)
because of the plaintiff’s race. See Nabozny, 92
F.3d at 453.
To prevail on a hostile environment racial
harassment claim, the plaintiff must also show
that her work environment was both subjectively
and objectively hostile./6 See Adusumilli v.
City of Chicago, 164 F.3d 353, 361 (7th Cir.
1998) (citing Harris v. Forklift Systems, 510
U.S. 17, 21 (1993)).
An objectively hostile environment is one that a
reasonable person would find hostile or abusive.
[Harris, 510 U.S. at 21]. In determining whether
a plaintiff has met this standard, courts must
consider all the circumstances, including "the
frequency of the discriminatory conduct; its
severity; whether it was physically threatening
or humiliating; or a mere offensive utterance;
and whether it unreasonably interferes with an
employee’s work performance." [Id. at 23].
Adusumilli, 164 F.3d at 361. We shall evaluate
McPhaul’s claims according to these standards.
McPhaul alleges that Shock harassed her by
discussing racially sensitive subjects and by
repeatedly using the racial epithet "nigger" in
McPhaul’s presence. Although McPhaul alleges that
Shock’s comments occurred on a weekly basis, she
presents three specific instances on appeal. In
the first instance, Shock repeated to McPhaul a
comment (made to Shock by a WIC client) that
Horine looked like "a little nigger lady." The
second instance involved Shock calling McPhaul’s
attention to the fact that a client was a dark-
skinned mother who had a lighter-skinned baby.
And lastly, Shock told McPhaul that Shock’s
family was once harassed by the Ku Klux Klan.
According to McPhaul, she complained to Horine
about Shock’s derogatory and racially insensitive
remarks, and that Horine advised her to "ignore
it." But McPhaul also admitted that Horine later
separated her from Shock by moving her to her own
office. Horine testified that McPhaul never
complained to her about Shock’s alleged
harassment, and that she never witnessed Shock
using the word "nigger."
We first consider whether Shock’s remarks
created an objectively hostile environment for
McPhaul. Shock allegedly used the word "nigger"
when she repeated a comment made by a WIC client
about Horine,/7 and thus Shock did not direct
that epithet at McPhaul or anyone else. When such
harassment is directed at someone other than the
plaintiff, the "impact of [such] ’second hand
harassment’ is obviously not as great as the
impact of harassment directed at the plaintiff."
Gleason v. Mesirow Financial, Inc., 118 F.3d
1134, 1144 (7th Cir. 1997). Although McPhaul also
alleges that Shock used the word "nigger" on a
weekly basis, she never claims that Shock
directed it at McPhaul or anyone else, which
indicates that Shock tended to repeat the epithet
out of her own immaturity and insensitivity,
rather than racial animus. Moreover, McPhaul
stated twice in her deposition that she
considered Shock’s remarks (especially her use of
the word "nigger") to be "offensive," but she
never claimed that they interfered with her work
performance, or were physically threatening or
humiliating. Thus, the "mere utterance of an . .
. epithet which engenders offensive feelings in
an employee" is not sufficient to establish a
hostile working environment. Harris, 510 U.S. at
21 (quoting Meritor Savings Bank, FSB v. Vinson,
477 U.S. 57, 67 (1985)).
Shock’s comment about the child’s skin color was
understandably offensive to McPhaul, but it was
not about McPhaul, and merely demonstrates
Shock’s ignorance of the probable consequences of
her careless chatter rather than racial
hostility. And Shock’s claim that the Ku Klux
Klan once harassed her family does not implicate
any hostile intent. We conclude, therefore, that
McPhaul fails to present sufficient evidence to
support a reasonable inference that Shock’s
remarks created an objectively hostile working
environment. See Adusumilli, 164 F.3d at 361.
Moreover, there is insufficient evidence to
indicate that Horine deliberately or recklessly
intended or allowed Shock’s alleged conduct, or
that Horine failed to act because she was
motivated by racial animus against McPhaul. The
record does not indicate that Horine intended or
directed any of Shock’s comments, as they appear
to have involved Shock’s spontaneous (and
inconsiderate) reactions to what she had observed
or heard. And McPhaul admits that Shock’s
comments decreased after Horine gave McPhaul her
own office. Therefore, McPhaul presents
insufficient evidence to indicate that Horine was
responsible for Shock’s alleged campaign of
harassment, and the hostile environment claim
fails./8
We conclude that McPhaul has failed to establish
a prima facie case under the ADA because she is
not a qualified individual with a disability. She
has also failed to establish a prima facie case
under section 1983 because she has not made a
sufficient showing that Horine discriminated
against her because of her race. Accordingly, We
AFFIRM the district court.
/1 While McPhaul does not dispute her performance
evaluations directly, she does claim that Horine
failed to sufficiently train her for the intake
clerk position, and required her to see more
clients than other intake clerks. But as we
explain in our analysis of McPhaul’s disparate
treatment claim, she fails to present any
evidence to support these allegations, and the
record actually discredits them.
/2 The record does contain, however, a January 17,
1996 note from Dr. Van Dellen of the Mayo Clinic
that simply states that McPhaul "could return to
work January 15, 1996." There is no indication of
any work restrictions or of any need for a work
accommodation.
/3 McPhaul only identifies Marcia Shock, a white
intake clerk, as a member of an unprotected class
who was allegedly treated more favorably by
Horine. But Shock was not similarly situated to
McPhaul because Horine rated Shock’s performance
as "Average," which is a superior rating to
McPhaul’s "Below Average" and "Unsatisfactory"
ratings. McPhaul does not challenge Horine’s
performance evaluations. Also, at the time of her
discharge, McPhaul was paid over $14.00 per hour
while Shock was paid $11.00 per hour.
/4 Horine claims that neither McPhaul nor Shock made
such a request, and thus no such accommodation
was granted at all. We note that even if Horine
did grant Shock’s request on a first come, first
served basis, that would be a legitimate business
decision that is beyond our purview. See McCoy v.
WGN Continental Broadcasting Co., 957 F.2d 368,
373 (7th Cir. 1992) (this court does not sit as a
super personnel department to review an
employer’s business decisions).
/5 And we have already established that McPhaul
provided no medical evidence to support her
request for a reduced schedule, and thus Horine
had no compelling reason to grant it.
/6 Because section 1983 claims generally follow "the
contours of Title VII claims," we will apply the
same "hostile environment" standard that is
applied in Title VII cases. King v. Board of
Regents of University of Wisconsin System, 898
F.2d 533, 537 (7th Cir. 1990).
/7 Horine is white.
/8 McPhaul also argues that we must consider
Horine’s alleged failure to protect her from
Shock’s offensive remarks as further evidence of
McPhaul’s disparate treatment claim. Because we
conclude that no reasonable jury could find that
Shock’s remarks created an objectively hostile
environment, or that Horine was somehow motivated
by racial animus to endorse them, our
consideration of these allegations (individually,
and collectively with the other six alleged
instances of disparate treatment) does not change
our conclusion that McPhaul’s disparate treatment
claim fails.
| {
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Order entered June 10, 2019
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00038-CV
BASIL BROWN, Appellant
V.
ROBERT HAWKINS, Appellee
On Appeal from the County Court At Law No. 1
Kaufman County, Texas
Trial Court Cause No. 16C-0127
ORDER
Appellant has been declared a vexatious litigant and is required to obtain permission from the
local administrative judge to file this appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 11.103(a).
Before the Court is appellant’s May 28, 2019 motion to proceed in this appeal. Appellant states that
he attempted to obtain an order from the Honorable Casey Blair, Presiding Judge of the 86th Judicial
District Court. According to appellant, Judge Blair informed appellant that he was not the
appropriate local administrative judge to grant appellant permission to appeal.
Under section 25.1312(f) of the Government Code, a district judge serves as the local
administrative judge for the district and statutory county courts in Kaufman County. See TEX.
GOV’T CODE ANN. § 25.1312(f). Although the webpage for the 422nd Judicial District Court
states that Judge Michael Chitty is the local administrative judge, the current local administrative
district judge for Kaufman County is Judge Blair. See https://www.txcourts.gov/judicial-
directory/.
Accordingly, we ORDER Judge Blair to consider and sign a written order on appellant’s
request for permission to appeal WITHIN TWENTY DAYS of the date of this order. If Judge
Blair signs an order denying appellant permission to appeal, appellant may apply for a writ of
mandamus with this Court not later than the thirtieth day after the date of the order. See TEX. CIV.
PRAC. & REM. CODE ANN. § 11.102(f).
We ORDER Rhonda Hughey, Kaufman County District Clerk, to file, WITHIN
TWENTY-FIVE DAYS of the date of this order, a supplemental clerk’s record containing
Judge Blair’s order.
We DIRECT the Clerk of this Court to send a copy of this order to Judge Blair; Ms.
Hughey; and all parties.
/s/ BILL WHITEHILL
JUSTICE
| {
"pile_set_name": "FreeLaw"
} |
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