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People v Wassell (2019 NY Slip Op 03187) People v Wassell 2019 NY Slip Op 03187 Decided on April 26, 2019 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on April 26, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND TROUTMAN, JJ. 395.1 KA 18-01593 [*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, vBENJAMIN M. WASSELL, DEFENDANT-APPELLANT. JAMES OSTROWSKI, BUFFALO, FOR DEFENDANT-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (MATTHEW B. KELLER OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Chautauqua County Court (Michael L. D'Amico, A.J.), rendered May 30, 2014. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the third degree and criminal sale of a firearm in the third degree (two counts). It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the indictment is dismissed and the matter is remitted to Chautauqua County Court for proceedings pursuant to CPL 470.45. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the third degree (Penal Law § 265.02 [7]) and two counts of criminal sale of a firearm in the third degree (§ 265.11 [1], [2]). The charges arose from defendant's sale of a Del-Ton AR-15 semiautomatic rifle to an undercover investigator. Pursuant to Penal Law § 265.00 (22), the rifle is classified as an "assault weapon" inasmuch as it is able to accept a detachable magazine and has a telescoping stock, a conspicuous pistol grip, a bayonet mount, and a muzzle break. The Attorney General of the State of New York obtained an indictment against defendant and prosecuted the matter through trial and sentencing. Defendant contends that the Attorney General lacked the authority to prosecute him for the crimes charged. As an initial matter, defendant's challenge to the Attorney General's authority presents a question of jurisdiction, which defendant was not required to preserve for our review (see generally People v Glanda, 5 AD3d 945, 947 [3d Dept 2004], lv denied 3 NY3d 640 [2004], reconsideration denied 3 NY3d 674 [2004], cert denied 543 US 1093 [2005]; People v Codina, 297 AD2d 539, 540-541 [1st Dept 2002], lv dismissed 98 NY2d 767 [2002], reconsideration denied 99 NY2d 556 [2002]; People v Fox, 253 AD2d 192, 193-194 [3d Dept 1999], lv denied 93 NY2d 1018 [1999]). It is well settled that the Attorney General lacks general prosecutorial authority and has the power to prosecute only where specifically permitted by statute (see Della Pietra v State of New York, 71 NY2d 792, 796-797 [1988]). As relevant here, Executive Law § 63 (3) grants the Attorney General prosecutorial authority "[u]pon request of . . . the head of any . . . department, authority, division, or agency of the state" (emphasis added). Although the People assert that the Attorney General had authority to prosecute this matter under section 63 (3) based on a request made by the State Police, such a request would confer that authority only if made by the head of the division, i.e., the Superintendent of State Police (see People v Gilmour, 98 NY2d 126, 133 [2002]; see generally People v Rogers, 157 AD3d 1001, 1002 [3d Dept 2018], lv denied 30 NY3d 1119 [2018]; People v Marketing & Adv. Servs. Ctr. Corp., 272 AD2d 982, 982 [4th Dept 2000], lv denied 95 NY2d 761 [2000]). Moreover, "the State bears the burden of showing that the [division or] agency head has asked for the prosecutorial participation of the Attorney General's office" (Gilmour, 98 NY2d at 135). Here, the stipulated record on appeal does not establish that the Superintendent of State Police requested that the Attorney General prosecute this case. Indeed, there is no letter from the Superintendent in the record (see id. at 134; cf. Rogers, 157 AD3d at 1002; Marketing & Adv. Servs. Ctr. Corp., 272 AD2d at 982), nor is there any other showing in the record that a request came from the Superintendent himself. Because the People failed to establish that the Attorney General had authority to secure the indictment and prosecute the case, we conclude that the judgment must be reversed and the indictment dismissed (see Gilmour, 98 NY2d at 135). We note that the People, for the first time through post-argument submissions, have provided this Court with a letter from the Superintendent to the Attorney General requesting assistance in this case. Nevertheless, the existence of that letter was not raised in the People's brief, and thus the argument that the letter establishes the Attorney General's authority to prosecute is not properly before us (see generally Kingsley v Price, 163 AD3d 157, 164-165 [4th Dept 2018]). In light of our determination, we do not address defendant's remaining contentions. Entered: April 26, 2019 Mark W. Bennett Clerk of the Court	{ "pile_set_name": "FreeLaw" }
Case: 15-40168 Document: 00513242081 Page: 1 Date Filed: 10/22/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 15-40168 Conference Calendar United States Court of Appeals Fifth Circuit FILED October 22, 2015 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff-Appellee v. PEDRO CRUZ-GRANADOS, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 7:14-CR-910-1 Before HIGGINBOTHAM, DENNIS, and HIGGINSON, Circuit Judges. PER CURIAM: * Appealing the judgment in a criminal case, Pedro Cruz-Granados raises an argument that he concedes is foreclosed by United States v. Martinez-Lugo, 782 F.3d 198, 204-05 (5th Cir. 2015), petition for cert. filed (June 19, 2015) (No. 14-10355). In Martinez-Lugo, 782 F.3d at 204-05, we held that an enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) for a prior conviction of a drug trafficking offense is warranted regardless whether the conviction for the prior * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 15-40168 Document: 00513242081 Page: 2 Date Filed: 10/22/2015 No. 15-40168 offense required proof of remuneration or commercial activity. Accordingly, the Government’s unopposed motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED. 2	{ "pile_set_name": "FreeLaw" }
929 F.2d 694 Spataro (Alverda M.), Estate of Spataro (John)v.Goodyear Tire & Rubber Company, United Rubber, Cork,Linoleum & Plastic Workers of America, AFL-CIO,CFC, Local Union 26 Nos. 90-3091. United States Court of Appeals,Fourth Circuit. MAR 25, 1991 Appeal From: D.Md., 735 F.Supp. 172 1 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
535 S.W.2d 651 (1976) Lindsey Henton BENTLEY, Appellant, v. The STATE of Texas, Appellee. No. 51851. Court of Criminal Appeals of Texas. April 20, 1976. 652 Daniel H. Benson, Lubbock, for appellant. Alton R. Griffin, Dist. Atty. and Mark L. Withrow, Asst. Dist. Atty., Lubbock, Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State. OPINION ODOM, Judge. This appeal is from an order revoking probation. Appellant was convicted of possession of marihuana on September 28, 1971. Punishment was assessed at eight years. Imposition of sentence was suspended and probation granted. Among the conditions of probation was the requirement that appellant: "(a) Commit no offense against the laws of this or any other State or the United States. . . ." On February 25, 1975, the State filed a motion to revoke probation, alleging that: "On or about the 22nd day of February, A.D.1975, in Lubbock County, Texas, after having heretofore been placed on probation, Probationer did then and there appear in a public place, to-wit: a Gulf Service Station located at the intersection of Brownfield Highway and Quaker Avenue in the City of Lubbock, Lubbock County, Texas, under the influence of Alcohol to the degree that the said LINDSEY HENTON BENTLEY might endanger himself and others." Following a hearing, the trial court found that appellant had violated condition (a) of his probation, as alleged in the State's motion to revoke. The trial court accordingly revoked his probation, reducing his sentence to three years. The sole ground of error challenges the sufficiency of the evidence to support the trial court's finding that he was guilty of the offense of public intoxication. V.T.C.A. Penal Code, Sec. 42.08 provides in pertinent part: "(a) An individual commits an offense if he appears in a public place under the influence of alcohol or any other substance, to the degree that he may endanger himself or another. . . ." It is not contested that appellant at the time of his arrest was in a public place, as that term is defined in V.T.C.A. Penal Code, Sec. 1.07(a)(29). Further, appellant does not assert that the evidence was insufficient to show that he was under the influence of alcohol; he himself testified that he had had three drinks of whisky and Sevenup at a tavern shortly before the arrest. Although he denied that he was "drunk", he admitted that he could "feel the alcohol." Appellant argues, rather, that there was no evidence that he was under the influence of alcohol "to the degree that he may endanger himself or another." The arresting officer testified that when he entered the service station appellant was sitting in a chair in the office. His testimony continued as follows: "Q. [by the prosecutor]: Did you notice anything unusual about him? "A. [by officer Adcock]: When we walked in the office Mr. Bentley was seated and when he saw us he stood up and he had to hold his hand on the desk as he was swaying just a little bit. "Q. All right. What else did you notice? "A. We noticed that he smelled strongly of alcohol, his eyes were bloodshot. "Q. Did you speak to him? "A. Yes, sir, we did. "Q. Did you notice anything about his speech? 653 "A. His speech was slurred, very slurred. "Q. All right. Then what happened? "A. We askedsince the office was very little, we asked him to step out into the front part of the station. "Q. What did you notice at that time? "A. When he started walking out toward the station he had to hold against the wall as he was swaying coming out of the station. "Q. All right. Then what happened? "A. We asked the subject his name, he did state it, we asked him had he been drinking and he said yes, that he had been over to the Comix Club drinking beer. "Q. All right, then what happened? "A. We talked to the subject further, it was hard to understand him, his speech was slurred, so we bothsince he couldn't stand up by himself, we each me and Officer McNeice, we took hold of his arms and led him out to the police car, he was weaving and couldn't stand on his own power. "* * * "Q. And did you form an opinion on the night of February 22, 1975 as to whether or not Mr. Bentley was in fact intoxicated? "A. Yes, sir, I did. "Q. And what was that opinion? "A. That he was intoxicated. "* * * "Q. Okay. Officer, why did you place Mr. Bentley under arrest? "A. Because he was intoxicated." Appellant denied that he was so drunk that he could not walk without assistance. He testified that at the time of the arrest he was attempting to telephone his father. Evidence relating to circumstances that appellant may have endangered himself or another was contained in his own testimony upon direct examination. "Q. [by defense attorney]: All right. Will you tell the Court why you were at the gas station and what took place there? "A. [by appellant] Well, I went to get some snow chains to put on my tires because it was snowing very heavy and my Dad called while I was there and he said I couldn't borrow those snow chains. "Q. You wanted to borrow snow chains from him? "A. Yes, sir. "Q. All right. "A. And I told him I needed some clothes, I was fixing to come home and get some clothes and he said he would just bring them to me and while I was waiting that is when the officer's came." The trial judge construed this testimony and the other evidence in this case, as he stated when revoking probation, as follows: "I heard you testify a few moments ago about calling your father about chains for your tires for your car. I couldn't help but shudder to think that if you had got those chains, maybe we would have you killing somebody on the streets that night. You know as well as I know that a person in your condition, the danger that you afford to the public. Now, you were placed on probation under certain terms and conditions; part of those terms and conditions were meant to help rehabilitate you. The other part were terms and conditions set up to help protect the public and certainly having you moving around in this community in a drunken condition is a danger to the community." We find the trial court's evaluation of the evidence reasonable and further find no abuse of discretion in the decision to revoke probation. The dangers of which the trial judge spoke were supportive of the conclusion that appellant was under the influence of alcohol to the degree that he might well have endangered himself and others. The judgment is affirmed.	{ "pile_set_name": "FreeLaw" }
FILED May 31 2018, 10:23 am CLERK Indiana Supreme Court Court of Appeals and Tax Court ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Alicia M. O’Keefe Curtis T. Hill, Jr. Law Offices of Richard D. Martin & Attorney General of Indiana Associates Katherine Cooper Frankfort, Indiana Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Tyler Dale Knutson, May 31, 2018 Appellant-Defendant, Court of Appeals Case No. 12A04-1709-CR-2246 v. Appeal from the Clinton Superior Court State of Indiana, The Honorable Justin H. Hunter, Appellee-Plaintiff Judge Trial Court Cause No. 12D01-1704-F5-412 Vaidik, Chief Judge. Case Summary [1] In this interlocutory appeal, Tyler Dale Knutson challenges the trial court’s denial of his motion to dismiss his charge for Level 5 felony unlawful possession of a syringe. Because we conclude that the offense of unlawful Court of Appeals of Indiana \| Opinion 12A04-1709-CR-2246 \| May 31, 2018 Page 1 of 8 possession of a syringe cannot be enhanced to a Level 5 felony based on a prior conviction pursuant to Indiana Code section 16-42-19-27 and can only be charged as a Level 6 felony, we reverse the trial court’s denial of Knutson’s motion to dismiss and order the court to dismiss the Level 5 felony enhancement. Facts and Procedural History [2] In April 2017, the State charged Knutson with unlawful possession of a syringe, which is a Level 6 felony under Indiana Code section 16-42-19-18. Appellant’s App. Vol. II p. 10.1 The State filed a separate document to enhance the charge to a Level 5 felony based on a prior conviction pursuant to Indiana Code section 16-42-19-27. Id. at 9.2 Knutson filed a motion to dismiss, arguing that there was “no[] statutory authority for elevation of this offense from a level 6 felony, to a level 5 felony, based upon a prior conviction for the offense.” Id. at 43. Following a hearing, the trial court denied Knutson’s motion to dismiss. At Knutson’s request, the trial court certified its order for interlocutory appeal, and this Court accepted jurisdiction of the appeal. 1 This count is labeled a Level 5 felony, but the body of the charging information alleges a Level 6 felony. 2 The State also charged Knutson with Level 6 felony possession of a narcotic drug (Fentanyl), but this charge is not at issue in this appeal. Court of Appeals of Indiana \| Opinion 12A04-1709-CR-2246 \| May 31, 2018 Page 2 of 8 Discussion and Decision [3] The issue is whether unlawful possession of a syringe can be elevated from a Level 6 felony to a Level 5 felony based on a prior conviction pursuant to Indiana Code section 16-42-19-27. Matters of statutory interpretation, which inherently present a pure question of law, are reviewed de novo. Shepard v. State, 84 N.E.3d 1171, 1173 (Ind. 2017). [4] In interpreting a statute, our goal is to determine and give effect to the intent of the legislature. State v. IBM Corp., 964 N.E.2d 206, 209 (Ind. 2012). We start with the plain language of the statute, giving its words their ordinary meaning and considering the structure of the statute as a whole. Ind. Alcohol & Tobacco Comm’n v. Spirited Sales, LLC, 79 N.E.3d 371, 376 (Ind. 2017). No word or part of the statute should be rendered meaningless if it can be reconciled with the rest of the statute. Id. When the legislature amends a statute, we presume that it intended to change the law unless it clearly appears that the amendment was made only to express the original intention of the legislature more clearly. Tedlock v. State, 656 N.E.2d 273, 276 (Ind. Ct. App. 1995). [5] Indiana Code chapter 16-42-19 sets forth several criminal offenses, most of which concern the possession, use, and sale of legend drugs.3 With one exception, none of the sections in Chapter 19 sets forth the offense level for a 3 For purposes of Indiana Code article 16-42, “legend drug” “means a drug that is: (1) subject to 21 U.S.C. 353(b)(1); (2) listed in the Prescription Drug Product List . . .; or (3) insulin.” Ind. Code § 16-18-2-199. Court of Appeals of Indiana \| Opinion 12A04-1709-CR-2246 \| May 31, 2018 Page 3 of 8 violation. See, e.g., Ind. Code § 16-42-19-13. Rather, Indiana Code section 16- 42-19-27 (“the general offense-level statute”) sets forth the offense levels for violations as follows: (a) Unless otherwise specified, a person who knowingly violates this chapter, except sections 25(b) and 30(c) of this chapter, commits a Level 6 felony. However, the offense is a Level 5 felony if the person has a prior conviction under this subsection or IC 16-6-8-10(a) before its repeal. (b) A person who violates section 25(b) of this chapter commits dealing in an anabolic steroid, a Level 5 felony. However, the offense is a Level 4 felony if the person delivered the anabolic steroid to a person who is: (1) less than eighteen (18) years of age; and (2) at least three (3) years younger than the delivering person. (c) A person who violates section 30(c) of this chapter commits a Class A infraction. (Emphasis added). The only section in Chapter 19 that includes an offense level is Indiana Code section 16-42-19-18 (“the syringe-possession statute”), which criminalizes the possession of a syringe as follows: (a) A person may not possess with intent to: (1) violate this chapter; or Court of Appeals of Indiana \| Opinion 12A04-1709-CR-2246 \| May 31, 2018 Page 4 of 8 (2) commit an offense described in IC 35-48-4; a hypodermic syringe or needle or an instrument adapted for the use of a controlled substance or legend drug by injection in a human being. (b) A person who violates subsection (a) commits a Level 6 felony. [6] Knutson contends that the general offense-level statute—which allows for a Level 6 felony to be enhanced to a Level 5 felony based on a prior conviction— does not apply to the syringe-possession statute because the general offense- level statute begins with “Unless otherwise specified” and the syringe- possession statute (which is the only section in Chapter 19 that includes an offense level) “otherwise specifies” that possession of a syringe is a Level 6 felony. Knutson claims that reading the two statutes any other way would make the phrase “Unless otherwise specified” meaningless as it relates to the syringe-possession statute. The State does not dispute Knutson’s claim that reading the statutes any other way would render the phrase meaningless. Rather, the State argues that to read the phrase as Knutson suggests would be “illogical” because there is “no reason why the legislature would not intend for the enhancement based upon having a prior conviction to apply to unlawful possession of a syringe in the same manner that it would apply to the other offenses contained in chapter 19.” Appellee’s Br. p. 12. But when the history of these two statutes is considered, it is apparent that this is precisely what the legislature intended. Court of Appeals of Indiana \| Opinion 12A04-1709-CR-2246 \| May 31, 2018 Page 5 of 8 [7] During the 2015 legislative session, the General Assembly, in response to this Court’s decision in Bookwalter v. State, 22 N.E.3d 735 (Ind. Ct. App. 2014), trans. denied, amended the syringe-possession statute to add that a person cannot possess a syringe with intent to inject a controlled substance. In Bookwalter, the defendant possessed a syringe with intent to inject heroin, and because heroin is not a legend drug, we reversed his conviction for unlawful possession of a syringe. The following changes were made to the syringe-possession statute, which became effective July 1, 2015 (strike through indicates deletions, bolding indicates additions): (a) A person may not possess or have under control with intent to: (1) violate this chapter; or (2) commit an offense described in IC 35-48-4; a hypodermic syringe or needle or an instrument adapted for the use of a controlled substance or legend drug by injection in a human being. (b) A person who violates subsection (a) commits a Level 6 felony. P.L. 187-2015, § 23. In the same public law, in the very next section, the legislature made the following amendment to the general offense-level statute: (a) Unless otherwise specified, a person who knowingly violates this chapter, except sections 24, 25(b), and 30(c) of this chapter, Court of Appeals of Indiana \| Opinion 12A04-1709-CR-2246 \| May 31, 2018 Page 6 of 8 commits a Level 6 felony. However, the offense is a Level 5 felony if the person has a prior conviction under this subsection or IC 16-6-8-10(a) before its repeal. ***** Id. at § 24. [8] Thus, in back-to-back sections of the same public law, the legislature specified that it is a Level 6 felony to possess a syringe (but notably did not add offense levels to any of the other sections in Chapter 19) and then added the phrase “Unless otherwise provided” to the general offense-level statute. Given these back-to-back amendments, it is clear to us that the legislature did not intend for the general offense-level statute to apply to unlawful possession of a syringe. This conclusion is bolstered by the fact that unlawful possession of a syringe was already a Level 6 felony before the 2015 amendments. In other words, if we were to adopt the State’s position that the general offense-level statute— which provides that a person who violates Chapter 19 “commits a Level 6 felony”—applies to unlawful possession of a syringe, then newly added subsection (b) of the syringe-possession statute—which identically provides that a person who unlawfully possesses a syringe “commits a Level 6 felony”— would be completely unnecessary and meaningless. [9] As for the State’s argument that there is “no reason why the legislature would not intend” for the Level 5 felony enhancement to apply to unlawful possession of a syringe, we find that the 2015 amendments to these statutes are in line with Court of Appeals of Indiana \| Opinion 12A04-1709-CR-2246 \| May 31, 2018 Page 7 of 8 the General Assembly’s comprehensive revisions to our criminal code, which included reducing penalties for certain drug offenses. See generally P.L. 158- 2013. Although we can understand why the legislature might want to penalize the possession of a syringe as a Level 6 felony—which has a sentencing range of six months to two-and-a-half years, Ind. Code § 35-50-2-7—we can see why it would not want to crowd our prisons with drug addicts by making it a Level 5 felony, which has a significantly higher sentencing range of one to six years, Ind. Code § 35-50-2-6. [10] Accordingly, we agree with Knutson that unlawful possession of a syringe cannot be enhanced to a Level 5 felony pursuant to the general offense-level statute. We therefore reverse the trial court’s denial of Knutson’s motion to dismiss and order the court to dismiss the Level 5 felony enhancement.4 [11] Reversed and remanded. Barnes, J., and Pyle, J., concur. 4 The State should also amend the charging information for unlawful possession of a syringe to specify that it is a Level 6 felony. Court of Appeals of Indiana \| Opinion 12A04-1709-CR-2246 \| May 31, 2018 Page 8 of 8	{ "pile_set_name": "FreeLaw" }
230 So.2d 402 (1970) Elwood FONTENOT, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellee. No. 2954. Court of Appeal of Louisiana, Third Circuit. January 15, 1970. Rehearing Denied February 4, 1970. Preston N. Aucoin, Ville Platte, for plaintiff-appellant. Davidson, Meaux, Onebane & Donohoe, by Burgess E. McCranie, Jr., Lafayette, for defendant-appellee. Before TATE, HOOD, and MILLER, JJ. HOOD, Judge. This is a workmen's compensation suit instituted by Elwood Fontenot against his employer's insurer, Liberty Mutual Insurance Company. Plaintiff alleges as a basis for his claim that he is totally and permanently disabled. Judgment was rendered by the trial court in favor of defendant, and plaintiff has appealed. On this appeal, plaintiff abandons his claim that he is totally and permanently disabled. He contends, however, that the trial court erred in failing to award him compensation benefits at the rate of $35.00 per week for the loss of a foot. Alternatively, he contends that he is entitled to recover 403 the benefits provided in the Workmen's Compensation Act for: (1) The permanent partial loss of the use or function of a foot; or (2) for the loss of a great toe; or (3) for total disability from the date of the accident until February 10, 1969. The accident which precipitated this suit occurred on October 8, 1968, while Fontenot was working as a common laborer for defendant's insured, Valley Canning Company, in Evangeline Parish. On that date, while plaintiff was in the course of his employment, a tub of sweet potatoes weighing about 700 pounds fell on the great toe of his right foot and injured that toe. Plaintiff was examined by Dr. Reed A. Fontenot, a general practitioner, immediately after the accident occurred, and he was treated by that physician for several weeks thereafter. He performed no work of any kind from the date of the accident until December 1, 1968. He obtained employment as a truck driver for Evangeline Wholesale on the last-mentioned date, and he held that job until February 13, 1969. Thereafter, during the latter part of March or the first part of April, 1969, he obtained employment as a galley hand, in connection with offshore oilfield work, and he has continued to do that type of work since that time. Fontenot testified that his injured toe has bothered him continuously since the date of the accident, that he has been unable to wear a shoe with a steel cap over the toe, and that his right great toe hurts when he puts weight on it. He stated that he was able to perform his duties as a truck driver for Evangeline Wholesale because he did not have to stand on his feet very much, and that he quit that job because "I put it again on my toe, I couldn't stand it." We interpret this statement to mean that something else fell or came to rest on his injured toe, and that it caused him to suffer pain. Dr. Fontenot is the only medical expert who testified in this case. He found that as a result of the accident plaintiff's toe nail had been knocked out, a part of the nail bed was avulsed, the toe was lacerated on each side and the bone was exposed. There were no fractures of any of the bones of the foot or toes. The doctor brought the flesh on each side of the toe together and applied sutures. In due course the toe healed, but only a small part of the toe nail remains, and this condition is permanent. The treating physician testified that he last treated plaintiff on December 13, 1968, and that he instructed him at that time to return on December 26 for further examination or treatment. The doctor felt that plaintiff had not quite recovered from his injury by December 13, but he anticipated at that time that plaintiff would be recovered by December 26, and that he would be able to discharge him at that time. Plaintiff did not return on December 26, as requested. Instead, he saw Dr. Fontenot next on February 5, 1969, and at that time the doctor found that Fontenot had recovered and that he then was able to return to his original employment. The doctor stated that he told his bookkeeper to "send something in on it" and that pursuant to that instruction the "final bill and report" was sent in on February 10. Dr. Fontenot concedes that the residual of plaintiff's injury, consisting of a short toe nail, will cause him some inconvenience and it may cause him some minor pain at times. He feels, however, that the inconvenience and discomfort which he does or may experience is temporary and is not disabling. He was unable to assign any permanent partial disability or partial loss of function to the toe or foot. Plaintiff alleges that he has received "only about eight weeks of compensation" from defendant. At the trial he testified that he received only seven compensation checks of $35.00 each. Defendant alleges in its answer that it paid plaintiff compensation benefits covering a period of eleven weeks and two days following the accident, but no evidence of any kind 404 was presented to show that any such payments were made. The only evidence in the record relating to the amount of the compensation payments which were made, therefore, was the above admission of plaintiff. Payment or setoff is an affirmative defense which must be specially pleaded and proved by the defendant. LSA-C.C.P. Art. 1005; Mochitta v. Lemak, 165 So.2d 568 (La.App. 1 Cir. 1964). In the instant suit, we conclude from the evidence presented that plaintiff has received payment of compensation benefits for a period of only seven weeks from and after the date of the accident. The trial judge stated in his written reasons for judgment that the only question presented was "whether or not plaintiff was disabled for a longer period than February 10, 1969," and he ultimately concluded that "the plaintiff failed to prove any disability whatsoever subsequent to February 10, 1969." On the basis of that conclusion, judgment was rendered by the trial court rejecting plaintiff's demands and dismissing the suit at his costs. We find no merit to plaintiff's primary argument that he is entitled to compensation benefits of $35.00 per week for 125 weeks, under the provision of LSA-R. S. 23:1221(4) (g), based on a finding that he has sustained the loss of a foot. The evidence simply does not show that he has sustained the loss of a foot, or any impairment in the use or function of his foot, as a result of this accident. For the same reason we reject plaintiff's first and second alternate demands. His first alternate demand is that he be awarded benefits of $10.00 per week for 125 weeks, under LSA-R.S. 23:1221(4) (o), on the ground that he has sustained the permanent partial loss of the use or function of his right foot; and his second alternate is that he be awarded compensation at the rate of $35.00 per week for 20 weeks, under LSA-R.S. 23:1221(4) (c), for the loss of a great toe. We find that plaintiff has not sustained the loss of a toe or the permanent partial loss of the use or function of a foot. Plaintiff's third alternate demand is that he be awarded compensation benefits at the rate of $35.00 per week from the date of the accident until February 10, 1969, that being the date on which the final report of the treating physician was submitted. Fontenot contends that he was totally disabled within the meaning of the workmen's compensation act until February 10, 1969, and that he thus is entitled to recover under LSA-R.S. 23:1221(1) for temporary total disability during that period of time. He concedes that credit must be given for the payments which have been made. The plaintiff in a workmen's compensation case has the burden of proving his claim with legal certainty by a preponderance of the evidence, as does the plaintiff in practically every other type of action. When his demand for compensation benefits is based solely on the ground that he suffers pain when he works, then he will be held to be disabled within the purview of the compensation act only if he suffers substantial pain. Hebert v. Your Food Processing & Warehouse, Inc., 248 La. 197, 177 So.2d 286 (1965). We think the evidence establishes that plaintiff was totally disabled within the meaning of the compensation act from the date of the accident until December 26, 1968. The evidence does not show that he was disabled after the last-mentioned date. He, in fact, had been employed and was working on that date, and the fact that he did not return to his treating physician for further treatment or a check up on December 26, as requested, caused the doctor to assume, as we do, that he had recovered by that time. Our conclusion is that plaintiff is entitled to recover compensation benefits at the rate of $35.00 per week from the date of the accident until December 26, 1968, that being a period of more than eleven weeks. Defendant, of course, is entitled to *405 credit for the payments which have been made. For the reasons herein assigned, the judgment appealed from is reversed, and judgment is hereby rendered in favor of plaintiff, Elwood Fontenot, and against defendant, Liberty Mutual Insurance Company, condemning defendant to pay compensation benefits to plaintiff at the rate of $35.00 per week from October 8 until December 26, 1968, with legal interest on each payment from the time it became due until paid, subject to a credit of $245.00, representing payment of all compensation payments due during the first seven weeks of that period. Defendant also is condemned to pay all costs incurred in the trial court and on this appeal. The expert witness fee of Dr. Reed A. Fontenot is fixed at $50.00, and is taxed as costs. Reversed and rendered. On Application for Rehearing. En Banc. Rehearing denied.	{ "pile_set_name": "FreeLaw" }
57 Cal.Rptr.3d 922 (2007) 150 Cal.App.4th 83 The PEOPLE, Plaintiff and Respondent, v. Jon Gary SCHNABEL, Defendant and Appellant. No. C052400. Court of Appeal of California, Third District. April 24, 2007. 923 James Joseph Lynch, Jr., Sacramento, for Defendant and Appellant. Edmund G. Brown, Jr., and Bill Lockyer, Attorneys General, Dane R. Gillette and Mary Jo Graves, Chief Assistant Attorneys General, Michael P. Farrell, Senior Assistant Attorney General, Charles A. French, Supervising Deputy Attorney General, Jennifer M. Poe, Deputy Attorney General, for Plaintiff and Respondent. Certified for Partial Publication.[] ROBIE, J. A jury found defendant Jon Gary Schnabel guilty of 15 counts of child molestation involving three different girls. The trial court sentenced him to state prison for 375 years to life. On appeal, defendant raises the following contentions:[1] (1) the court erred in admitting into evidence his prior sex offenses and in instructing the jury on their use; (2) trial counsel was ineffective; and (3) the court committed sentencing error. Disagreeing with these contentions, we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND A Molestation Of C.J. (counts one-five) C.J. met defendant when was she was 12 years old, and he was her parents' realtor. 924 She started working for him doing "chores" to earn money. On 8 to 10 different occasions during the summer of 1995, defendant had C.J. rub his penis until ejaculation and then had C.J. apply wart medication. During one of these episodes, defendant made C.J. press her lips against his penis. During another episode, defendant made her "tickle [his] balls." B Molestation Of T.B. (counts six-ten) T.B. was a 20 year-old college student at the time of trial. Before she moved away to college, T.B. and her family lived a few houses away from defendant in Citrus Heights. Defendant was "good friends" with her family, and he was like an uncle to her. Defendant molested her for the first time when she was approximately seven years old. Defendant unzipped his pants, pulled out his penis, and "suggested that [T.B.] touch it." She complied. During other incidents at defendant's house, he would ask her to put wart medication on his penis, and again she complied. These incidents occurred from the time T.B. was 7 years old to the time she was 12. There were incidents when T.B. was 9 or 10 years old when defendant made her put her mouth on his penis, and he put his hand up her skirt or shorts and stroked her vagina. At some point, defendant moved to Granite Bay. T.B. recalled one incident there when she was 11 years old and defendant touched her thigh, unzipped his pants, and directed her to apply medication to his penis. C Molestation Of S.J. (counts eleven-fifteen) S.J. was 16 years old at the time of trial. She met defendant was she was seven or eight years old, and he was her parents' realtor. She frequently visited defendant's house with her family. On 5 to 10 occasions, defendant had her move her hand up and down his penis so it would become "big" so he could apply wart medication. Defendant made S.J. "watch a video on how to give oral sex" and look at Playboy magazines. He later made her put her mouth on his penis. D Prior Acts Of Molestation N.J. was 49 years old at the time of trial. She met defendant when she was seven years old, and he was living in her neighborhood with a family friend of NJ.'s. Once, while N.J. was at her friend's house, defendant exposed his penis, testicles, and legs, told her that he had hurt his leg, and said that he wanted her to "rub it for him." When N.J. started rubbing his leg, defendant took NJ.'s hand, put it on his penis, and with his hand on top of hers, starting massaging his penis. He also had her rub his inner thigh and put her lips on his penis. As a result of these acts, defendant pled guilty in 1963 to committing a lewd act on N.J. DISCUSSION I The Court Did Not Err In Admitting Into Evidence Defendant's Prior Sex Offenses And In Instructing The Jury On Their Use Defendant contends the admission of his prior sex offenses pursuant to Evidence Code section 1108 denied him a fair trial and violated his right to due process 925 under the United States Constitution. He further contends the instruction regarding the prior sex offenses was "structural" error requiring automatic reversal of his convictions. We disagree. Defendant's constitutional challenge to Evidence Code section 1108 was rejected in People v. Falsetta (1999) 21 Cal.4th 903, 922, 89 Cal.Rptr.2d 847, 986 P.2d 182. We are bound to follow it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)[2] As to defendant's challenge to the instruction, it is based on his assertion that the instruction on the use of prior sex offenses "wholly swallowed the `beyond reasonable doubt' requirement." The California Supreme Court has rejected this argument in upholding the constitutionality of the 1999 version of CALJIC No. 2.50.01. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016, 130 Cal.Rptr.2d 254, 62 P.3d 601.) The version of CALJIC No. 2.50.01 considered in Reliford is similar in all material respects to CALCRIM No. 1191 (which was given here) in its explanation of the law on permissive inferences and the burden of proof.[3] We are in no position to reconsider the Supreme Court's holding in Reliford (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455, 20 Cal.Rptr. 321, 369 P.2d 937), and by analogy to Reliford, we reject defendant's argument regarding the jury instruction on use of his prior sex offenses. 926 II-III [] DISPOSITION The judgment is affirmed. SIMS, Acting P.J., and BUTZ, J., concur. NOTES [] Under California Rules of Court, rules 8.1105 and 8.1110, only the Factual and Procedural Background, part I of the Discussion, and the Disposition are certified for publication. [1] We address defendant's arguments only to the extent they are properly reflected in the headings and subheadings of his opening brief. As we have recently explained, "appellant's brief `must' `[s]tate each point under a separate heading or subheading summarizing the point....' [Citations.] This is not a mere technical requirement; it is `designed to lighten the labors of the appellate tribunals by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass.' [Citations.]" (In re S.C. (2006) 138 Cal.App.4th 396, 408, 41 Cal. Rptr.3d 453.) [2] Defendant's attack on the constitutionality of Evidence Code section 1108 is based on the United State Supreme Court's construction of the Federal Rules of Evidence. We note that Evidence Code section 1108 was modeled on a federal rule of evidence that has also withstood such attacks. (People v. Falsetta, supra, 21 Cal.4th at pp. 912, 920, 89 Cal.Rptr.2d 847, 986 P.2d 182.) [3] The version of CALCRIM No. 1191 given to the jury in this case reads, in pertinent part, as follows: "You may consider [the uncharged sex offenses] evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely, that is, the uncharged crimes evidence. [¶] If you decide that the defendant committed the uncharged offense or offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit the sex offenses as charged here. [¶] If you conclude that the defendant committed the uncharged offense or offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged sexual offenses. The People must still prove each element of every charge beyond a reasonable doubt." The version of CALJIC No. 2.50.02 given to the jury in Reliford reads, in pertinent part, as follows: "If you find that the defendant committed a prior sexual offense in 1991 involving S[.]B[.], you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused, [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense in 1991 involving S[.]B[.], that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. The weight and significance of the evidence, if any, are for you to decide." (People v. Reliford, supra, 29 Cal.4th at p. 1012, 130 Cal.Rptr.2d 254, 62 P.3d 601.) [*] See footnote , ante.	{ "pile_set_name": "FreeLaw" }
Colorado Supreme Court Opinions \|\| May 11, 2015 Colorado Supreme Court -- May 11, 2015 2015 CO 29. No. 13SC127. Beren v. Beren. The Supreme Court of the State of Colorado 2 East 14th Avenue â¢ Denver, Colorado 80203 2015 CO 29 Supreme Court Case No. 13SC127 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 10CA2120 Petitioners: Miriam Beren and Robert Goodyear, Jr., in his capaciy as Personal Representative of the Estate of Sheldon K. Beren, and Concerning Joshua Beren, Dena Grossman, and The Estate of Cheryl Feldberger, v. Respondent/Cross-Petitioner: David Beren, Respondents: Zev Beren, Jonathan Beren, Daniel Beren, and Generation Skipping Trust and the Trustees of said trust. Judgment Affirmed in Part, Reversed in Part, and Remanded with Directions en banc May 11, 2015 Attorneys for Petitioner Miriam Beren: Hale Westfall, LLP Richard A. Westfall Peter J. Krumholz Aaron Solomon Denver, Colorado Attorney for Petitioner Robert M. Goodyear, Jr.: Carver Schwarz McNab Kamper & Forbes, LLC Peter C. Forbes Denver, Colorado Attorneys for Joshua Beren, Dena Grossman, and The Estate of Cheryl Feldberger: Sweetbaum Sands Anderson PC Alan D. Sweetbaum Katherine K. Kust Denver, Colorado Attorneys for Respondent/Cross-Petitioner David Beren: Blain Myhre LLC Blain D. Myhre Englewood, Colorado Attorneys for Respondents Zev Beren and Jonathan Beren: Fairfield and Woods, P.C. Charles F. Brega Lee Katherine Goldstein Scott T. Rodgers Denver, Colorado Wade Ash Woods Hill & Farley, P.C. James R. Wade Denver, Colorado No appearance by or on behalf of Daniel Beren. JUSTICE HOBBS delivered the Opinion of the Court. JUSTICE HOOD does not participate. Â Â¶1Â Â Â Â Â Â We granted certiorari to consider whether, and to what extent, the Colorado Probate Code displaces a probate courtâs authority to award an equitable adjustment supplementing a spouseâs elective share of the decedentâs estate.1 This case involves the probate courtâs protracted administration of an estate that, by date of final distribution, had grown in value from $73 million to more than $250 million. Concluding that it would be unfair for the elective share to be âfrozen in timeâ while extensive litigation concerning its computation eroded its value in relation to the appreciating estate, the probate court exercised its equitable authority by supplementing the elective share. The probate court determined that the spouse was entitled to an elective share of approximately $26 million, plus an equitable award of approximately $24.5 million,Â based on a 17.46% rate of return on the undistributed balance of her elective share, calculated to reflect appreciation and income to the entire estate. The court of appeals reversed the trial courtâs decision, ruling that the Probate Code displaces a courtâs equitable powers in the elective-share arena as a matter of law. In re Estate of Beren, 2012 COA 203M, Â¶ 21, __ P.3d __, as modified on denial of rehâg (Feb. 14, 2013). The court of appeals ordered the spouse to repay the entire $24.5 million equitable award, plus restitutionary interest from the date of distribution. Id. at Â¶ 143, 155â56. Â¶2Â Â Â Â Â Â Reading the elective-share statutes together with the probate courtâs equitable authority, we conclude that the Colorado Probate Codeâs plain language demonstrates that a particular statutory provision dealing with the spouseâs elective share, section 15-11-202(1), C.R.S. (2014), fixes the value of the property comprising the augmented estate on the decedentâs date of death. This specific provision controls over the general equitable authority the probate court may exercise under section 15-10-103, C.R.S. (2014). Accordingly, the probate court erred by linking its equitable award to appreciation and income to the entire augmented estate. Nevertheless, section 15-10-103 expressly reserves the probate courtâs equitable authority to the extent that it is not displaced by a specific statutory provision. On remand, the probate court has tools at its disposal to exercise equity consistent with the statutory elective-share framework. For example, the probate court may award interest or assess administrative expenses to take into account undue delay in distributing the elective share. Â¶3Â Â Â Â Â Â We affirm in part and reverse in part the judgment of the court of appeals and remand this case for further proceedings consistent with this opinion. We set aside theÂ court of appealsâ judgment requiring the spouse to repay the entire $24.5 million equitable award with interest. The probate court shall determine on remand what equitable relief is available to the spouse under the specific facts of this case. The probate court, in its discretion, may take additional evidence and argument, and may order further relief and enter a final judgment consistent with this opinion. I. Â¶4Â Â Â Â Â Â Sheldon K. Beren (âMr. Berenâ) died testate in 1996. He was survived by his wife of twenty-eight years, Miriam Beren (âMrs. Berenâ); his four sons from his previous marriage, David Beren, Zev Beren, Jonathan Beren, and Daniel Beren (âthe four sonsâ2); two children from Miriamâs previous marriage, whom Mr. Beren had adopted, Joshua Beren and Cheryl Beren Feldberger, who is now deceased; and one daughter from Sheldon and Miriamâs marriage, Dena Beren Grossman. Mr. Beren was the founder and sole shareholder of the oil and gas company Berenergy Corporation, the estateâs largest asset. In his will, Mr. Beren gave a life estate in most of his assets to his wife (in the form of a qualified terminable interest property trust (âQTIP trustâ)) and gave the residuary estate to the seven children, leaving management of the estate to his wife and Robert Goodyear (âthe personal representativeâ), an officer of Berenergy.Â Shortly after the will was admitted to probate, Mrs. Beren petitioned to take her statutory elective share in lieu of the life estate.3 Â¶5Â Â Â Â Â Â In January 2000, Mrs. Beren petitioned the probate court to determine the value of the augmented estate4 and, based on that value, the amount of her elective share.5 The four sons objected to her proposed calculation. For the next nine years, Mrs. Beren and the four sons contested the value of the augmented estate and the consequent value of her elective share, as well as the courtâs proposed exercise of equity. Due to these protracted legal disputes and the fact that the estate experienced substantial earnings during the litigation, the probate court determined that it would be unjust to freeze Mrs. Berenâs elective share while litigation prevented complete distribution and eroded its value in relation to the appreciating estate. Specifically, in December 2003, the court observed that âbecause the estate has experienced earnings during the pendency of this litigation, equity requires the Court provide Mrs. Beren an award.âÂ Â¶6Â Â Â Â Â Â In June 2007, recognizing that âboth the accumulation of excessive administration costs, as well as the passage of excessive time, have distorted the value of the elective share in this estate,â the probate court found that Mrs. Beren was entitled to an equitable adjustment to her elective share. The court determined that the estate was holding assetsâincluding the spouseâs elective shareâthat were appreciating over time and was also receiving income from its ownership of those assets. The court also determined that, but for unanticipated delay caused by persons other than herself, Mrs. Beren would have received the full balance of her elective share much earlier and would have been able to benefit from the same appreciation the estate experienced. Â¶7Â Â Â Â Â Â The probate court directed the personal representative to prepare dual valuations of estate appreciation and income. Specifically, in August 2009, the probateÂ court explained that it had directed the personal representative to determine values of the estate on May 1, 2000 and December 31, 2007 and calculate a rate of return during that period. It was the Courtâs intention that the calculation account for appreciation of assets and income to the estate over the selected period. The Court also intended that the calculation would result in a single sum that would be awarded to the widow to adjust for the inequities occasioned by the delays in final distribution to her of the entire elective share. (Emphasis added.) The personal representative retained two appraisers whose methodologies had already been confirmed as reliable by the court. Relying on these expert opinions, the court adopted a 17.46% internal rate of return, compounded monthly, which it applied to the undistributed balance of Mrs. Berenâs elective share between May 1, 2000, and December 31, 2007. The court awarded Mrs. Beren this equitable remedy in addition to her statutory elective share.Â Â Â¶8Â Â Â Â Â Â Following a hearing scheduled to facilitate quantification of the equitable adjustment, the court made specific findings supporting its exercise of equity: [T]he decedentâs children would be enriched at the expense of their mother if they were allowed to delay the distribution of the full elective share for over a decade, force distribution of cash to their mother while they took âin kindâ distributions, or continually reduce the value of the elective share by increasing administrative expenses through delay and obstruction. The probate court emphasized in its orders that â[i]t would be unfair for Mrs. Berenâs share to be âfrozen in timeâ so that all of the external events over which she had no control could erode her share.â Applying âprinciples of equity,â the probate court determined that Mrs. Beren was entitled an equitable award of approximately $24.5 million, based on the 17.46% rate of return on the undistributed balance of her elective share, in addition to her elective share of approximately $26 million. The court allocated the equitable award pro rata against each of the seven childrenâs shares.6 In 2010, after the probate court entered a final order approving the plan of distribution and closing the estate, the four sons appealed. Â¶9Â Â Â Â Â Â The court of appeals set aside the probate courtâs equitable adjustment. Estate of Beren, Â¶ 14. The court acknowledged that the probate court had equitable power under section 15-10-103, to the extent that the Probate Code had not displaced such power. Id.Â The court nevertheless concluded that the exercise of equity in this case was âat oddsâ with two provisions of the Probate Code. Id. First, section 15-11-202(1) fixes the value of an elective share at a pecuniary amount determined by the value of the decedentâs estate upon the date of death and is not subject to increases and decreases in the estateâs value during probate administration. Estate of Beren, Â¶Â¶ 22â25. Second, section 15-1-467(1), C.R.S. (2014), requires an executor to pay over any net probate income to trustees and legatees, neither of which includes an electing spouse. Estate of Beren, Â¶ 26. As such, the court reasoned, the Probate Code displaced the probate courtâs power in equity to grant an equitable award exceeding the amount that the elective-share statutes provided. Id. at Â¶ 27. II. Â¶10Â Â Â Â Â Â Reading the elective-share statutes together with the probate courtâs equitable authority, we conclude that the Colorado Probate Codeâs plain language demonstrates that a particular statutory provision dealing with the spouseâs elective share, section 15-11-202(1), fixes the value of the property comprising the augmented estate on the decedentâs date of death. This specific provision controls over the general equitable authority the probate court may exercise under section 15-10-103. Accordingly, the probate court erred by linking its equitable award to appreciation and income to the entire augmented estate. Nevertheless, section 15-10-103 expressly reserves the probate courtâs equitable authority to the extent that it is not displaced by a specific statutory provision. On remand, the probate court has tools at its disposal to exercise equity consistent with the statutory elective-share framework. A. Standard of Review Â¶11Â Â Â Â Â Â We review de novo questions of law concerning the construction and application of statutes. Hickerson v. Vessels, 2014 CO 2, Â¶ 10, 316 P.3d 620, 623. Where the interaction of common law and statutory law is at issue, we acknowledge and respect the General Assemblyâs authority to modify or abrogate common law, but we only recognize such changes when they are clearly expressed. Id. Unless a conflict with the statute exists, the pre-existing common law continues to apply. Id. To the extent that two statutory provisions conflict with each other, they should be construed, if possible, to give effect to both. Young v. Brighton Sch. Dist. 27J, 2014 CO 32, Â¶ 16, 325 P.3d 571, 577 (citing Â§ 2-4-205, C.R.S. (2014)). If different statutory provisions cannot be harmonized, the specific provision controls over the general provision. Telluride Resort & Spa, L.P. v. Colo. Depât of Revenue, 40 P.3d 1260, 1265 (Colo. 2002); Â§ 2-4-205 (âIf the conflict between the provisions is irreconcilable, the special . . . provision prevails . . . .â). Â¶12Â Â Â Â Â Â The power to fashion equitable remedies lies within the discretion of the trial court. Lewis v. Lewis, 189 P.3d 1134, 1140 (Colo. 2008). We will not disturb such rulings on review absent an abuse of discretion. Id. at 1141. A trial court necessarily abuses its discretion if its ruling is based on an erroneous view of the law. People v.Â Voth, 2013 CO 61, Â¶ 15, 312 P.3d 144, 148. We defer to a trial courtâs findings of fact so long as they are supported by the record. People ex rel. A.J.L., 243 P.3d 244, 249â50 (Colo. 2010). B. The Colorado Probate Codeâs Elective-Share Framework Â¶13Â Â Â Â Â Â The Colorado Probate Code, Â§Â§ 15-10-101 to 15-17-103, C.R.S. (2014), is modeled on the Uniform Law Commissionersâ Uniform Probate Code (âUPCâ), which Colorado originally adopted in 1974. The Probate Code grants a surviving spouse the right to elect against the decedentâs will and claim an elective share. Â§ 15-11-202. The elective share is a percentage of an amount called the âaugmented estate,â and the percentage increases with the length of the marriage, up to a maximum of fifty percent. Â§ 15-11-203, C.R.S. (2014). The augmented estate is the sum of the value of all property from: (1) the decedentâs net probate estate; (2) the decedentâs nonprobate transfers to others; (3) the decedentâs nonprobate transfers to the surviving spouse; and (4) the surviving spouseâs property and nonprobate transfers to others. Id. All of those property values are calculated based on their âfair market value as of the decedentâs date of death.â Â§ 15-11-201(11) (emphasis added). Â¶14Â Â Â Â Â Â Coloradoâs 1994 elective-share amendments brought its Probate Code into line with major revisions to the UPC. In revising the elective share, the framers of the UPC, and thus Coloradoâs General Assembly, set out to better reflect the contemporary view of marriage as an economic partnership. See tit. 15, art. 11, pt. 2, gen. cmt. p. 202, C.R.S. (2014) (adopting verbatim the general comment to the UPC). Under this approach, the economic rights of each spouse derive from an unspoken marital bargain, under which the partners agree that each will enjoy a half interest in the fruits of the marriage. Id. at 199â200. A decedent who disinherits the surviving spouse fails to uphold that bargain.Â Id.at 200; see also Restatement (Third) of Prop.: Wills & Other Donative Transfers Â§ 9.2 cmt. a (2003). Â¶15Â Â Â Â Â Â Whereas the earlier version of Coloradoâs elective-share statutes gave a surviving spouse the right to elect a fraction of the assets comprising the augmented estate, with the amount determined on the date of distribution, the amended provisions specify that the elective share is a pecuniary amount calculated as of the decedentâs date of death.7Comparech. 186, sec. 1, Â§ 15-11-201(1), 1981 Colo. Sess. Laws 911, 911 (â[T]he surviving spouse has a right of election to take a fraction of the augmented estate . . . .â (emphasis added)), with ch. 178, sec. 3, Â§ 15-11-201(1), 1994 Colo. Sess. Laws 969, 980 (âThe surviving spouse . . . has a right of election . . . to take an elective-share amount not greater than one-half of the value of the augmented estate.â (emphasis added)), and id. Â§ 15-11-202(1)(a)(XII), 983 (defining âvalueâ as âfair market value as of the decedentâs date of deathâ). 8 The significance of these changes is that, where the elective share isÂ computed as a fraction of the augmented estate, it participates in appreciation or depreciation during estate administration. But where, as here, the elective share is based on a pecuniary value determined at time of death, it does not participate in increases and decreases to the estate during administration. See, e.g., In re Estate of Parker, 180 N.W.2d 82, 85 (Mich. Ct. App. 1970) (explaining that the difference between a fractional and pecuniary amount is important because it determines whether appreciation or depreciation of assets during probate will affect that amount). Â¶16Â Â Â Â Â Â The revisions to Coloradoâs elective share effectuate the partnership theory of marriage by ensuring that the surviving spouse of a ten-year or longer marriage will receive fifty percent of the augmented estate valued on the decedentâs date of death. This principle assumes that each spouse contributed equally to the partnership (i.e., marriage) and recognizes that the partnership terminates when one spouse dies. That is why the revised statutes value the partnershipâs property on the date the partnership ends; what happens to a deceased spouseâs assets is irrelevant to the surviving spouse. Â¶17Â Â Â Â Â Â We agree with the court of appeals that, by virtue of the determination to be made of a pecuniary amount at the date of decedentâs death, the Colorado Probate Code does not allow the elective share to fluctuate with the estateâs value during probate administration.9We now turn our attention to whether the statutory provisions settingÂ the value of the elective share at the decedentâs date of death displace a probate courtâs authority to base an equitable remedy on appreciation and income to the estate during its administration. C. Principles of Equity Reserved Under the Colorado Probate Code Â¶18Â Â Â Â Â Â Colorado merged its courts of law and equity during its early days of statehood. Hickerson, Â¶ 11, 316 P.3d at 623. The purpose of a court sitting in equity is to promote and achieve justice with some degree of flexibility, according to the particular circumstances of each case. Garrett v. Arrowhead Improvement Assân, 826 P.2d 850, 855 (Colo. 1992); see also In re Estate of Fuller, 862 P.2d 1037, 1039 (Colo. App. 1993) (stating that where no legal remedy is adequate, âequity may then intervene to fashion a remedyâ); Fed. Deposit Ins. Corp. v. Mars, 821 P.2d 826, 832 (Colo. App. 1991) (echoing the equitable maxim that â[t]here can be no wrong without a remedyâ). Equity plays a critical role in providing a probate court with authority to account for the unique circumstances of a particular proceeding and to ensure that parties are treated fairly and the decedentâs will is upheld. See, e.g., In re Estate of Leslie, 886 P.2d 284, 287 (Colo. App. 1994) (affirming assessment of administrative costs and fees incurred by the estate against a particular party despite the lack of a specific provision authorizing such action). Indeed, the Probate Code is âequitable in nature.â Id.Â Â¶19Â Â Â Â Â Â The General Assembly granted probate courts broad equitable jurisdiction. See Â§ 13-9-103(3), C.R.S. (2014) (âThe court has jurisdiction to determine every legal and equitable question arising in connection with decedentsâ, wardsâ, and absenteesâ estates . . . .â). In addition, section 15-10-103 of the Probate Code instructs that, â[u]nless displaced by the particular provisions of this code, the principles of law and equity supplement its provisions.â This section thus preserves the common law and equitable powers the probate court traditionally exercised before adoption of the Probate Code, unless a particular provision displaces that authority. Â¶20Â Â Â Â Â Â No Colorado case specifically addresses the operation of the term âdisplacedâ in the context of the probate courtâs equitable authority. In Lunsford v. Western States Life Insurance, however, we considered the comparable question of when the Probate Code displaces the probate courtâs common law authority. 908 P.2d 79, 80â81 (Colo. 1985). In that case, we concluded that the Probate Codeâs âslayer statuteâ provision did not preempt common law principles barring payment of life insurance policy proceeds to the insuredâs murderer. Id. at 87â88. We observed that â[s]tatutes in derogation of the common law must be strictly construed, so that if the legislature wishes to abrogate rights that would otherwise be available under the common law, it must manifest its intent either expressly or by clear implication.â Id. at 87 (emphasis added) (quoting Van Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070, 1076 (Colo. 1992)). We emphasized this presumption against preemption by specifying that a provision of the Probate Code will displace a courtâs common law powers when there has been âexplicit legislative directionâ to do so. Id.; see also Vigil v. Franklin, 103 P.3d 322, 329 (Colo. 2004) (explaining that we recognize modifications to the common law when the legislature has âclearly and manifestly expressed its intent, through the plain language of the statuteâ). Â¶21Â Â Â Â Â Â Applying the canons of statutory interpretation, when analyzing a specific provision that conflicts with a general provision, our first task is to attempt to give effect to both provisions. Â§ 2-4-205. However, if the conflict between the two is irreconcilable, the special provision controls over the general one. Id. Therefore, we determine that particular provisions of the Probate Code displace a courtâs general equitable authority when an exercise of equity conflicts with the plain language of that specific provision and the two cannot be reconciled. D. Application to This Case Â¶22Â Â Â Â Â Â We determine that the probate courtâs equitable authority must be read and applied in conjunction with the specific provisions of the elective-share statutes. 1. The Colorado Probate Code Displaces a Probate Courtâs Equitable Power to Tie a Remedy to How the Augmented Estateâs Property Performed After the Decedentâs Death Â¶23Â Â Â Â Â Â The plain language of a specific provision of the Probate Code, section 15-11-202(1), displaces a probate courtâs authority to change the date on which it values the property in the augmented estate. We conclude that the probate court abused its discretion by using appreciation and income to the estate to calculate an equitable adjustment to the surviving spouseâs elective share. Â¶24Â Â Â Â Â Â The probate court stated that it intended the equitable adjustment to replicate the estateâs increase in value during probate administration: âIt was the Courtâs intentionÂ that the calculation account for appreciation of assets and income to the estate over the selected period.â The court calculated a rate of return on the value of the entire augmented estate between May 1, 2000 (the date at which it found the elective share should have been determined and distributed), and December 31, 2007 (the date the court deemed the distribution date, even though the estate was not completely distributed until 2010). The court then applied that rate of return to the undistributed balance of Mrs. Berenâs elective share, compounded monthly between those dates, resulting in a $24.5 million equitable adjustment. But by selecting the elective share, Mrs. Beren chose to treat the marriageâs property as a partnership, subject to the statutory framework. Â¶25Â Â Â Â Â Â However, the Colorado Probate Code sets a particular formula for calculating an elective share and states a specific time at which property values for the augmented estate are measured: the decedentâs date of death. See Â§Â§ 15-11-201 to -208, C.R.S. (2014). Fixing the elective shareâs valuation on a specific date signifies that fluctuating estate values do not affect the elective-share proceedings. Here, by tying its equitable adjustment to how the estateâs assets performed during probate administration, the probate courtâcontrary to Coloradoâs 1994 Probate Code amendments rejecting the fractional share theoryâattempted to preserve the spouseâs fractional interest in the increasing value of the augmented estate. Thus, the equitable remedy the probate court chose conflicts with the Codeâs plain language basing the elective share amount on the value of property in the augmented estate on the decedentâs date of death. See Â§Â§ 15-11-201(11), -202(1). The probate court cannot tie an equitable remedy to theÂ augmented estateâs appreciation or depreciation after the date of a decedentâs death in an elective-share proceeding. Because the equitable remedy in this case was based on the increase in value of the entire estate, we conclude that its exercise of equity irreconcilably conflicts with the Codeâs plain language. Â¶26Â Â Â Â Â Â In this case, the augmented estateâs amount substantially increased in the years following Mr. Berenâs death because the value of many of its assetsâespecially oil and gas assetsâgrew. As of the date of this opinion, the price of oil has dropped, which likely decreased the value of the assets in this estate. The volatile nature of the value of these assets illustrates the General Assemblyâs intention to base valuation of the estateâs assets on the decedentâs date of death, not on how the assets perform subsequently. Doing so, depending on the circumstances, could prevent a surviving spouse from obtaining fifty percent of the marital-property portion of the augmented estate if the value of the properties in the augmented estate decreased below their value as of the decedentâs date of death. Adhering to that date as a bright line for valuation guarantees that the surviving spouse obtains the benefit of the marriage bargain. Â¶27Â Â Â Â Â Â Therefore, the plain language of a particular statutory provision dealing with the spouseâs elective share, section 15-11-202(1), disallows the probate court from basing an equitable remedy on how the augmented estate performs after the decedentâs death. A contrary view would remove the âdate of deathâ phrase in the definition of âvalue.â See Â§ 15-11-201(11). By tying the equitable adjustment to the entire augmented estateâs rate of return years after Mr. Berenâs death, the probate courtâs exercise of equityÂ conflicted with the definition of âvalue,â which anchors the elective share to the valuation of assets at the decedentâs date of death. 2. Forms of Equitable Relief Available Â¶28Â Â Â Â Â Â We decline to adopt the three sonsâ extreme position that the Probate Code displaces all equitable authority in an elective-share proceeding. The Probate Code explicitly provides for situations where equity may supplement its provisions. See Â§ 15-10-103. But the three sonsâ argument contravenes both the letter and intent of this provision by preventing a probate court from ever exercising equity in an elective-share case. We must give effect to all provisions of a statute whenever feasible. See Young, Â¶ 16, 325 P.3d at 577. The Probate Code recognizes the unique nature of the marital relationship, and its elective-share provisions are intended to put the decedentâs spouse in a privileged position, with greater rights than residual beneficiaries. Yet the Probate Code cannot anticipate every possible scenario, and for that reason, the statute reserves the probateâs courtâs traditional equitable authority. See Lunsford, 908 P.2d at 85 (explaining that in section 15-10-103, â[t]he General Assembly provided guidance in determining the legal standards that apply to situations not covered by the statutory scheme of the Colorado Probate Codeâ). We emphasize that cases meriting such an exercise of equity will be rare, because the Code normally operates in favor of prompt disposition of estate matters. This case is an exceptional one where failure to invoke equity would lead to injustice. Â¶29Â Â Â Â Â Â The probate court correctly determined that use of its equitable authority was necessary to the disposition of this case. During the lengthy course of the proceedings,Â the court made numerous findings supporting an exercise of equity. The court found that âboth the accumulation of excessive administration costs, as well as the passage of excessive time, have distorted the value of the elective share in this estate.â In 2009, following a two-day evidentiary hearing to determine calculation of the equitable adjustment, the court made three specific findings that the âdecedentâs children would be enriched at the expense of their motherâ if they were allowed to (1) âdelay the distribution of the full elective share for over a decade,â (2) âforce distribution of cash to their mother while they took âin kindâ distributions,â10and (3) âcontinually reduce the value of the elective share by increasing administrative expenses through delay and obstruction.â Â¶30Â Â Â Â Â Â Thus, the unique nature of the Beren estate, combined with inordinate delay, excessive administrative expenses, and difficulties associated with evenly distributing corporate assets, created a situation where mechanistic application of the elective-share statutes in isolation would lead to a highly inequitable outcome. Although the probate court erred by tying Mrs. Berenâs equitable adjustment to increases in value of the entireÂ augmented estate after her husbandâs death, there is ample factual support in the record supporting the probate courtâs ability to exert the authority granted to it under section 15-10-103 to fashion an equitable remedy consistent with the Probate Codeâs plain language. The probate court has a range of equitable tools at its disposal to avoid the injustice that would result from excluding all equitable remedies in this case as a matter of law. These tools include the following for the probate courtâs consideration on remand from our decision when crafting an appropriate remedy. a. Administrative Expenses Â¶31Â Â Â Â Â Â In dealing with administrative expenses, the probate court determined that â[a]ll administrative expensesâ would be included in the general computation of administrative expenses, regardless of whether they were âoccurring outside of the control of the surviving spouse or reasonable and necessary to the administration of any estate of this size and complexity.â The court acknowledged that this would âdistort[]â the value of the elective share as it existed on the decedentâs date of death, but it intended to address that distortion through the equitable adjustment. Therefore, the courtâs decision to apportion the estate administration costs in this way hinged on the critical assumption that it had authority to award an equitable adjustment to the statutory elective share. Â¶32Â Â Â Â Â Â Specifically, section 15-11-203 dictates that the value of the augmented estate includes the value of the decedentâs probate estate, reduced by administrative and certain other expenses. In other words, an electing spouse receiving fifty percent of the augmented estate will also be responsible for fifty percent of the administrativeÂ expenses. Administrative expenses in this case totaled $276,225.20 in 1996 but had ballooned to $16,783,615.50 by final distribution of the estate in 2010. Importantly, although the Probate Code provides that the property comprising the augmented estate is valued at the time of death, the administrative expenses component continues to increase during probateâi.e., its value is not, and cannot, be determined based upon the date of death. In this extremely prolonged case, the estateâs rising administrative expenses consumed a significant portion of the augmented estate, thereby reducing Mrs. Berenâs elective share by over $8 million compared to its value on the date of her husbandâs death. Â¶33Â Â Â Â Â Â No particular provision in the Probate Code displaces a probate courtâs authority to grant an equitable adjustment based on excessive administrative expenses not attributed to a spouseâs actions in an elective-share proceeding. While the phrase âdate of deathâ in the statutory definition of value, Â§ 15-11-201(11), displaces a probate courtâs ability to grant an equitable remedy based upon appreciation and income to the augmented estate, there is no evidence that the administrative expenses here were connected to the increase in value of the estate. Further, while the value of the property comprising the augmented estate must be ascertained based upon date of deathâand therefore the estateâs performance after that date cannot be considered in an elective-share proceedingâadministrative fees cannot be ascertained as of date of death because they continue to increase during estate administration. Â¶34Â Â Â Â Â Â While the statuteâs plain language dictates that administrative costs must be deducted from the augmented estate, as they were in this case, nothing in the CodeÂ precludes a probate court from granting an equitable adjustment based upon excessive administrative fees when justice so requires. The record supports the probate courtâs finding that excessive administrative expenses unfairly impacted Mrs. Berenâs elective share. Under the extraordinary circumstances of this case, the probate court retains equitable authority to account for the unfair burden of administrative expenses. Â¶35Â Â Â Â Â Â On remand, the probate court may award Mrs. Beren an equitable remedy based upon the excessive administrative expenses in this case. b. Equitable Award Based on Reasonable Rate of Return to Undistributed Balance of the Elective Share Â¶36Â Â Â Â Â Â The probate courtâs equitable authority can also include an award to compensate a surviving spouse for delay in the elective shareâs distribution. The Probate Code plainly indicates the General Assemblyâs policy choice in favor of prompt distribution of the elective share. However, final disposition of an estate may involve delay caused by the necessity to address issues other beneficiaries raise in the case. Here, the delay in calculating and distributing the elective share prevented Mrs. Beren from utilizing the cash and/or in-kind assets to which she was legally entitled. While interest is usually a creature of statute, the probate court may use its equitable authority to ensure that a party receives the true value of her or his elective share when distribution has been unduly delayed. Â¶37Â Â Â Â Â Â In this case, the probate court was justified in concluding that an exercise of equity was necessary to âcompensate a party for an inordinate delay in receiving a distribution to which she is entitled.â If not for the objections and ensuing litigation, theÂ court found the estate âcould have been administered and distributed after 4 yearsâ but instead took almost fifteen years.11 The court specifically recognized the delay caused by the four sons in its orders addressing its exercise of equity. For example, in its December 15, 2003 order, the court found that âthe lack of cooperation of the [four sons] was an impediment to the administration of the estateâs assets.â The court concluded that â[i]t would represent a windfall to the other devisees, all of whom participated in the litigation that has delayed the final settlement and distribution, to have the entire benefit of [the estateâs appreciation and income] allocated to their distributions.â Notably, the court never found that the delay was the result of any action on the part of Mrs. Beren. Â¶38Â Â Â Â Â Â If the estate had been settled on a timely basis, there would not have been sufficient cash to fulfill Mrs. Berenâs elective share. The means that her elective share could have been satisfied through a combination of cash and oil and gas assets that would have shared in the same appreciation and income the estate experienced during probate. Because years of litigation concerning the elective-share calculation delayed its distribution, Mrs. Beren was not able to benefit from investing the cash and/or enjoying the benefit of the in-kind assets she would have received. Her elective share was not separated from the rest of the estate, so she was a de facto investor, whoâunder the court of appealsâ analysisâwould have been unable to reap the benefit of herÂ investment. The record supports the probate courtâs finding that, without an equitable remedy, the children would have been unjustly enriched at the expense of their mother because they hindered the distribution of her elective share and then used that amount to further benefit the estateâs assets and, ultimately, their own financial well-being. Â¶39Â Â Â Â Â Â Coloradoâs Probate Code is based on uniform law. Case law from other jurisdictions that have also adopted the UPC informs our decision regarding the probate courtâs equitable authority to award interest on an elective share when distribution has been unduly delayed. For example, a New York court concluded that its law authorized an award of interest to compensate a surviving spouse for delay in the distribution of her elective share, relying on principles of equity to reach the just result. See In re Kasenetz, 196 Misc. 2d 318, 320 (N.Y. Sur. Ct. 2003) (â[T]he delay in distribution [of the elective share] inures to the benefit of the residuary beneficiaries and the loss of use of the money inures to the detriment of the spouse. There is neither equity in this position nor is there incentive for the fiduciaries to distribute to the surviving spouse what the law determines to be hers in an expeditious fashion . . . .â). That court reasoned that refusing to supplement the pecuniary elective-share amount with statutory interest âwould unjustly enrich the estate and diminish the value of the elective share.â Id. at 321.Â Â¶40Â Â Â Â Â Â In the case before us, the Probate Code does not provide for statutory interest on a delayed elective-share distribution.12 But the probate courtâs authority to ensure that a party receives the full value of the money it is legally due is not restricted to an award of statutory interest. See, e.g., Farmers Reservoir & Irrigation Co. v. City of Golden, 113 P.3d 119, 132â33 (Colo. 2005) (observing that the doctrine of moratory interest relied on the concept of interest as damages and unjust enrichment as a basis for awarding common law interest rather than statutory interest); Bankers Trust Co. v. Intâl Trust Co., 113 P.2d 656, 665 (Colo. 1941) (allowing interest to be assessed as damages when interest was not recoverable by statute). The court of appeals determined that the equitable adjustment was not justified as an award of moratory interest because the probate court did not make the requisite finding of wrongful withholding. Estate of Beren, Â¶ 39. However, even in the absence of a wrongful withholding, the probate courtÂ made sufficient findings to justify an equitable remedy to compensate for the excessive delay that deprived her of property to which she was legally entitled. Â¶41Â Â Â Â Â Â The statutory interest rate has traditionally functioned as a legislative policy choice regarding the value of money, in order to avoid prolonged factual disputes in each and every case coming before our courts. See Rodriguez v. Schutt, 914 P.2d 921, 929 (Colo. 1996) (recognizing that statutory interest is meant to preserve the time value of money). The 17.46% interest rate the probate court selected as an equitable adjustment was based on the overall performance of the augmented estateâs assets during probate administration and, therefore, cannot be the basis for an equitable remedy on remand. This does not mean, however, that the probate court cannot make an equitable award based on the reasonable rate of return on the undistributed portion of Mrs. Berenâs elective share during probate administration. Tying an equitable award to the statutory rate of interest that the General Assembly already recognizes is within the trial courtâs discretion. See, e.g., Roberts v. People, 130 P.3d 1005, 1010 (Colo. 2006) (noting that the criminal restitution statute did not require any specific prejudgment interest rate, but that the civil interest rate of eight percent, while not controlling, appeared reasonable and appropriate under the circumstances). Accordingly, on remand, the probate court may grant Mrs. Beren an equitable award based on a reasonable rate of return on the assets to which she was entitledâthe undistributed portion of her elective share. E. Interest on the Repayment of the Equitable Adjustment Â¶42Â Â Â Â Â Â Finally, we affirm the court of appealsâ conclusion that interest on Mrs. BerenâsÂ repayment of her equitable adjustment cannot be awarded pursuant to statute but instead only under restitution principles, subject to countervailing equitable considerations. See Estate of Beren, Â¶Â¶ 146â56. Â¶43Â Â Â Â Â Â David Beren argues that the general interest statute entitles him to interest on Mrs. Berenâs repayment of the probate courtâs equitable award. Section 5-12-106(1)(b), C.R.S. (2014), provides for postjudgment interest when a matter is reversed on appeal. It states in relevant part: If a judgment for money in a civil case is appealed by a judgment debtor and the judgment is modified or reversed with a direction that a judgment for money be entered in the trial court, interest, as set out in subsections (2) and (3) of this section, shall be payable from the date a judgment was first entered in the trial court until the judgment is satisfied and shall include compounding of interest annually. David Beren claims that the court of appeals construed the postjudgment interest statute too narrowly when it excluded him, a rival claimant of the assets of an estate in distribution, from being considered a âjudgment debtor.â Instead, he argues, we should consider him the âfunctional equivalentâ of a judgment debtor and grant him an award of statutory interest. However, we have instructed that the language of section 5-12-106 âmust be strictly construed by the court,â and that â[i]f the statute is clear and unambiguous on its face, then the court need look no further.â Sperry v. Field, 205 P.3d 365, 367 (Colo. 2009). Â¶44Â Â Â Â Â Â The court of appeals correctly concluded that this statute does not apply here because a judgment debtor has not appealed and the court did not direct that a money judgment be entered upon remand. See Estate of Beren, Â¶ 151. A judgment debtor isÂ â[a] person against whom a money judgment has been entered but not yet satisfied.â Blackâs Law Dictionary 921 (9th ed. 2009). The probate court did not order David Beren to pay a judgment to Mrs. Beren. Rather, the probate court ordered the estate to pay Mrs. Beren, and any distribution that she must return goes back to the estate, not David Beren individually. Accordingly, David Beren is not a judgment debtor under the plain language of section 5-12-106(1)(b), and he is not entitled to statutory interest. Â¶45Â Â Â Â Â Â Interest is also not appropriate under section 5-12-102, C.R.S. (2014). Section 5-12-102(1)â(3) codified the doctrine of moratory interest in contract and property damage cases. Farmers Reservoir, 113 P.3d at 133. However, this case is not a contract or property damage case; it is a probate case. Our case law clarifies that, as a precondition to a wrongful withholding, there must be a party who has acted wrongfully in the legal sense, e.g., a party has breached a contract. See Mesa Sand & Gravel Co. v. Landfill, Inc., 776 P.2d 362, 364â66 (Colo. 1989) (collecting cases). There has been no âwrongful withholdingâ here because Mrs. Beren did not breach a contract, nor has she damaged physical property. Â¶46Â Â Â Â Â Â David Beren alleges that the court of appealsâ opinion conflicts with Rodgers v.Â Colorado Department of Human Services,39 P.3d 1232 (Colo. App. 2001). We disagree. In Rodgers, the court of appeals awarded interest pursuant to section 5-12-102 in a case involving a lawsuit between a state employee and his employer, where the court was satisfied that the employee was a breaching party who wrongfully obtained money from the state agency. Id. at 1238. Rodgers is therefore distinguishable from this case because here no court ever found wrongful withholdingÂ or a breaching party. Accordingly, Rodgers does not provide support for an award of interest on Mrs. Berenâs repayment of the equitable adjustment. Â¶47Â Â Â Â Â Â Nevertheless, interest may be granted on equitable grounds, pursuant to the Restatement (First) of Restitution Â§ 74 (1937), which provides: A person who has conferred a benefit upon another in compliance with a judgment, or whose property has been taken thereunder, is entitled to restitution if the judgment is reversed or set aside, unless restitution would be inequitable . . . . Comment d to that section explains that, âupon reversal of the judgment the payor is entitled to receive from the creditor the amount thus paid with interest.â (Emphasis added.) Â¶48Â Â Â Â Â Â Section 74 provides for restitution âunless restitution would be inequitable.â Therefore, on remand, the probate court shall consider, and may, in its discretion, take additional evidence on whether equitable considerations reduce or eliminate Mrs. Berenâs obligation to repay interest to the estate. Conclusion Â¶49Â Â Â Â Â Â A probate courtâs traditional powers in equity supplement and reinforce the statutory directives of the Colorado Probate Code. Where those two sources of authority intersect, particular provisions of the Probate Code displace a courtâs general equitable authority when an exercise of equity irreconcilably conflicts with the statuteâs plain language. Probate courts retain authority under section 15-10-103 to exercise equity in those unusual elective-share cases that warrant it, as long as that exercise does not conflict with the statutory language.Â Â¶50Â Â Â Â Â Â We conclude that the Colorado Probate Codeâs plain language demonstrates that a particular statutory provision dealing with the spouseâs elective share, section 15-11-202(1), fixes the value of the property comprising the augmented estate on the decedentâs date of death. This specific provision controls over the general equitable authority the probate court may exercise under section 15-10-103. Accordingly, the probate court erred by linking its equitable award to appreciation and income to the entire augmented estate. Nevertheless, section 15-10-103 expressly reserves the probate courtâs equitable authority to the extent that it is not displaced. On remand, the probate court has tools at its disposal to exercise equity consistent with the statutory elective-share framework. III. Â¶51Â Â Â Â Â Â Accordingly, we affirm in part and reverse in part the judgment of the court of appeals and remand the case for further proceedings consistent with this opinion. We set aside the court of appealsâ judgment requiring the spouse to repay the entire $24.5 million equitable award with interest. The probate court shall determine on remand what equitable relief is available to the spouse under the specific facts of this case. The probate court, in its discretion, may take additional evidence and argument, and may order further relief and enter a final judgment consistent with this opinion.Â JUSTICE HOOD does not participate. 1 We granted certiorari in In re Estate of Beren, 2012 COA 203M, __ P.3d __, as modified on denial of rehearing (Feb. 14, 2013), to review the following issues: 1. Whether the court of appeals erred by holding, as a matter of law, that the Probate Code displaces the authority of the probate court to award an equitable adjustment supplementing a spouseâs elective share of the decedentâs estate. 2. Whether the court of appeals created a grave injustice by invalidating the equitable adjustment in isolation and ordering the petitioner, Miriam Beren, to return $24.5 million, plus interest, completely disregarding that the equitable award was integral to administering the estate over the course of 15 years. 3. Whether the court of appealsâ conclusion that interest on the repayment of the equitable adjustment cannot be awarded under a statute but instead only on restitution principles (1) conflicts with Rodgers v. Colorado Department of Human Services,39 P.3d 1232 (Colo. App. 2001), and Tuscany, LLC v.Â Western States Excavating Pipe & Boring, LLC,128 P.3d 274 (Colo. App. 2005), both of which awarded statutory interest on funds that had to be reÂpaid following reversal of judgments on appeal, and (2) misinterprets section 5-12-106, C.R.S. (2012), which requires payment of statutory interest on judgments reversed on appeal.Â 2 Daniel Beren did not participate in the brothersâ appeal before the supreme court. To the extent this opinion discusses David, Zev, and Jonathan Berenâs arguments on certiorari, this opinion will refer to that group as âthe three sons.â 3 After Mrs. Beren decided to take her elective share, Robert Goodyear continued as the sole personal representative for the remainder of the probate proceeding. 4 As formulated in the Probate Code, the augmented estate is composed of the sum of four elements: (1) the value of the decedentâs net probate estate; (2) the value of the decedentâs nonprobate transfers to others; (3) the decedentâs nonprobate transfers to the surviving spouse; and (4) the surviving spouseâs property and nonprobate transfers to others. See Â§ 15-11-203, C.R.S. (2014). 5 The delay between choosing the elective share and petitioning to determine its value resulted from the Internal Revenue Service audit process. On May 12, 1997, the personal representative filed the federal estate tax return Form 706 and paid the federal and state estate taxes then due. On June 14, 1999, the IRS, having completed its audit process, issued its closing letter. 6 Although Mrs. Beren and her three children asked that the award be allocated entirely against the four sons, the probate court declined, explaining that the equitable remedy was not a punitive sanction targeting âbad peopleâ and rewarding âgood people.â During the hearing on the calculation of the equitable award, the court emphasized that its action was ânot a punitive awardâ: âI was trying to make an adjustment that I thought was reflective of my responsibility to do equity in an estate.â 7 The pecuniary amount is based on both liquidated and unliquidated assets. Nothing in the Probate Code limits a probate courtâs ability to award cash, in-kind assets, or both when distributing a spouseâs elective share. 8 Colorado further amended its provision describing the pecuniary elective-share amount in 2014 to mirror changes to the UPC. See ch. 296, sec. 2, Â§ 15-11-202(1), 2014 Colo. Sess. Laws 1220, 1222. As revised, the statute specifies that the elective-share amount is always fifty percent, but it is fifty percent of the marital-property portion of the augmented estate, which increases along with the length of the marriage. Id. (âThe surviving spouse . . . has a right of election . . . to take an elective-share amount equal to fifty percent of the value of the marital-property portion of the augmented estate.â (emphasis added)). The purpose of this revision is to present the elective-shareâs implementation of the partnership theory of marriage in a direct rather than indirect form. See tit. 15, art. 11, pt. 2, gen. cmt. p. 202, C.R.S. (2014). Mrs. Berenâs elective share would have been computed identically under either version of the statute. For the purposes of our analysis in this opinion, we refer to the current 2014 version of the statute. 9 The probate court also recognized this. In its order of September 23, 1999, the court acknowledged that a surviving spouse is not entitled as a matter of law to income on the elective share under the existing Probate Code. Consequently, the court expressly reserved its equitable powers to make a supplementary award based upon specific facts that justify additional compensation in favor of this particular spouse. 10 The difficulties surrounding distribution of the shares in Berenergy led the personal representativeâand ultimately the probate courtâto threaten complete liquidation of the in-kind assets, which would have resulted in significant tax consequences for the residual beneficiaries. The solution the personal representative eventually adopted was to give Mrs. Beren her share in cash and divide Berenergy and related assets among the children. In its June 19, 2008 order, the probate court explained that it carefully considered its power to order a complete liquidation of the estate to âinsure fairness to all of the takersâ and âeliminate any conflict over whether the distributions by the Personal Representative to the devisees are fair.â However, weighing the probable intent of the decedent, the court ultimately adopted the personal representativeâs plan to avoid complete liquidation. 11 Additionally, in its January 10, 2006 order, the probate court observed that âthis case is approaching the decade marker and will soon be the oldest unresolved decedentâs estate on this Courtâs docket.â 12 A recent amendment to the UPC, section 2-209(e), provides for statutory interest on a delayed elective-share distribution. Colorado adopted this provision in the 2014 legislative session. See ch. 296, sec. 2, Â§ 15-11-209(4), 2014 Colo. Sess. Laws 1220, 1229. Section 15-11-209(4), C.R.S. (2014), now provides: Unsatisfied balance treated as general pecuniary devise. The unsatisfied balance of the elective-share . . . amount . . . is treated as a general pecuniary devise for purposes of section 15-12-904, but interest shall commence to run one year after determination of the elective share amount by the court. This subsection (4) applies only to estates of decedents who die on or after August 6, 2014. Treating the undistributed balance of the elective share as a general pecuniary devise allows that amount to accrue interest according to the statutory directives for general pecuniary devises. However, this statute was not in force on Mr. Berenâs date of death and thus does not apply here. Regardless, it would not have addressed the inequities in this case because interest only begins to accrue one year after the court determines the elective-share amount, which did not occur until 2009, after years of delay. These opinions are not final. They may be modified, changed or withdrawn in accordance with Rules 40 and 49 of the Colorado Appellate Rules. Changes to or modifications of these opinions resulting from any action taken by the Court of Appeals or the Supreme Court are not incorporated here. Colorado Supreme Court Opinions \|\| May 11, 2015 Back	{ "pile_set_name": "FreeLaw" }
934 P.2d 1374 (1997) The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Jeffrey Marcus PEASE, Defendant-Appellee. No. 96SA467. Supreme Court of Colorado, En Banc. April 7, 1997. 1376 Jeanne M. Smith, District Attorney, Fourth Judicial District, Gordon R. Denison, Deputy District Attorney, Ann C. Joyce, Deputy District Attorney, Colorado Springs, for Plaintiff-Appellant. Dennis W. Hartley, P.C., Dennis W. Hartley, Colorado Springs, for Defendant-Appellee. Justice MARTINEZ delivered the Opinion of the Court. This is an interlocutory appeal of the district court's order suppressing statements of the defendant, Jeffrey Pease, pursuant to C.A.R. 4.1. The district court suppressed Pease's statements from use at trial because the police deliberately failed to tell Pease that they had a warrant for his arrest. We reverse and hold that Pease's waiver of Miranda[1] rights was valid even though the police deliberately failed to tell Pease that there was a warrant for his arrest. I. In September 1994, Colorado Springs Police Detective Richard Hunt obtained information concerning Pease's alleged sexual activity with a minor. Detective Hunt interviewed the minor and confirmed parts of the minor's account. He investigated Pease's prior criminal history, and prepared affidavits in support of an arrest warrant for Pease and a search warrant for his home. A judge signed both warrants on September 13, 1994. Detective Hunt and several other officers went to Pease's home the next morning. They explained why they had come and began executing the search warrant. They did not tell Pease they had a warrant for his arrest. Pease agreed to go to the police station for an interview, in order to tell his side of the story. He was allowed to get fully dressed and was transported, in an unmarked police car and without handcuffs, to the police station. Pease was led through a number of security doors into an interview room in the station, where he was given Miranda warnings and signed a written Miranda waiver form. Pease acknowledged that he understood his right against self-incrimination and his right to be represented by an attorney. Detective Hunt then questioned Pease for several hours, until the detective suggested that Pease take a polygraph test. Pease, a college-educated professional, had prior experience with the process of arrest and with the criminal justice system. He testified that the police were polite and cordial throughout the encounter. Pease stated that he never felt pressured or uncomfortable. He did not feel that he was under arrest until the end of the interview. The interview ended when Detective Hunt asked Pease to take the polygraph test. Pease responded that he would not submit to a polygraph without first consulting an attorney. Detective Hunt then produced the arrest warrant that he had obtained the day before and formally placed Pease under arrest. Pease was not informed of the arrest warrant until the end of the interview.[2] He testified that if he had known that the police had already obtained a warrant for his arrest, he would not have signed the Miranda waiver and consented to the interview, but would have asked to see an attorney immediately. The district court ruled from the bench that "it's not acceptable for police to have an arrest warrant, then to seek information, to ask questions without informing that individual that he or she's under arrest." The court relied on language from Commonwealth v. Jackson, 377 Mass. 319, 386 N.E.2d 15 (1979), to support its finding of impermissible deception: 1377 We think that where police pursue a course of conduct aimed at improperly convincing a defendant to relinquish the right to remain silent, the Commonwealth has neither "scrupulously honored" that right nor has it sustained its burden of showing a knowing, intelligent and voluntary waiver of that right. Id. 386 N.E.2d at 21. The district court concluded that where the police had an arrest warrant and an obligation to advise pursuant to Miranda, the failure to advise the defendant that there was an arrest warrant was not acceptable and improperly convinced the defendant to relinquish his Miranda rights. The district court did not explicitly determine when Pease was placed in custody for Miranda purposes. However, the court found that the police were required to give Pease Miranda warnings before interviewing him at the station. Consistent with this conclusion, the court stated that ordinarily suspects are handcuffed while in transit to the police station and that the fact that Pease was not handcuffed would have given him the impression that he was not in custody during the ride to the station. The district court's discussion of this ride suggests that the police intentionally wished to create a noncustodial atmosphere in order to encourage the subsequent Miranda waiver and interview at the police station. Upon arriving at the police station Pease was taken through a number of "electrically controlled doors" to a "very secure area," and could not have simply gotten up and walked out of the interview room. These facts strongly suggest a custodial environment and support the court's conclusion. Thus, while the district court did not explicitly hold that Pease was in custody during the interview, we infer from its ruling that Miranda warnings were required before the interview that the court applied the correct standard and implicitly found that Pease was in custody once he was taken into the locked interview room. Also, the district court would not have reached the question of whether the failure to inform Pease of the arrest warrant prevented a knowing, intelligent, and voluntary waiver of Miranda rights had the court not implicitly found Pease was in custody. The constitutional requirement to give a criminal suspect Miranda warnings applies when the suspect is subject to custodial interrogation. See People v. LaFrankie, 858 P.2d 702, 705 (Colo.1993). In addition to a formal arrest, custody includes situations where the person being interrogated reasonably believes that he is deprived of his freedom of action in a significant way. See id. A trial court's determination of whether a person is in custody will not be disturbed where its findings of fact are adequately supported by competent evidence and the determination is based on the correct legal standard. See People v. Haurey, 859 P.2d 889, 893 (Colo.1993); see also People v. Trujillo, 784 P.2d 788, 792 (Colo.1990). Accordingly, we accept the district court's implicit determination that Pease was in custody when he was interviewed at the police station, and we address the court's determination that Pease could not knowingly, intelligently, and voluntarily waive his Miranda rights because he was not informed that a warrant had been issued for his arrest. II. In order for a waiver of Miranda rights to be considered valid, the prosecution must prove by a preponderance of the evidence that the waiver was knowingly, intelligently, and voluntarily made. See People v. May, 859 P.2d 879, 882 (Colo.1993). To be valid, a Miranda waiver must be: "voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness, both of the nature of the right being abandoned and the consequences of the decision to abandon it." Id. (quoting People v. Hopkins, 774 P.2d 849, 851 (Colo.1989) and Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140-41, 89 L.Ed.2d 410 (1986)); see also Colorado v. Spring, 479 U.S. 564, 573, 107 S.Ct. 851, 856-57, 93 L.Ed.2d 954 (1986). The voluntariness prong of this test focuses on whether police 1378 conduct was coercive. The knowing and intelligent prong of this test focuses on the suspect's state of mind. See May, 859 P.2d at 883. The district court did not find, and the evidence of record does not suggest, that the Miranda waiver was not knowingly and intelligently made with awareness of the nature of the right being abandoned and the consequences of the decision to abandon that right. The district court held that Pease's waiver was involuntary only because of Detective Hunt's failure to inform Pease about the existence of the arrest warrant. Thus, the district court regarded the failure to tell Pease about the arrest warrant as a deception, and Pease's waiver as the product of this deception. The court therefore based its suppression order on the prosecution's failure to satisfy the voluntariness prong of the waiver test. We disagree with the district court's conclusion that the failure of police to inform a suspect that they have obtained a warrant for his arrest is a deception which will render a waiver involuntary. The prohibition on the use of deceptive tactics to obtain a waiver of constitutional rights stems from language in Miranda that a suspect may not be "threatened, tricked, or cajoled into a waiver" of constitutional rights. Miranda v. Arizona, 384 U.S. 436, 476, 86 S.Ct. 1602, 1628-29, 16 L.Ed.2d 694 (1965) (emphasis added). The United States Supreme Court has consistently held that police need not inform a suspect of information which is beyond the scope of Miranda, even if the information might affect the suspect's decision to talk to police. A decision is not involuntary because it is unwise, or may prove unwise in hindsight. Nothing in the Constitution or Miranda requires police to tell a suspect all the facts and circumstances which might affect the suspect's decision whether to waive his rights. Rather, Miranda prevents the police from coercing a suspect and requires them to insure that a suspect is aware of and understands his constitutional rights. In Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), police properly advised a suspect before questioning, but failed to inform the suspect that his sister had arranged to get him an attorney and that this attorney had called the police station. The Supreme Court held that this failure to inform the suspect about the attorney's telephone call did not render the suspect's Miranda waiver involuntary. Nothing in any of our waiver decisions or in our understanding of the essential components of a valid waiver requires so incongruous a result. No doubt the additional information would have been useful to respondent; perhaps even it might have affected his decision to confess. But we have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights. Once it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law. Id. at 422-23, 106 S.Ct. at 1141 (citations omitted).[3] Similarly, in Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987), the Supreme Court held that the failure of federal agents to inform a suspect of the subject matter of an interrogation had no effect on the suspect's voluntary, knowing, and intelligent waiver of his Miranda rights. The Court noted that sometimes affirmative misrepresentations by the police could invalidate a waiver, but mere silence by law enforcement 1379 officials about the subject matter of an interrogation was not trickery which rendered the suspect's waiver involuntary. Id. at 576 & n. 8, 107 S.Ct. at 858 & n. 8. Finally, in United States v. Washington, 431 U.S. 181, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977), the defendant was given Miranda warnings prior to testifying before a grand jury. The defendant's uncompelled testimony was later used against him at his criminal trial. The defendant argued at trial that his waiver of Miranda rights was involuntary because he did not know that he was a suspect when he testified before the grand jury. The Supreme Court held that such knowledge had no bearing on the constitutional validity of the defendant's waiver. "Even in the presumed psychologically coercive atmosphere of police custodial interrogation, Miranda does not require that any additional warnings be given simply because the suspect is a potential defendant...." Id. at 188, 97 S.Ct. at 1819. Guided by this authority, other courts have consistently held that the failure of police to inform an individual that they have obtained a warrant for his arrest has no effect on the individual's ability to voluntarily waive his Miranda rights. See United States v. McVeigh, 940 F.Supp. 1541, 1561 (D.Colo. 1996) (Spring and Moran "also support the conclusion that it was not required that the FBI disclose to the interrogating agents and, in turn, to Mr. Nichols, that a warrant for his arrest had been issued in Oklahoma City"); State v. Manning, 506 So.2d 1094, 1095-97 (Fla.Dist.Ct.App.1987) (following Spring and Moran in holding that a police officer's failure to inform a suspect that police had already obtained an arrest warrant did not constitute coercion or trickery which would invalidate the suspect's Miranda waiver); State v. Mitchell, 104 Idaho 493, 660 P.2d 1336, 1340 (1983) ("The fact that appellant was not explicitly informed that the officers had an arrest warrant at the time she received the [Miranda] warnings does not invalidate their effectiveness. It is not essential that a suspect be informed of the charges against her before being interrogated."); see also United States v. Washington, 431 U.S. 181, 186, 97 S.Ct. 1814, 1818, 52 L.Ed.2d 238 (1977). Here, the sole reason the district court suppressed Pease's statements was its conclusion that Detective Hunt was "not playing fairly" when he chose not to inform Pease that he had already obtained an arrest warrant before allowing Pease to waive his Miranda rights. The district court's reliance on Commonwealth v. Jackson, 377 Mass. 319, 386 N.E.2d 15 (1979), to support its finding of impermissible deception, is misplaced. In Jackson, the defendant invoked his right to remain silent. The police continued discussing the evidence they had collected and lectured the defendant on how they "knew he did it" after the defendant expressed his intent to exercise his right to remain silent. Id. 386 N.E.2d at 19. Police then falsely told the defendant that his girlfriend had implicated herself, a lie which circumstantially implicated the defendant. The Massachusetts Supreme Judicial Court found that these tactics violated both Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (police must scrupulously honor defendant's request to stop questioning), as well as Miranda's prohibition on the use of trickery. Jackson, 386 N.E.2d at 20-21. The use of affirmative misrepresentations to break down a defendant's will is fundamentally different from the mere failure of police to provide information which concerns only the wisdom and not the voluntariness of a defendant's waiver decision. See Spring, 479 U.S. at 576, 107 S.Ct. at 858-59. Detective Hunt's failure to inform Pease that he had obtained an arrest warrant was not deception or trickery prohibited by Miranda. The information that a warrant had been issued had no bearing on Pease's ability to make a voluntary, knowing, and intelligent decision to waive his rights. It is immaterial that Pease would not have waived his rights had he known that the warrant existed. The decision to waive was knowingly and intelligently made in that he understood his rights. It is not required that a defendant knows all the circumstances which might affect his decision. The failure to tell Pease of the arrest warrant was not coercion prohibited by Miranda, but merely a failure to fully inform *1380 the defendant of all the facts and circumstances which might affect his decision. Because the failure to inform Pease that an arrest warrant had been issued was the sole basis for suppression, we reverse. We hold that the deliberate failure to tell a defendant that there is a warrant for his arrest does not by itself make a custodial statement involuntary if the statement is made after a proper Miranda advisement and a voluntary, knowing, and intelligent waiver of rights. III. Accordingly, the district court's order suppressing defendant's statements is reversed, and this case is remanded for further proceedings consistent with this opinion. NOTES [1] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [2] This was the only disputed fact. Detective Hunt testified that he informed Pease about the existence of the arrest warrant at the very beginning of the interview, before the defendant signed the Miranda waiver. The trial court specifically found to the contrary, consistent with the testimony of the defendant that the arrest warrant was not mentioned until the end of interview. We are, of course, bound by this finding of fact which is supported by the record. [3] Several states have declined to follow the holding in Moran on various state law grounds. See, e.g., People v. Bender, 452 Mich. 594, 551 N.W.2d 71 (1996). Our court of appeals has likewise suggested that our state constitutional guarantee of due process might require police in certain circumstances to inform suspects that counsel has been retained or is available. People v. Page, 907 P.2d 624, 633 (Colo.App.1995), cert. denied, No. 95SC313 (Colo. Dec. 11, 1995). We express no opinion on the narrow question of attorney access raised by the court of appeals, but merely cite Moran for the general proposition that a criminal suspect need not be informed of every fact which might impact the wisdom of a decision to waive Miranda rights.	{ "pile_set_name": "FreeLaw" }
17‐869 Conte v. Emmons 1 In the 2 United States Court of Appeals 3 For the Second Circuit 4 ________ 5 6 AUGUST TERM, 2017 7 8 ARGUED: MARCH 26, 2018 9 DECIDED: JULY 10, 2018 10 11 No. 17‐869‐cv 12 13 ANTHONY CONTE, 14 Plaintiff‐Appellee, 15 16 v. 17 18 BOB EMMONS, Individually and as Assistant District Attorney of 19 Nassau County, New York, WILLIAM WALLACE, Individually and as 20 Assistant District Attorney of Nassau County, New York, MIKE 21 FALZARNO, Individually and as Special Investigator for the Office of 22 the District Attorney of Nassau County, New York, 23 Defendants‐Appellants, 24 25 Larry Guerra, City of New York, Rhoda Zwicker, Individually and 26 as a Clerk in the Nassau County District Attorneyʹs Office, Nassau 27 County, New York, Nassau County District Attorneyʹs Office, 28 Katherine Rice, Individually and as District Attorney of Nassau 29 County, New York, Christina Sardo, Individually and as Assistant 30 District Attorney of Nassau County, New York, Nassau County, 31 New York, Denis E. Dillon, Individually and as Former District 32 Attorney of Nassau County, New York, Lisa Bland, Individually and 33 as Attorney for the Police Department of the City of New York, Tefta 34 Shaska, Individually and as a Detective for the Police Department of 35 the City of New York, New York City Police Department, Robert 2 No. 17‐869 1 Vinal, Individually and as Deputy Commissioner of the Police 2 Department of the City of New York, John and Jane Does, 1‐20, 3 Unknown Individuals and Employees of the Nassau County District 4 Attorneyʹs Office, Phillip Wasilausky, Individually and as Assistant 5 District Attorney of Nassau County, New York, 6 7 Defendants. 8 ________ 9 10 Appeal from the United States District Court 11 for the Eastern District of New York. 12 No. 06‐cv‐04746 – Joseph F. Bianco, Judge. 13 ________ 14 15 Before: WALKER AND POOLER, Circuit Judges, COTE, District Judge. 16 ________ 17 Robert Emmons and William Wallace, prosecutors in the 18 Nassau County District Attorney’s Office, and Michael Falzarno, an 19 investigator in the Office, appeal from the denial of their post‐trial 20 motion for judgment as a matter of law, and the corresponding entry 21 of judgment following a jury verdict in favor of Plaintiff Anthony 22 Conte, on Conte’s claims against them for tortious interference with 23 contract under New York law. Because we conclude that there was 24 insufficient evidence for a reasonable juror to have found at least two 25 elements of Conte’s claims—intent and causation—we REVERSE. 26 Judge POOLER dissents in a separate opinion. 27  Judge Denise Cote, of the United States District Court for the Southern District of New York, sitting by designation. 3 No. 17‐869 1 ________ 2 3 ELIZA MAE SCHEIBEL, Wilson Elser Moskowitz 4 Edelman & Dicker LLP (Peter Meisels, on the brief), 5 White Plains, NY, for Defendants‐Appellants. 6 MICHAEL H. ZHU, New York, NY, for Plaintiff‐ 7 Appellee. 8 ________ 9 10 JOHN M. WALKER, JR., Circuit Judge: 11 Robert Emmons and William Wallace, prosecutors in the 12 Nassau County District Attorney’s Office, and Michael Falzarno, an 13 investigator in the office, appeal from the denial of their post‐trial 14 motion for judgment as a matter of law, and the corresponding entry 15 of judgment following a jury verdict in favor of Plaintiff Anthony 16 Conte, on Conte’s claims against them for tortious interference with 17 contract under New York law. Because we conclude that there was 18 insufficient evidence for a reasonable juror to have found at least two 19 elements of Conte’s claims—intent and causation—we reverse. 20 Conte alleged in relevant part that appellants tortiously 21 interfered with his contracts when appellants investigated the 22 activities of I Media, a company Conte founded to produce and 23 distribute TV Time, a television magazine. The investigation focused 24 principally on Conte’s possible defrauding of “route distributors,” 25 individuals who paid I Media upfront for the exclusive right to 26 distribute TV Time in a given area, and were to receive in return a sum 4 No. 17‐869 1 for each magazine they delivered. To state it briefly, I Media faced 2 serious difficulties in its early stages, and certain route distributors— 3 who had paid upfront for their routes but had not received any 4 magazines to distribute—became suspicious. Two distributors made 5 complaints to the District Attorney’s Office, which assigned the 6 investigation to appellants at the Office’s Criminal Bureau. 7 Ultimately, nearly fifty individuals reported their suspicions to the 8 District Attorney’s Office, which assigned the investigation to 9 appellants at the Office’s Criminal Frauds Bureau. Appellants 10 investigated the complaints, which included the issuance of grand 11 jury document subpoenas and significant inquiries to route 12 distributors, printers, and potential advertisers. No charges were 13 ultimately filed, and, when I Media subsequently failed, Conte sued 14 appellants and others for, inter alia, tortious interference with contract. 15 Following the close of evidence at a jury trial, appellants moved 16 pursuant to Fed. R. Civ. P. 50(a) for judgment as a matter of law. The 17 district court denied the motion and submitted the claims to the jury 18 which ultimately found in favor of Conte on his tortious interference 19 with contract claims against appellants and subsequently awarded 20 Conte $1,381,500, which included $678,000 in punitive damages.1 Following thorough rulings at the motion to dismiss stage, 2008 WL 1 905879 (E.D.N.Y. Mar. 31, 2008), and the summary judgment stage, 2010 WL 3924677 (E.D.N.Y. Sept. 30, 2010), trial was narrowed to the following 5 No. 17‐869 1 Appellants renewed their motion for judgment as a matter of law 2 pursuant to Fed. R. Civ. P. 50(b), and, following developments not 3 relevant here, see Conte v. County of Nassau, 596 F. App’x 1 (2d Cir. 4 2014); Conte v. Emmons, 647 F. App’x 13 (2d Cir. 2016), the district 5 court denied the motion and directed entry of judgment in favor of 6 Conte on the relevant claims. This appeal followed. 7 DISCUSSION 8 To warrant post‐verdict judgment as a matter of law, the 9 movant must show that the evidence, when viewed most favorably to 10 the non‐movant, was insufficient to permit a reasonable juror to have 11 found in the non‐movant’s favor. See S.E.C. v. Warde, 151 F.3d 42, 46 12 (2d Cir. 1998). The standard is a high one, met only in “rare claims: (i) unlawful arrest under New York law and 42 U.S.C. § 1983 against Assistant District Attorney Philip Wasilausky; (ii) abuse of process under New York law and § 1983 against appellants and Wasilausky; (iii) a Monell claim against Nassau County; and (iv) tortious interference with contract under New York law against appellants and Wasilausky. In resolving defendants’ motion for judgment as a matter of law under Fed. R. Civ. P. 50(a), the district court dismissed the Monell claims against Nassau County but submitted the remaining claims to the jury. As discussed, the jury found against appellants on Conte’s tortious interference with contract claims, but it ruled in their favor on Conte’s claims against them for abuse of process. The jury separately found Wasilausky liable on Conte’s unlawful arrest claims, but not on Conte’s claims for abuse of process and tortious interference with contract. The district court granted Wasilausky judgment as a matter of law on Conte’s unlawful arrest claims in its first post‐trial opinion. See Conte v. County of Nassau, 2013 WL 3878738, at 18 (E.D.N.Y. July 26, 2013). We affirmed. See Conte v. County of Nassau, 596 F. App’x 1, 3 (2d Cir. 2014). 6 No. 17‐869 1 occasions.” George Basch Co. v. Blue Coral, Inc., 968 F.2d 1532, 1536 (2d 2 Cir. 1992). The movant, generally, must be able to show a “complete 3 absence of evidence supporting the verdict [such] that the jury’s 4 findings could only have been the result of sheer surmise and 5 conjecture.” Luciano v. Olsten Corp., 110 F.3d 210, 214 (2d Cir. 1997) 6 (internal quotation marks omitted).2 For the reasons that follow, 7 appellants met that strict burden here. 8 The unchallenged jury instructions correctly listed the elements 9 of a tortious interference with contract claim under New York law: 10 (i) the existence of a contract; (ii) defendants’ knowledge of that 11 contract; (iii) defendants’ intentional inducement of a breach of that 12 contract; (iv) a breach; (v) but for the defendants’ actions, that contract 13 would not have been breached; and (vi) damages. App’x 611. After 2 Conte argues that appellants relied on contentions in their renewed Rule 50(b) motion that they did not raise in their initial pre‐verdict Rule 50(a) motion. Generally, this would require appellants to make an additional showing to obtain their requested relief, specifically, that entry of judgment as a matter of law “is required in order to prevent manifest injustice.” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 164 (2d Cir. 1998). But, on appeal, Conte has not responded to appellants’ argument that he may not challenge the insufficiencies in appellants’ Rule 50(a) motion because he did not bring those issues to the attention of the district court in his opposition to appellants’ Rule 50(b) motion. Conte’s counsel acknowledged the point at oral argument. Contrary to our dissenting colleague’s recollection, see dissenting op. at 4, 7 n.3, Conte’s counsel conceded in no uncertain terms that we are to review for sufficiency of the evidence under the general standard of review for judgments as a matter of law that is identified in the text above. Oral Arg. Tr. 9:13–10:08. 7 No. 17‐869 1 a careful review of the trial record, we conclude that appellants are 2 entitled to judgment as a matter of law because no reasonable juror 3 could have properly inferred from the evidence that at least two 4 elements were satisfied: intent and causation. 5 Intent. The jury was properly instructed that appellants could 6 be liable for tortious interference with contract only if they acted with 7 the “purpose of inducing [a] breach of contract.” App’x 611. See, e.g., 8 NBT Bancorp Inc. v. Fleet/Norstar Fin. Grp., 87 N.Y.2d 614, 621 (1996). 9 In NBT Bancorp, the Court of Appeals noted that the requirement of 10 “an existing, enforceable contract” is what distinguishes a claim for 11 tortious interference with contract from a claim for tortious 12 interference with business relations, as to which interference with 13 prospective contracts will suffice, id., a separate tort claim that Conte 14 did not bring. It is clear that New York law emphasizes the 15 requirement that a tortious interference with contract claimant 16 establish that the defendant purposefully intended to cause a contract 17 party to breach a particular contract. Id. at 620 (“Ever since tortious 18 interference with contractual relations made its first cautious 19 appearance in the New York Reports . . . our Court has repeatedly 20 linked availability of the remedy with a breach of contract.”). As 21 stated in NBT Bancorp, although the contract‐based claim carries a 22 lesser culpability requirement than the more general business‐ 23 relations claim, the contract‐based claim is strictly “defined by the 8 No. 17‐869 1 nature of the plaintiff’s enforceable legal rights.” Id. at 621 (citing 2 Guard‐Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 193 3 (1980)); see also Carvel Corp. v. Noonan, 3 N.Y.3d 182, 189–90 (2004). 4 Here, there was no evidence presented to permit a reasonable 5 inference that appellants met the standard as set forth by the above 6 authorities. To begin, there was no evidence that appellants had any 7 personal interest in the breach of any contracts that Conte may have 8 had with route distributors, printers, or advertisers. Rodrigues v. City 9 of New York, 193 A.D.2d 79 (1st Dep’t 1993) is instructive. There, the 10 First Department allowed an investigatory subject’s tortious 11 interference with contract claim against prosecutors to proceed past 12 the pleading stage, but only on allegations that the prosecutors 13 “sabotage[d]” plaintiffs’ contracts “in order to extort bribes from 14 plaintiffs.” Id. at 88 (internal quotation marks omitted). We are far 15 afield from Rodrigues, which is the only instance we know of in which 16 a court recognized with approval a New York law tortious 17 interference with contract claim against prosecutors (or their staff) for 18 their conduct in investigating allegations of criminal activity. 19 Conte’s strongest evidence on intent (viewed in his favor) was 20 that one of the appellants, Investigator Falzarno, had a personal 21 animus towards Conte, which manifested itself in an aggressive and 22 harmful handshake on delivery of a document subpoena, stopping a 23 route distributor on the street to tell him that Conte was a “fraud[]” 9 No. 17‐869 1 and “scam artist” and threatening that he could be arrested if he told 2 Conte about that conversation, and a comment reflecting Falzarno’s 3 intent to “get” Conte. Conte also relies on the fact that Assistant 4 District Attorney Wallace contacted certain of Conte’s counterparties 5 informing them that Conte was under investigation for fraud, and 6 that the term “Ponzi scheme” may have come up in a conversation 7 Wallace had with an attorney. There was virtually no evidence 8 pertaining to Assistant District Attorney Emmons’ state of mind. 9 For the jury to have inferred that this investigative conduct 10 evinced an ulterior purpose outside of appellants’ law enforcement 11 goals could only have been “sheer surmise and conjecture.” Warren 12 v. Pataki, 823 F.3d 125, 139 (2d Cir. 2016) (quoting S.E.C. v. Ginder, 752 13 F.3d 569, 574 (2d Cir. 2014)). Without evidence to the contrary, see 14 generally Rodrigues, 193 A.D.2d at 88, these actions cannot reasonably 15 be interpreted as anything but those of public servants pursuing 16 aggressively, and perhaps overly so, their law enforcement mandate. 17 At best, the evidence showed that appellants became passionately 18 invested in effectuating that mandate, but that does not allow for the 19 inference that their intent went beyond their lawful charge. Rather, 20 the record makes clear that any effect the investigation had on the 21 destruction of Conte’s contracts was simply incidental to appellants’ 22 intent to get to the bottom of widely reported allegations of 23 fraudulent conduct and, moreover, that appellants never targeted 10 No. 17‐869 1 particular contracts. And New York law, for good reason, does not 2 allow tortious interference with contract claims to “rest on conduct 3 that is incidental to some other lawful purpose.” Aetna Cas. & Sur. Co. 4 v. Aniero Concrete Co., 404 F.3d 566, 589 (2d Cir. 2005) (per curiam) 5 (internal quotation marks omitted); see also Montano v. City of 6 Watervliet, 47 A.D.3d 1106, 1110 (3d Dep’t 2008) (dismissing claim 7 where “Plaintiff failed to offer proof that [an official’s] conduct was 8 not in furtherance of his official duties and not motivated by genuine 9 municipal/public health and safety concerns”). 10 In our view, it would be to the detriment of law enforcement to 11 accept the jury’s inferential finding of a purposeful intent on this bare 12 record. It would invite suits against prosecutors (and their staff) any 13 time a plausible allegation that the subject of an investigation lost 14 business as the result of a reasonably triggered investigation is 15 coupled with some indication that the investigators were somewhat 16 overzealous in going after the subject. The jury’s intent finding that 17 the appellants purposefully targeted particular contracts is wholly 18 without support. 19 Causation. The jury was also properly instructed that for 20 Conte to recover, he must have shown that “but for the defendants’ 21 actions, the third party would not have breached.” App’x 611. See, 22 e.g., Cantor Fitzgerald Assocs., L.P. v. Tradition N. Am., Inc., 299 A.D.2d 23 204, 204 (1st Dep’t 2002) (“An essential element of such a claim is that 11 No. 17‐869 1 the breach of contract would not have occurred but for the activities 2 of the defendant.”). Conte failed to establish this element as well. Our 3 review of the trial record unearths no admissible evidence allowing 4 for a reasonable inference that any of Conte’s contracting 5 counterparties stopped performing under a contract because of 6 anything appellants did or said. 7 Conte’s theory of causation as to his tortious interference with 8 contract claims was that his contracting counterparties breached their 9 agreements with him as a result of appellants’ investigative conduct. 10 At trial, Conte called only one route distributor, with whom he was 11 purportedly under contract, that interacted with any of the 12 appellants. The distributor, Paul Hoppe, testified that Falzarno 13 threatened him and told him and others that Conte was a fraud. But 14 Hoppe’s testimony was unequivocal that his “conversation with [] 15 Falzarno had no bearing, whatsoever, on [his] continued business 16 relationship with I Media,” and that he stopped working with Conte 17 simply because ”[t]he product wasn’t available.” App’x 141. Others 18 consistently testified similarly about I Media’s unsuccessful 19 relationships with printers and potential advertisers. See App’x 456, 20 486, 540–41. No witness remotely testified that they stopped 21 performing under a contract with Conte because of the statements or 22 actions of appellants. 12 No. 17‐869 1 Notably, in summation, Conte specifically listed thirty‐one 2 non‐testifying individuals and entities whose contracts were 3 purportedly interfered with. App’x 582–83. But because not one of 4 them testified, the record is silent as to whether, and, as importantly, 5 why, they stopped performing under their contracts with Conte. 6 Conte acknowledged this deficiency, conceding that “people are 7 reluctant to speak up and testify about what happened in this case.” 8 App’x 581. Aware of his lack of direct evidence, Conte asked the jury 9 to instead rely on “circumstantial evidence,” “and the logical 10 inferences that common sense should lead you to draw.” App’x 581. 11 But to conclude with no direct evidence that third parties breached 12 their contracts with Conte due to the acts of appellants—rather than 13 for business reasons or because of word spreading from the 14 disgruntled individuals with whom Conte battled in the early stages 15 of I Media—was not a permissible inference, but an improper 16 speculation. 17 In short, there was no evidence that anyone stopped 18 performing under a specific contract because of anything said or done 19 by appellants. And, to the extent the jurors relied on Conte’s 20 testimony about what Conte’s contracting counterparties told him 21 were the reasons for their breach, they relied improperly on hearsay 22 testimony. 13 No. 17‐869 1 In sum, there was insufficient evidence to support the requisite 2 inferential findings of intent and causation. “[T]he jury’s findings 3 could only have been the result of sheer surmise and conjecture.” 4 Luciano, 110 F.3d at 214. Although we rarely exercise our authority to 5 overturn a jury’s verdict, it is what the law requires in this case.3 6 CONCLUSION 7 We REVERSE the judgment of the district court and REMAND 8 with directions to enter judgment for appellants. Appellants argue in the alternative that the jury’s verdicts on the 3 tortious interference with contract claims must be overturned because appellants are absolutely and qualifiedly immune from suit under New York law. Because we conclude that the evidence was insufficient to support those claims on their merits, we need not reach the question of immunity. 1 POOLER, Circuit Judge: 2 In this day and age, it is not a common occurrence for a pro se plaintiff to 3 even present his case to the jury, let alone to convince a jury to return a verdict in 4 his favor, let alone to win that verdict against members of a district attorney’s 5 office. But Anthony Conte did all of this. Appellants now attempt to undo that 6 remarkable result by alleging deficiencies in his proof that they failed to point to 7 when Conte still had the opportunity to present more evidence. The district 8 court, having experienced the trial firsthand, concluded that the shortcomings in 9 Conte’s proof were not egregious enough to merit overturning a jury verdict. My 10 colleagues unwisely second guess that evaluation, declining even to grant Conte 11 a chance to amend his evidence at a new trial. Because I think the jury’s verdict 12 has sufficient grounding in the evidence to make it an inappropriate use of our 13 discretion to overturn it, I respectfully dissent. 14 I. Forfeiture and Standard of Review 15 Unlike my colleagues (but like the district court), I would find that 16 Appellants forfeited their right to raise the arguments in front of us by failing to 17 raise them in their pre‐verdict Rule 50(a) motion. Thus, I would only overturn 18 the jury’s finding of tortious interference if necessary to correct a manifest 1 1 injustice. See Lore v. City of Syracuse, 670 F.3d 127, 153 (2d Cir. 2012) (“As to any 2 issue on which proper Rule 50 motions were not made, JMOL may not properly 3 be granted by the district court, or upheld on appeal, or ordered by the appellate 4 court unless that action is required in order to prevent manifest injustice.”). 5 As the official comments to the Federal Rules put it: “Rule 50(b) does not 6 authorize a party to challenge the sufficiency of the evidence for the first time 7 after the verdict. The only thing the verdict loser can do is renew a preverdict 8 motion.” Fed. R. Civ. P. 50, commentary. “Because the Rule 50(b) motion is only 9 a renewal of the preverdict [Rule 50(a)] motion, it can be granted only on 10 grounds advanced in the preverdict [Rule 50(a)] motion.” Lore, 670 F.3d at 153. 11 This requirement is meant to “give the [non‐moving] party an opportunity to 12 cure the defects in proof that might otherwise preclude him from taking the case 13 to the jury” when he still has a chance to do so. Galdieri‐Ambrosini v. National 14 Realty & Development Corp., 136 F.3d 276, 286 (2d Cir. 1998); see also Weisgram v. 15 Marley Co., 528 U.S. 440, 454 (2000) (discussing the importance of the “notice, 16 before the close of evidence, of the alleged evidentiary deficiency”). To prevent a 17 party seeking judgment as a matter of law from “lur[ing] his opponent into 18 failing to present evidence that would cure the asserted defect,” Fabri v. United 2 1 Technologies Int’l, Inc., 387 F.3d 109, 116 (2d Cir. 2004), the requirement that an 2 argument raised on a Rule 50(b) motion must have specifically been raised in a 3 Rule 50(a) motion should not be overlooked as “a mere technicality.” Cruz v. 4 IBEW, 34 F.3d 1148, 1155 (2d Cir. 1994). 5 The district court applied this reasoning in holding that Appellants 6 forfeited their right to raise these arguments in their post‐verdict motion by 7 failing to raise them in their pre‐verdict motion.1 Conte v. County of Nassau, 06‐cv‐ 1 The district court referred to these arguments as “waived”—following the terminology used in our cases—but the Supreme Court has repeatedly emphasized that “[a]lthough jurists often use the words interchangeably, forfeiture is the failure to make the timely assertion of a right; waiver is the intentional relinquishment or abandonment of a known right.” Kontrick v. Ryan, 540 U.S. 443, 458 n.13 (2004) (internal punctuation omitted); see also Hamer v. Neighborhood Housing Services of Chicago, 138 S. Ct. 13, 17 n.1 (2017); Stern v. Marshall, 564 U.S. 462, 482 (2011); United States v. Olano, 507 U.S. 725, 733 (1993); Freytag v. Commissioner, 501 U.S. 868, 894 n.2 (1991) (Scalia, J., concurring). In particular, the Court has discussed failure to file a Rule 50 motion in terms of forfeiture rather than waiver. See Ortiz v. Jordan, 562 U.S. 180, 189, n.6 (2011); Unitherm Food Systems, Inc. v. Swift Eckrich, Inc., 546 U.S. 394, 404‐05 (2006). This terminological distinction does not seem to make a substantive difference in civil cases. In the criminal context, waived issues are generally unreviewable and forfeited issues are reviewed for plain error under Rule 52(b) of the Federal Rules of Criminal Procedure. See United States v. Parse, 789 F.3d 83, 112‐13 (2d Cir. 2015). In civil cases, 28 U.S.C. § 2106 allows “any…court of appellate jurisdiction” to “remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances,” which would seem to permit “[a]rguments raised for the first time on appeal,” whether waived or forfeited, to “be entertained…if their consideration would prevent manifest injustice.” Unitherm, 546 U.S. at 408 3 1 4746, 2017 WL 837691, 6‐7 (E.D.N.Y. Mar. 3, 2017) (“Conte V”) Appellants now 2 argue that the district court erred in doing so because Conte forfeited his right to 3 benefit from their forfeiture by failing to object to it at the post‐verdict stage. 4 Conte did not respond to that argument on appeal. The majority concludes that 5 Conte’s inattention, in addition to his inability to respond to this Court’s 6 questions about it at oral argument, means we should ignore the district court’s 7 finding that Appellants forfeited their arguments. Slip op. at 5 n.2. I disagree. 8 Our discretionary practice of declining to consider arguments 9 insufficiently presented in the briefs is a way of giving force to Rule 28’s 10 requirements for what appellate briefs must contain. See Niagara Mowhawk Power 11 Corp. v. Hudson River‐Black River Regulating District, 673 F.3d 84, 107 (2d Cir. 12 2012); Tolbert v. Queens College, 242 F.3d 58, 75‐76 (2d Cir. 2001); Fed. R. App. P. (Stevens, J., dissenting). However, at least some forfeited issues are unreviewable. See Unitherm, 546 U.S. at 407. A number of decisions in our Circuit have applied plain error review to forfeited issues in civil cases, though these decisions generally refer to the Supreme Court decision in Olano, which was a criminal case, and I know of no other authority for applying plain error review to a civil matter. See Peterson v. Islamic Republic of Iran, 876 F.3d 63, 78 (2d Cir. 2017); Kogut v. County of Nassau, 789 F.3d 36, 45 (2d Cir. 2015); Girden v. Sandals Int’l, 262 F.3d 195, 206 (2d Cir. 2001); Simms v. Village of Albion, 115 F.3d 1098, 1109 (2d Cir. 1997). We need not sort through these standards here, since, as discussed above the line, it is well established in this Circuit that issues not raised in a Rule 50(a) motion are reviewed for manifest injustice. 4 1 28(a) (appellants’ briefs), 28(b) (appellees’ briefs). Generally we exercise this 2 discretion when an appellant has failed to properly present an issue with the 3 district court’s judgment for our review, since it is an appellant’s responsibility to 4 do so in the first instance. See, e.g., Niagara Mowhawk, 673 F.3d at 107; McCarthy v. 5 S.E.C., 406 F.3d 179, 186 (2d Cir. 2005); United States v. Barnes, 158 F.3d 662, 672‐75 6 (2d Cir. 1998); Fed. R. App. P. 28(a)(5). An appellee does not need to present her 7 own statement of the issues “unless the appellee is dissatisfied with the 8 appellant’s statement” or unless she is a cross‐appellant. Fed. R. App. P. 28(b)(2); 9 see also Frank, 78 F.3d at 832‐33 (discussing the parallel obligations of an appellant 10 and cross‐appellant). She does, however, have to include her “contentions and 11 the reasons for them” in more than conclusory fashion. Fed. R. App. P. 28(b), 12 28(a)(8)(A). We have occasionally treated an appellee’s failure to provide a 13 counterargument as a concession on that issue. See Tolbert, 242 F.3d at 75; Norton 14 v. Sam’s Club, 145 F.3d 113, 117 (2d Cir. 1998).2 15 However, there is no default judgment on appeal. When an appellant has 16 properly raised an issue and an appellee has failed to respond to the appellant’s 2 In Norton, we found that “an appellee ha[d] not properly preserved his right to object to the appellant’s attempt to claim insufficiency of the evidence.” 145 F.3d at 117. 5 1 arguments on that issue, we should not rule in favor of appellant merely because 2 she said something rather than nothing. Declining to consider an insufficiently 3 raised issue allows us to avoid distorting the law by making a decision without 4 adequate briefing. Exercising our discretion to rule in favor of the only party to 5 present arguments on an issue risks the opposite: distorting the law because of 6 inadequate briefing. Moreover, when an appellee fails to respond to an 7 appellant’s arguments, we still have the district court’s reasoning on the issue 8 that we may rely on. See Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d 9 Cir. 2005) (“[W]e may affirm on any ground supported by the record.”) (internal 10 quotation marks omitted). Thus, our discretion to rule in favor of appellants 11 because appellees have failed to respond should be exercised more sparingly and 12 only once we have taken account of the merits, including the district court’s 13 reasoning. 14 This is a case where we should decline to exercise that discretion. 15 Appellants are incorrect in their contention that Conte’s failure to object at the 16 post‐verdict stage to their failure to raise these insufficiency arguments at the 6 1 pre‐verdict stage amounted to a forfeiture of forfeiture.3 It is true that the district 2 court could have exercised its discretion to ignore Appellants’ pre‐verdict 3 forfeiture in light of Conte’s post‐verdict failure to object. See Gronowski v. 4 Spencer, 424 F.3d 285, 297 (2d Cir. 2005); Gibeau v. Nellis, 18 F.3d 107, 109 (2d Cir. 5 1994). But it did not.4 When a district court has considered an issue, even sua 6 sponte, that issue has not been forfeited. The point of forfeiture doctrine is to 7 allow a court to exercise discretion to “refuse to consider a[n]…objection even 8 though a like objection had previously been sustained in a case in which it was 9 properly taken.” Yakus v. United States, 321 U.S. 414, 444 (1944). Exercising such 10 discretion prevents a litigant from “‘sandbagging’ the court—remaining silent 11 about his objection and belatedly raising the error only if the case does not 12 conclude in his favor.” Stern, 564 U.S. at 482 (quoting Puckett v. United States, 556 13 U.S. 129, 134 (2009)); see also Singleton v. Wulff, 428 U.S. 106, 120‐21 (1976). It also 14 allows appellate courts to avoid addressing a complicated issue for the first time 3 I also do not think we should treat Conte’s attorney’s failure to withstand questioning at oral argument as a concession. 4 Although it did not have Conte’s objection, the district court did have the benefit of our previous summary order in this matter, which explicitly mentioned the fact that Appellants “did not specifically articulate these grounds for reversal in their Rule 50(a) motion” and the forfeiture that results. Conte v. County of Nassau, 596 F. App’x 1, 6 (2d Cir. 2014) (“Conte II”). 7 1 on appeal without the benefit of a district court’s consideration of the question in 2 the first instance. These considerations do not apply when the district court has 3 considered the question, whether it did so on its own initiative or in response to 4 a party’s prompting. In other words, the district court’s attention to the 5 intricacies of Rule 50 was not error merely because Conte (proceeding pro se) 6 was inattentive to them. 7 I would thus do as the district court did and review the verdict only for 8 manifest injustice. 9 II. Intent 10 As the majority rightly notes, overturning a jury verdict for insufficient 11 evidence should only occur on the rarest of occasions, in which there is a 12 “complete absence of evidence.” Slip op. at 5 (quoting Luciano v. Olsten Corp., 110 13 F.3d 210, 214 (2d Cir. 1997)). We should exercise our discretion to overturn a jury 14 verdict even more cautiously if we do so on grounds not raised when the verdict 15 winner still had an opportunity to supplement the record. This hesitancy is 16 especially important when the verdict winner is a pro se litigant because 17 individuals unfamiliar with the intricacies of our legal system stand to benefit the 18 most from being put on notice as to any deficiencies of proof. Moreover, because 8 1 a directed verdict based on grounds not raised in a pre‐verdict motion deprives 2 the non‐movant of the opportunity to cure the defects in her case before it goes to 3 the jury, “if the party moving [under Rule 50(b)] has not moved for a directed 4 verdict [under Rule 50(a)], and if the court is nevertheless satisfied that justice 5 requires that the judgment be vacated for insufficiency of the evidence, the court 6 should normally grant a new trial.” Baskin v. Hawley, 807 F.2d 1120, 1134 (2d Cir. 7 1986). 8 Overturning a jury verdict without granting a new trial is all the more 9 extraordinary when most of the relevant evidence is from live testimony. Such 10 evidence is the hardest to evaluate from a proverbial cold record. We have only 11 the transcript, not the hesitations, stutters, false starts, facial expressions, 12 gestures, miens, intonations, pacing, and other unrecorded carriers of meaning. 13 The jury took all of the latter into account in evaluating the credibility of 14 witnesses and in coloring their understanding of the words uttered. “[W]e may 15 not overturn the jury’s own reasonable interpretations or its credibility 16 determinations.” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 164 (2d Cir. 1998). We 17 should be even more hesitant when the district court judge who has presided 18 over the trial—and thus has more than a cold record—upholds the jury verdict. 9 1 See Unitherm, 546 U.S. at 401 (emphasizing the importance of giving the district 2 judge, “who saw and heard the witnesses and has the feel of the case which no 3 appellate printed transcript can impart,” a first review of a jury verdict). 4 The trial transcript reveals facts that the jury could have used as a basis for 5 its conclusion that Appellants’ interference with Conte’s and I Media’s contracts 6 was intentional and that it was not “motivated by genuine municipal/public 7 health and safety concerns (regardless of their merit).” Montano v. City of 8 Watervliet, 47 A.D.3d 1106, 1110 (3d Dep’t 2008). The majority recognizes the 9 evidence of Falzarano’s antagonism towards Conte. Slip op. at 8. My colleagues 10 also acknowledge that there was at least some evidence that could have 11 supported an inference that Wallace used his position as an Assistant District 12 Attorney to intentionally spread doubt about the legality and viability of Conte’s 13 business, but they improperly discount it, rather than credit it as the jury must 14 have done. Id. 15 The district court discussed at some length the evidence pertaining to 16 Wallace’s contact with printers who worked with or considered working with 17 Conte as well as Wallace’s contact with a class action attorney who brought (then 18 dropped) a case against Conte. See Conte V, 2017 WL 837691, at 15. Consistent 10 1 with the district court’s conclusion, the jury could have discounted Wallace’s 2 self‐serving testimony regarding these matters; it could have disbelieved the one 3 printer who testified regarding his purported reasons for cutting off business 4 with Conte; and it could have accepted Conte’s version of the story. [A461‐62.] It 5 could have interpreted the September 8, 2005 email with the class action attorney 6 as only a late entry in an ongoing correspondence in which Wallace egged on the 7 attorney and discounted Wallace’s protests to the contrary. [A415‐16.] 8 I agree that Emmons presents the most difficult case, but the jury could 9 have concluded that the coordinated efforts of his department reflected his 10 influence. Wallace testified that it was Emmons that instructed him to contact 11 Conte’s printers, and Emmons testified that he did consult on the case. [A406.] 12 The jury could have extrapolated that Emmons was more involved than he was 13 representing and that Falzarano’s and Wallace’s behavior revealed their shared 14 intent.5 5 Appellants note that Wasilausky was not found liable for tortious interference, which they argue means that “the jury expressly rejected the argument that the letters [Wasilausky sent to route distributors soliciting complaints] constituted tortious interference.” Appellants’ Br. at 43. This is one reason the jury could have decided that Wasilausky was not liable, but there are others that are consistent with the conclusion that the letters amounted to intentional interference. For instance, the jury could have concluded that Wasilausky, without the requisite mental state, was just carrying out orders from Emmons, 11 1 The majority faults Conte for failing to conform his allegations to the 2 model of Rodrigues, in which public officials’ motives for interfering with 3 contracts was the extortion of bribes. Slip op. at 7‐8 (relying on Rodrigues v. City of 4 New York, 193 A.D.2d 79 (1st Dep’t 1993). But Rodrigues does not close the 5 universe of impermissible ulterior motives just because it is the only reported 6 case we can find in which prosecutors were found liable for intentional 7 interference with contract. The jury here could have concluded that Appellants, 8 frustrated that Conte’s behavior did not technically violate any law, nevertheless 9 decided to use their investigatory powers and their cloak of state authority to 10 shut his business down. 11 I am sensitive to the majority’s concern that intentional interference not lie 12 for zealous, even overzealous, investigation into potential business crimes. And I 13 acknowledge the thin evidence of intent. But more than a showing of thin 14 evidence is required to find a jury verdict to be so manifestly unjust that it 15 should be overturned regardless of the verdict winner’s lack of opportunity to 16 thicken his case before deliberations and without granting him a new trial in who had the requisite mental state. We simply do not know based on the lack of specificity in the jury verdict. 12 1 which to do so. See Kirsch, 148 F.3d at 165 (A court cannot find manifest injustice 2 “where, had Defendants properly raised the issue at trial, it may be that Plaintiffs 3 would have been able to present additional evidence.”). The jury considered the 4 issues presented with some care, finding in favor of some of the defendants on 5 some counts and in favor of Conte on others. Appellants apparently did not, 6 failing even to raise basic statute of limitations arguments before the verdict was 7 announced. See Conte II, 596 F. App’x at 6. Even if the record developed by this 8 pro se plaintiff leaves some room for doubt, I do not think it was a manifest 9 injustice that the jury found his version of the story more convincing. Upholding 10 this verdict on a unique case does not alter the law in any way that will make 11 future investigations more difficult. In short, the district court was correct to find 12 that “had [Appellants] alerted [Conte] to the defects in proof they now identify, 13 he may have been able to cure them.” Conte V, 2017 WL 837691, at 19. 14 III. Causation 15 Turning to causation, my colleagues point out that Hoppe, the one route 16 distributor to testify about being intimidated, also testified that this intimidation 17 did not deter him from continuing to work with Conte. Slip op. at 11. True, but 18 Hoppe also testified that he heard from other distributors that Falzarano had 13 1 contacted them.6 [A139.] And it is uncontested that the Nassau County District 2 Attorney’s office sent letters to many route distributors and that many of these 3 route distributors submitted complaints in response. The jury could have 4 concluded that other route distributors had less fortitude than Hoppe. 5 Alternatively or complementarily, the jury could have distrusted the 6 explanation given by Hubbard, the one printer to testify, for his company’s 7 failure to deal with Conte. [A461‐62.] And the majority acknowledges that 8 Wallace testified that he “may” have called Conte’s business a “Ponzi scheme” 9 when talking with Hubbard. Slip op. at 8. Thus, the jury could have inferred (and 10 not just “surmise[d],” Slip op. at 12 (quoting Luciano, 110 F.3d at 214)) that 11 Hubbard’s company backed out of a contract with I Media after Wallace warned 12 him away from Conte’s business. 13 IV. Conclusion 14 In sum, I do not think we have a compelling enough reason to replace this 15 jury’s conclusions with our own. I would affirm the district court’s thoroughly 6 That testimony may be hearsay, but it was not objected to at trial and Appellants raise no evidentiary objection in front of us. Moreover, had Conte been put on notice of the problem with that testimony, he may have been able to put on additional witnesses or otherwise cure his defect in proof. 14 1 considered determination that the jury verdict against Appellants was not 2 manifestly unjust. Even if I were inclined to vacate the verdict, I would order a 3 new trial to allow deficiencies of proof to be corrected before a jury. Appellants 4 should not be able to get away with failing to properly defend a case just because 5 they underestimated the pro se plaintiff who sued them. 15	{ "pile_set_name": "FreeLaw" }
172 S.W.3d 194 (2005) In the ESTATE OF Patricia Raye HALBERT, Deceased. No. 06-04-00074-CV. Court of Appeals of Texas, Texarkana. Submitted March 17, 2005. Decided August 18, 2005. Rehearing Overruled September 27, 2005. 195 John R. Mercy, Mercy & Carter & Tidwell, LLP, Texarkana, M. Keith Dollahite, M. Keith Dollahite, PC, Tyler, for appellant. Ken W. Good, Kent, Good & Anderson, PC, Tyler, for Jane Carroll. Michael E. Gazette, Law Office of Michael E. Gazette, Tyler, for Judy Box. Howard W. Britain, Tyler, pro se. Before MORRISS, C.J., ROSS and CARTER, JJ. OPINION Opinion by Chief Justice MORRISS. Patricia Raye Halbert died in 2000. She left behind three putative wills[1] and her immediate familyhusband, Robert L. Halbert (Robert), and three adult children, Robert Stephen Halbert (Steve), Judith H. Trickey Box (Judy), and Patti Jane H. Carroll (Jane)divided on which of the three wills should be probated. Robert urged the probate of Will Three, while Judy urged the probate of Will Two. Ultimately, the dispute led to a mediation and a partial Mediated Settlement Agreement (MSA),[2] which is the subject of this appeal. 196 In competing motions for summary judgment arising from what became rather convoluted litigation, Judy sought to enforce, and Robert sought to have declared unenforceable, the MSA. The trial court granted Judy's motion for summary judgment to enforce the MSA and denied Robert's motion. In this opinion, we (A) set out a more detailed account of the factual and procedural history of this case, and then (B) provide our decision and legal analysis: we hold that (1) the MSA is an agreement not to probate a will so it must provide an alternative distribution scheme but (2) the MSA does not provide an alternative distribution scheme so it is unenforceable. We reverse the judgment of the trial court and render judgment that the MSA is unenforceable. (A) FACTUAL AND PROCEDURAL HISTORY Robert and Patricia Halbert were married and had three children: Steve, Judy, and Jane. In 1980, Patricia executed her first will (Will One). In this will, she named Robert the independent executor and left all her property to him unless he predeceased her, in which case the property would go to their three children. In 1986, Patricia executed a second will (Will Two), in which she named Judy as independent executor and left all her property to the three children. Will Two made no provision for Robert. In 1997, Patricia executed a third will (Will Three), a holographic instrument which republished Will One. Two months following the execution of Will Three, Patricia executed a deed conveying all her real property to Robert (1997 Deed).[3] This deed was recorded later in time, approximately one month before Patricia's death on July 3, 2000. Robert applied to probate Will One pursuant to the terms of Will Three. Judy contested Robert's application to probate Will One and applied to probate Will Two, in which all of Patricia's property went to the children. Robert then filed an amended application to probate Will Three which, he argued, republished Will One or, alternatively, revoked Will Two, causing Patricia's estate to pass by intestacy. As we will discuss further at a later point, Jane, the youngest child, entered her first appearance,[4] stating that she was a beneficiary under Will Two and renouncing any right to serve as personal representative. The parties then jointly moved to "issue an order requiring the parties to submit this matter to mediation." The trial court granted this motion. On September 10, 2001, Robert and the three children attended a mediation from which came the MSA. Boilerplate, introductory provisions of this MSA indicate that the parties "have agreed to settle the above-referenced cause on the terms set forth herein, and enter into this Agreement on said date." The MSA also provides that, "in the event of any dispute arising from the mediation or this Agreement, the parties agree to submit same" to the named mediator. The MSA also included the following provisions: The parties understand that it is intended that there is to be a more comprehensive compromise settlement agreement; releases, and/or further documentation of this settlement; nevertheless, 197 the parties intend this Agreement to comply with the requirements of Rule 11 T.R.C.P., and Section 154.071, T.C.P.R.Code. Each party agrees to execute and file an agreed order dismissing all claims in the above case with prejudice. The parties agree that, as soon as possible, a closing of this transaction shall occur when the parties will exchange executed settlement documents and exchange the consideration called for. In the handwritten, sometimes difficult to read, substantive portions of the MSA, Judy agrees to release any claims she has against the estate and against Robert in exchange for real property, specifically Lot 2B, Block 1013 on Loop 323 in Tyler, Smith County, Texas, worth approximately $1.2 million. The MSA provides that Robert, Steve, and Jane "will resolve agreement between themselves within 10 days." No one disputes the fact that Steve and Jane never reached an agreement with Robert in this matter. Robert and Steve signed the MSA as defendants. Jane's attorney signed on the defendant's side of the page, on Jane's behalf, with the limitation that the MSA was "approved as to settlement with Jane." The MSA appears to be intended as a settlement only of Judy's claims on the estate or against her other family members.[5] Jane had made an appearance in the will contest but had not taken an adversarial role at that point. Later, although she had been treated in the pleadings as a defendant, Jane filed her own contest to Robert's application to probate Will Three. Jane argued below that the trial court should deny Judy's motion for summary judgment. In the trial court's final order, Jane is named as a defendant. In response to Judy's motion to enforce the parties' MSA, Jane filed her answer and denied all of Judy's allegations. Summary judgment was granted against Robert, Steve, and Jane, but Judy's award for attorney's fees was imposed against only Robert and Steve.[6] However, despite her role in the proceeding below, Jane has filed an appellee's brief in this matter and now argues to this Court that "the trial court was correct in granting [Judy's] traditional and no evidence motion for summary judgment and in denying [Robert's] motion for summary judgment." So, Jane now takes the position that the MSA is valid and enforceable. Shortly after the MSA was signed, Judy sued to cancel the 1997 Deed.[7] Judy's suit alleged that the deed did not have a sufficient property description to be valid. Judy explains in her brief that this suit was instituted at the request of Robert's attorneys, using pleadings prepared by them. The record supports this contention as well through a letter from Robert's former attorney discussing the strategy that Judy file this suit, and then the parties would settle that suit, resulting in title to Lot 2B vesting in a manner "contemplated by the agreement." Judy's suit to 198 cancel the 1997 Deed was consolidated into the will contest, where it is still pending. On November 16, 2001, Judy also filed a pleading in the will contest alleging that she was ready to perform under the MSA, that Robert had failed to comply with the MSA, and that the trial court should order specific performance of the MSA ("Motion for Specific Performance of Mediated Settlement Agreement"). Robert denied the MSA was a valid and enforceable contract and asserted several affirmative defenses to Judy's claim for specific performance. Steve and Jane denied Judy's allegations seeking to enforce the MSA. Later, however, Jane sought to probate Will Two, a change in her prior strategic position. Robert sought summary judgment, attacking the validity of the MSA on the following grounds: 1. Judy repudiated the MSA by filing her new lawsuit to cancel the 1997 Deed nine days after mediation. 2. The MSA is unenforceable as a family settlement agreement under In re Estate of Morris, 577 S.W.2d 748 (Tex.App.-Amarillo 1979, writ ref'd n.r.e.). 3. The MSA is not sufficiently certain to be an enforceable contract. Jane opposed those grounds and sought summary judgment against Robert, Steve, and Jane, seeking to enforce the MSA on two grounds: 1. Robert, Steve, and Jane breached the MSA, entitling Judy to specific performance. 2. There is no evidence to support Robert's affirmative defenses. Robert, Steve, and Jane opposed Judy's effort to obtain summary judgment. The trial court denied Robert a summary judgment and granted Judy a summary judgment. It also ordered Robert, Steve, and Jane to each specifically perform the terms of the [MSA] by executing the deed or deeds called for by such agreement to [Judy] conveying all of the Defendants' right, title, and interest to [the Lot] contemporaneously with the tender to Defendants of a written, signed document or documents by which she release any claims she has against [Robert] and the Estate of [the Decedent] and assumes the tax liability agreed upon in such agreement. The trial court further provided, "Trial is set on the claim of [Judy] for attorney's fees on the ___ day of, 2002." The trial court failed to set any date for such trial. Robert appealed the order to the Twelfth Court of Appeals in Tyler, but that court dismissed the appeal, holding that the order was not a final probate order subject to appeal.[8] A jury trial was held, and as a result the trial court awarded attorney's fees to Judy against Robert and Steve. Each party then submitted a proposed judgment and objected to the other's proposal. Ultimately, the trial court, again, adopting Jane's proposed judgment, signed its "Final Judgment Regarding Mediated Settlement Agreement." The judgment repeats many of the same conclusions contained in the earlier order and, of course, adds the jury's verdict regarding attorney's fees. It also addresses matters not covered by the MSA or by the parties' motions for summary judgment. (B) DECISION AND LEGAL ANALYSIS We review summary judgments de novo. TEX.R. CIV. P. 166a(c); Rolling Lands 199 Invs., L.C. v. Northwest Airport Mgmt., L.P., 111 S.W.3d 187, 193 (Tex.App.-Texarkana 2003, pet. denied). The movant has the burden of showing that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. Id. Every reasonable inference must be indulged in favor of the nonmovant. Id. When both parties file motions for summary judgment and the trial court grants one and denies the other, we review both motions, determine all questions presented, and render the judgment the trial court should have rendered. Id. (1) The MSA Is an Agreement Not To Probate a Will A family settlement agreement is an alternative method of administration in Texas that is a favorite of the law. See Shepherd v. Ledford, 962 S.W.2d 28, 32 (Tex.1998); In re Estate of Hodges, 725 S.W.2d 265, 267 (Tex.App.-Amarillo 1986, writ ref'd n.r.e.). Robert cites In re Estate of Morris, 577 S.W.2d 748, to support his argument that the MSA is unenforceable since it does not meet the requirements of a valid family settlement agreement. In Morris, the decedent's first will devised all of her property to her surviving husband. Id. at 751. This will was admitted to probate. Id. A second will, executed three years later, left only $1.00 to her surviving husband, and the remaining property in her estate to their two children. Id. Soon after the decedent's funeral, the decedent's two children had agreed to destroy the second will because it would upset their father. Id. at 751. Later, the decedent's daughter applied to probate this second will. Id. Addressing this situation in terms of the family settlement doctrine, the Amarillo court held that the two children had agreed to not probate the second will but had failed to agree to an alternate plan of distribution and that, therefore, the agreement was ineffective, as a family settlement agreement, to deny probate of the second will. Id. at 756. The court emphasized that an agreement not to probate a will must be accompanied by an agreement as to the distribution of the property. Id. The court held that the children's knowledge of the 1965 will was insufficient to constitute an agreement between the two of them as to the distribution of the property. Id. The family settlement doctrine involves three basic principles: the decedent's right to make a testamentary disposition,[9] the beneficiaries' right to convey their rights,[10] and balancing those competing 200 rights by requiring an agreement to an alternative distribution plan.[11] Caselaw on the family settlement doctrine supports the conclusion that the family settlement doctrine is applicable generally when there is a disagreement on the distribution of an estate and the beneficiaries enter into an agreement to resolve the controversy. Judy advances at least two arguments why the doctrine does not apply here. First, Judy argues that, since the MSA contemplates that a will eventually will be probated, the family settlement doctrine does not apply here. This position that the family settlement doctrine is only applicable when the parties agree to not probate any will is inconsistent with caselaw. Morris applied the family settlement doctrine on very similar circumstances, when the parties agreed to not probate one will and left another will to be probated. See id. at 756-57. The fact that the parties here intend to probate one of the three wills is not relevant to the applicability of the doctrine.[12] The relevant consideration is whether the MSA will have some impact on the distribution of the estate. Second, Judy argues that the doctrine does not apply because the land to be transferred is, arguably, not estate property. Since it is unclear whether her father owned Lot 2B, Block 1013 by virtue of the 1997 Deed, Judy maintains, this dispute does not involve an agreement not to probate a will and to redistribute estate property.[13] Thus, she contends, this matter falls outside the family settlement doctrine. It is important, however, to look at the nature of the dispute and the attempted resolution itself, rather than the nature of the consideration underlying the agreement or the property being transferred pursuant to the agreement. No matter the ownership of the property constituting consideration, the potential beneficiaries are at odds with one another regarding the distribution of Patricia's estate. Judy was, in effect, exchanging her claims to the estate for the real property. We also point out the intended effect of the MSA. The parties purportedly entered into the MSA to "to settle the above-referenced cause," meaning the pending will contest. That is, the parties are attempting to settle their differences over the distribution of Patricia's estate. And Judy's agreement to dismiss her claims in the will contest and to release any claim 201 against her mother's estate are the equivalent of abandoning her application to probate Will Two and relinquishing any right she might have asserted under Will Two. The MSA certainly invokes the family settlement doctrine. It necessarily involves an agreement, by at least one of the parties, to not probate at least one will, altering the distribution of the estate. In fact, the family settlement doctrine has been applied when there was only "a threat" of a will contest by the beneficiaries under an earlier will if the later will were probated. Fore v. McFadden, 276 S.W. 327, 329 (Tex.Civ.App.-Texarkana 1925, writ dism'd). Here, the controversy had proceeded to a formal judicial proceeding on the will contest issue. So, this situation is the type of situation for which the family settlement doctrine was designed. In order to settle the pending controversy, the family would have had to enter into an agreement that meets the specific requirements and addresses the policy concerns of the family settlement doctrine. Otherwise, the MSA is unenforceable and cannot serve as a substitute for Patricia's testamentary disposition, even though the parties disagree as to her intent. Here, as there was in Morris, there is clearly a controversy over which of Patricia's wills should be probated. By the terms of the MSA, "[e]ach party agree[d] to execute and file an agreed order dismissing all claims in [cause number 30,319, the will contest], with prejudice." This general provision would have the effect of Judy relinquishing her claim that Will Two should be probated, leaving the estate to pass by the terms of Will One or, in the alternative, to pass through intestate succession in accordance with Robert's amended application. It appears that it would also have the effect of Robert withdrawing his application to probate Wills One and Three. Judy separately agreed to relinquish any claim in the estate or against her father in exchange for the land in question. So, this constitutes a specific agreement between at least two of the parties to not probate Will Two.[14] Reading the MSA, we see that there is an agreement not to probate a will. In fact, it could be said that there are several agreements not to probate a will; it is just unclear which will, if any, would be probated ultimately. The uncertainties, however, are more relevant to the second element of the family settlement doctrine that the agreement also provide an alternate plan of distribution of estate property. (2) The MSA Does Not Provide an Alternative Distribution Scheme The law allows for an implied plan of distribution within a family settlement agreement. But courts will not readily imply such a plan for the parties: [I]t must appear that an [implied] agreement for the disposition of the property was so clearly within the contemplation of [the parties] that they deemed it unnecessary to express it and, therefore, omitted to do so. Morris, 577 S.W.2d at 757. The parties can even agree to not probate a will and to allow the estate to pass through the intestacy statutes. See Cook v. Hamer, 158 Tex. 164, 167, 309 S.W.2d 54, 56 (1958); Hopkins v. Hopkins, 708 S.W.2d 31, 32 (Tex.App.-Dallas 1986, writ ref'd n.r.e.). In such situations, the parties, essentially, agreed to let the law redistribute the estate. Here, we must determine whether the putative beneficiaries' agreements in the 202 MSA constitute a sufficiently clear plan to distribute the estate. Since the MSA's provisions could be read to provide for distribution in accordance with the terms of Will One, in accordance with intestate succession, or solely in accordance with agreements contemplated yet nonexistent among the parties, the MSA leaves open a number of possible, but unclear, ways the estate might be distributed if the MSA were enforced. We examine those possibilities. Probate of Will One. Since Judy was the only child with a clearly contrary position at the time of the MSA and since Robert did come to an agreement with her, it could be said that her separate agreement to relinquish her claims against the estate and against Robert would lead to the conclusion that the estate would pass as it would have absent Judy's contest, under the terms of Will One. While this reading of the MSA and interpretation of an alternate plan of distribution would be the most straightforward, it is undermined by the clear references in the MSA that a future agreement was contemplated, yet not ever reached, among Robert, Steve, and Jane. Additionally, Jane's signature limiting her agreement to only the agreement made with Judy appears to reserve her right to enter her own, different, agreement with her father, even if such would conflict with the MSA. All parties agree that no such contemplated agreement was ever reached. We must conclude that the parties, in the MSA, did not agree to distribute Patricia's estate in a manner consistent with Will One. Intestate Succession. If there is no will to be probated, then it could be said that the estate would pass through intestate succession. This method of distribution could be a logical reading of the MSA, since all parties agree to dismiss their claims in the will contest action. But we cannot imply such an agreement to distribute the estate in this manner. Such a plan was "not so clearly within the contemplation of [the parties] that they deemed it unnecessary to express it." Estate of Morris, 577 S.W.2d at 757. In fact, the parties did not contemplate distribution through intestate succession. First, the MSA clearly references other, future, agreements to be made.[15] Also, we note that Jane later filed her own application to probate Will Two. Finally, Judy urged at oral argument before this Court that one of the wills will eventually be probated. Distribution by Future Agreement Only. Perhaps, the most sound reading of the MSA would be that the parties contemplated probating no will, but would instead resolve the dispute by a future agreement. Of course, even if this were the case, all parties now agree that the remaining anticipated agreement was never reached, leaving, in fact, absolutely no plan of distribution. In sum, since the MSA leaves these uncertainties, we conclude that it fails to satisfy the rather stringent requirements of the family settlement doctrine that an agreement provide an alternate plan for distributing estate property. *203 We sustain Robert's first point of error. The MSA is unenforceable as a matter of law.[16] Due to the disposition of that issue, it is unnecessary to address the remaining points of error. Accordingly, we reverse and render judgment that Judy take nothing by her action to enforce the MSA and to be paid her attorney's fees in that action. NOTES [1] The first Will (Will One), dated in 1980, left all of Patricia's property to her husband, Robert. The second Will (Will Two), dated in 1986, left everything to the three children, Steve, Judy, and Jane, leaving nothing to Robert. The third Will (Will Three), dated in 1997, republished Will One, thus leaving everything, once again, to Robert. [2] Later in this opinion, we detail the MSA terms which are relevant to this appeal. [3] Apparently, Robert and Patricia executed "mirror image" deeds, one from Patricia in favor of Robert and the other from Robert in favor of Patricia; contemplating that only one would be recorded. [4] Steve, the oldest child, although present during mediation, was not a formal party in these proceedings. [5] Judy was the only person contesting Robert's application to probate Will One or Will Three at the time the MSA was created. Jane later formally contested the will. [6] This result may be attributable to the fact that the trial court accepted and signed Jane's proposed form of judgment. [7] Judy also recorded a "Notice of Lis Pendens" in the land records in which she stated that the title to all the property conveyed by Patricia to Robert by the 1997 Deed was in dispute. This went beyond the property subject to the MSA. [8] Halbert v. Box, No. 12-02-00342-CV, 2003 WL 21254918, 2003 Tex.App. LEXIS 4641 (Tex.App.-Tyler May 30, 2003, pet. dism'd w.o.j.) (not designated for publication). [9] The Right to Testamentary Disposition. A decedent has the statutory right to dispose of his or her property on death in a manner he or she sees fit. TEX. PROB.CODE ANN. § 57 (Vernon 2003). The courts must protect this right as a matter of public policy: "[N]either courts, juries, relatives nor friends of a testator may say how property should be passed by a will or rewrite a will because they do not like the distribution of the property." Morris, 577 S.W.2d at 755. [10] Beneficiaries' Right to Convey. The second principle underlying the family settlement doctrine recognizes that, on the death of the testator, title of the property in the estate vests in the beneficiaries. Under Section 37 of the Texas Probate Code, when a person dies leaving a will, all of the estate devised or bequeathed by the will immediately vests in the devisees or legatees, subject to payment of the decedent's debts. Shepherd, 962 S.W.2d at 32. The beneficiaries of an estate are free to arrange among themselves for the distribution of the estate and for the payment of expenses from that estate. See TEX. PROB.CODE ANN. § 37 (Vernon 2003); Shepherd, 962 S.W.2d at 32. That being so, the beneficiaries have the right to convey the property after distribution of the estate. Morris, 577 S.W.2d at 755. Pointing out that it makes little sense to limit the right of conveyance before receipt in the regular course of administration of the estate and adding that agreements among the family can end controversies through compromise, the Morris court expressed that family settlement agreements are favored by the law. Id. [11] Balancing Rights by Requiring an Agreement to an Alternative Distribution Plan. To balance the first two principles, the courts impose certain requirements on a family settlement agreement. A valid family settlement agreement must contain both an agreement not to probate a will and an agreed plan of distribution to replace the plan set forth in the will. Id. at 756. Put another way, if the beneficiaries' settlement does not dispose of all the estate's property, then it cannot replace the will and perform the function of transferring title to the decedent's estate. See id. [12] It will, later, become relevant to the inquiry whether the purported settlement provided an alternate plan of distribution. [13] We add that Judy has also maintained the contrary position in her pleadings in her action to cancel the 1997 Deed when she alleged that the 1997 Deed failed to convey the real property to Robert. That would mean that the real property belonged to the estate. While we understand that this may have been a tax reduction technique, we cannot ignore the fact that Judy has tried to maintain two directly contrary positions in these proceedings. [14] Of course, in theory, under the MSA, another child could have applied to probate Will Two. In fact, later in the dispute, Jane did make such application. [15] To the extent that the handwritten provision calling for future agreement among Robert, Jane, and Steve is seen to conflict with the typewritten, boilerplate provision that all parties are relinquishing their claims in the litigation, and thus releasing all claims to probate any will, the handwritten provision controls, calling for the future agreement among the parties. See J.K. Hughes Oil Co. v. Mayflower Inv. Co., 193 S.W.2d 971, 973 (Tex.Civ.App.-Texarkana 1946, writ ref'd); Martin v. Southern Engine & Pump Co., 130 S.W.2d 1065, 1066 (Tex.Civ.App.-Galveston 1939, no writ); Producers' Oil Co. v. Snyder, 190 S.W. 514, 516 (Tex.Civ.App.-Fort Worth 1916, no writ). [16] We do not consider or pass on the merits of the pending will contest. Rather, our holding simply means that the disputes were not settled through this MSA, since it fails as a family settlement agreement.	{ "pile_set_name": "FreeLaw" }
937 P.2d 597 (1997) 132 Wash.2d 193 Pamela S. PALMER and Delbart Palmer, wife and husband; and Pamela S. Palmer, as Guardian ad Litem for Shawn Matthew Palmer, a minor, Petitioners, v. Thomas JENSEN and Jane Doe Jensen, husband and wife; and Titus-Will Ford Sales, Inc., a Washington corporation, Respondents. No. 64058-1. Supreme Court of Washington, En Banc. Argued March 25, 1997. Decided May 29, 1997. 598 Albertson Law Offices, Dan M. Albertson, Tacoma, for Petitioners. John Q. Powers, Seattle, Lee, Smart, Cook, Martin & Patterson, Molly E. Farr, Seattle, for Respondents. Reed McClure, Michael S. Rogers, Seattle, amicus curiae on Behalf of Washington Defense Trial Lawyers. Harbaugh & Bloom, Gary N. Bloom, Bryan P. Harnetiaux, Debra Stephens, Spokane, amicus curiae on Behalf of Washington State Trial Lawyers Ass'n. DOLLIVER, Justice. In this personal injury action, Pamela Palmer asks us to reverse the trial court's denial of her motion for a new trial. Palmer argues the jury's verdict in an amount exactly equal to special damages is inadequate as a matter of law because the award necessarily failed to include damages for pain and suffering. On January 30, 1990, Palmer was driving her Volkswagen Rabbit in Tacoma when the car was rear-ended by a Ford Aerostar mini-van driven by Thomas Jensen. Palmer's son Shawn, then aged three and one-half, was riding in the backseat restrained in his car seat. Palmer filed this action for personal injuries alleging general and special damages. A jury found Jensen to be negligent, but concluded Palmer was 25 percent contributorily negligent. The jury awarded Palmer and her son damages in amounts exactly equal to their special damages $8,414.89 and $34.00 respectively. The awards were then reduced to account for Palmer's contributory negligence. Palmer took Shawn to the doctor on the day of the accident. Shawn's pediatrician diagnosed "Seat Belt Contusion" and did not prescribe further medical care. Ex. 8. Palmer was examined by Dr. Lowell Finkleman the day after the accident. Dr. Finkleman diagnosed "ACUTE CERVICAL LUMBAR STRAIN OF MILD DEGREE" and prescribed physical therapy, pain medication, x-rays, and follow-up care. Clerk's Papers at 143. Palmer saw Dr. Finkleman and a physical therapist regularly until she and her family moved to Boise, Idaho, over a year later. She was treated by a doctor and physical therapist in Boise, each of whom believed her continued lower back problems were a likely result of the accident. The total cost of Palmer's medical treatment was $8,414.89the exact amount of the jury's verdict. Dr. Finkleman testified at trial that all of the special damages claimed by Palmer were reasonable and necessary. Both Dr. Finkleman and Palmer's physical therapist, Roger Russell, told the jury Palmer was experiencing pain from the accident while they were treating her. Medical records from Palmer's doctor and physical therapist in Boise state she continued to experience pain in her lower back over two years after the accident. The defendant presented no evidence to refute these medical opinions. Instead, counsel for the defendant contended in closing argument that the evidence presented by the plaintiffs failed to prove Palmer was injured and, alternatively, that only a portion of the two and one-half year treatment was justified. The defense called only one witnessthe defendant Thomas Jensen. The defense retained an expert, Dr. Daniel Brzusek, but did not call Dr. Brzusek to testify because his testimony was not helpful to the defendant's case. The plaintiffs had wanted to call Dr. Brzusek to testify, but the court granted a defense motion to prohibit reference to the doctor. After the jury returned its verdict, Palmer moved for a new trial, arguing the verdict was insufficient because it failed to include 599 general damages. The trial court denied the motion and Palmer appealed. The Court of Appeals affirmed the trial court, reasoning it is not an abuse of discretion for a trial judge to deny a new trial on the basis that the jury awarded only special damages. Palmer v. Jensen, 81 Wash.App. 148, 151-52, 913 P.2d 413 (1996). I After the jury returned its verdict, Palmer moved for an additur or alternatively a new trial pursuant to CR 59(a)(5), (7), (8), and (9). CR 59 allows the trial court to grant a new trial for the following causes: (5) Damages so excessive or inadequate as unmistakably to indicate that the verdict must have been the result of passion or prejudice; . . . . (7) That there is no evidence or reasonable inference from the evidence to justify the verdict or the decision, or that it is contrary to law; (8) Error in law occurring at the trial...; (9) That substantial justice has not been done. Only CR 59(a)(5) and (7) are at issue here. Determination of the amount of damages is within the province of the jury, and courts are reluctant to interfere with a jury's damage award when fairly made. Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 329, 858 P.2d 1054 (1993). Denial of a new trial on grounds of inadequate damages will be reversed only where the trial court abuses its discretion. Wooldridge v. Woolett, 96 Wash.2d 659, 668, 638 P.2d 566 (1981). A much stronger showing of abuse of discretion will be required to set aside an order granting a new trial than an order denying one because the denial of a new trial "concludes [the parties'] rights." Baxter v. Greyhound Corp., 65 Wash.2d 421, 437, 397 P.2d 857 (1964). Where the proponent of a new trial argues the verdict was not based upon the evidence, appellate courts will look to the record to determine whether there was sufficient evidence to support the verdict. McUne v. Fuqua, 45 Wash.2d 650, 652, 277 P.2d 324 (1954); Ide v. Stoltenow, 47 Wash.2d 847, 848, 289 P.2d 1007 (1955); Philip A. Trautman, Motions Testing the Sufficiency of Evidence, 42 Wash. L.Rev. 787, 811 (1967). Where sufficient evidence exists to support the verdict, it is an abuse of discretion to grant a new trial. McUne, 45 Wash.2d at 653, 277 P.2d 324; Ide, 47 Wash.2d at 848, 289 P.2d 1007; Trautman, supra at 811. Conversely, it is an abuse of discretion to deny a motion for a new trial where the verdict is contrary to the evidence. Krivanek v. Fibreboard Corp., 72 Wash.App. 632, 637, 865 P.2d 527 (1993) (trial court abused its discretion when it denied a new trial on the basis of inadequate damages in wrongful death case because damages were not within the range of substantial evidence); see also Lanegan v. Crauford, 49 Wash.2d 562, 568, 304 P.2d 953 (1956) (new trial ordered on the issue of damages where it "seem[ed] reasonably clear ... that only $381" was awarded for general damages because there was "no serious controversy respecting special damage[s]"). The Court of Appeals limited its analysis to whether the verdict was so inadequate as to indicate passion or prejudice under CR 59(a)(5) and neglected to analyze whether there was evidence to support the verdict under CR 59(a)(7). The court neither discussed CR 59(a)(7) nor referred to the evidence adduced at trial. The court accordingly failed to undertake an independent review of the record to determine whether the verdict was contrary to the evidence. II Palmer's claim that the trial court erred in failing to grant a new trial is premised entirely upon her assertion that the jury failed to award general damages. The jury awarded damages exactly equal to the special damages claimed at trial. The Court of Appeals stated, "[a]lthough there is no way this court could know with absolute certainty whether the jury failed to award general damages, such a result can be reasonably 600 inferred from the general verdict when the jury's award is exactly the same as the plaintiff's uncontroverted evidence." Palmer, 81 Wash.App. at 152, 913 P.2d 413. Curiously, the court later stated the award may nonetheless have included general damages because the jury could have inferred that some of Palmer's medical expenses were unnecessary. Palmer, 81 Wash.App. at 153, 913 P.2d 413. The defendant contends Palmer has failed to show "unerringly from the record" that the verdict of the jury represented special damages only (quoting and citing Cox v. Charles Wright Academy, Inc., 70 Wash.2d 173, 177, 422 P.2d 515 (1967)). In Cox, we held the trial court erred in granting an additur after finding the jury had failed to award general damages for pain and suffering for injuries the plaintiff allegedly received in a car accident. Cox, 70 Wash.2d at 174, 422 P.2d 515. Unlike this case, there was substantial evidence in Cox that the plaintiff's injuries were not attributable to the accident. Cox, 70 Wash.2d at 177-78, 422 P.2d 515. The plaintiff had been in four car accidents in four years, which "tend[ed] to obscure or cloud all the evidence of damages." Cox, 70 Wash.2d at 178, 422 P.2d 515. We observed an additur or new trial may lie where the record shows "categorically" that special damages alone were awarded. Cox, 70 Wash.2d at 177, 422 P.2d 515 (citing Shaw v. Browning, 59 Wash.2d 133, 367 P.2d 17 (1961)). Here, the Court of Appeals acknowledged that uncontroverted evidence at trial established that all of Palmer's medical treatment was related to the accident, was necessary, and was reasonable. Palmer, 81 Wash.App. at 150, 913 P.2d 413. The defendant argues Palmer's special damages were still a matter of legitimate dispute because the jury could have concluded some of Palmer's treatment was unnecessary. However, the defense presented no evidence to call the treatment into question. Lacking evidence, counsel for the defense could only urge the jury during closing argument to conclude Palmer had failed to prove her treatment was necessary. Ide v. Stoltenow, 47 Wash.2d 847, 289 P.2d 1007 (1955) is directly on point. In Ide, we held the trial court was justified in granting a new trial where the jury's verdict was $120 more than the lowest computation of special damages. Ide, 47 Wash.2d at 849, 289 P.2d 1007. The defendant in Ide, like the defendant here, argued the jury could have concluded some of the treatment was unnecessary, particularly the treatment received over one year after the accident. Ide, 47 Wash.2d at 849, 289 P.2d 1007. In response to this argument, we stated: The difficulty with that argument is that, carried to its logical conclusion, there never could be an inadequate verdict, because the conclusive answer would always be that the jury did not have to believe the witnesses who testified as to damages, even though there was no contradiction or dispute. Ide, 47 Wash.2d at 851, 289 P.2d 1007. Likewise, in Hills v. King, 66 Wash.2d 738, 404 P.2d 997 (1965), the defendant presented no medical testimony challenging the necessity or reasonableness of the plaintiff's treatment for injuries to her back and neck caused by a minor car accident. The defendant instead argued the plaintiff was not seriously injured and, "except for her imagination," there was little need for most of the special damages. Hills, 66 Wash.2d at 739, 404 P.2d 997. We held the jury's award of $200 less than special damages did not allow for pain and suffering because there was no legitimate controversy over the amount of special damages. Hills, 66 Wash.2d at 741, 404 P.2d 997. We have held in numerous other cases that the court can assume the jury failed to award damages for pain and suffering where the verdict is equal to or less than uncontroverted special damages. In Shaw v. Browning, 59 Wash.2d 133, 367 P.2d 17 (1961), we found it "very clear that the jury did not intend to compensate" plaintiff for pain and suffering where the verdict was in the exact amount of special damages. Shaw, 59 Wash.2d at 135, 367 P.2d 17. In Daigle v. Rudebeck, 154 Wash. 536, 538-39, 282 P. 827 (1929), we similarly found the jury allowed nothing for general damages where the verdict was almost the exact amount of uncontroverted 601 special damages. See also Lanegan v. Crauford, 49 Wash.2d 562, 568, 304 P.2d 953 (1956) ("[i]t seems reasonably clear" that only $381 was awarded for general damages where items of special damage "seem to be beyond the field of legitimate controversy."); Swanson v. Sewall, 183 Wash. 462, 466, 48 P.2d 939 (1935) (verdict for amount less than special damages in auto accident case "grossly inadequate"). Given that there was no legitimate controversy regarding special damages and that the jury's verdict exactly equaled the plaintiffs' special damages, we hold the jury's verdict included no compensation for pain and suffering. III Palmer argues the case law "mandates" that an injured plaintiff be awarded general damages. Although there is no per se rule that general damages must be awarded to every plaintiff who sustains an injury, a plaintiff who substantiates her pain and suffering with evidence is entitled to general damages. The adequacy of a verdict, therefore, turns on the evidence. See Hills v. King, 66 Wash.2d 738, 404 P.2d 997 (1965) (no abuse of discretion to grant new trial where jury awarded nothing for pain and suffering but plaintiff experienced pain for at least 17 months after the accident); Shaw v. Browning, 59 Wash.2d 133, 367 P.2d 17 (1961) (where "indisputable" that plaintiff sustained pain and suffering and jury failed to award general damages, new trial upheld); Ide v. Stoltenow, 47 Wash.2d 847, 850, 289 P.2d 1007 (1955) (no abuse of discretion to grant new trial where verdict of less than $500 for general damages was "so inadequate as to shock the conscience of the court"); Cleva v. Jackson, 74 Wash.2d 462, 465, 445 P.2d 322 (1968) (new trial upheld where trial court found nominal amount for pain and suffering "clearly was unjustified under the evidence introduced at the time of trial"). We therefore review the record to determine if the omission of general damages was contrary to the evidence. With regard to Shawn Palmer, we find the record would support a verdict omitting general damages. Shawn's pediatrician noted the child was experiencing pain in the back of the head on the day of the accident, but did not prescribe further medical care. The total cost of Shawn's medical care was $34 for this office visit. Given that Shawn's injuries were minimal, and that he required virtually no medical care, the jury could reasonably have concluded he was not entitled to damages for pain and suffering. Turning to Pamela Palmer, Dr. Finkleman noted the day after the accident that Palmer was experiencing neck pain, low back pain, headaches, and sleep difficulties. Follow-up visits with Dr. Finkleman revealed cervical and lumbar pain, but with gradual improvement. Dr. Finkleman continued to note periodic pain in February and March of 1991 over one year after the accident. While Palmer was under Dr. Finkleman's care, she underwent 10 months of physical therapy at two different clinics. Roger Russell, her first physical therapist, testified at trial that Palmer was "very tender" in the neck and back. Report of Proceedings at 102. In his chart notes, he stated Palmer was "very uncomfortable" in the neck and back, and that she had "great difficulty" sleeping. Ex. 2. Another physical therapist, William L. Kelly, noted Palmer complained of "constant low back pain that varies in intensity from dull to sharp." Ex. 3. When Palmer moved to Boise, Mr. Kelly recommended that she undergo a physical therapy program there. In January 1992, Palmer began treatment with David Hartman, M.D., in Boise for lower back pain. After examining Palmer, Dr. Hartman concluded her pain was "very likely" a result of the accident. Ex. 4. Dr. Hartman predicted Palmer would continue to have chronic pain and prescribed physical therapy and pain medication. Anita Leccese, Palmer's physical therapist in Boise, repeatedly wrote in her chart notes that Palmer was in pain. Upon discharging Palmer after two months because she could no longer afford physical therapy, Ms. Leccese noted Palmer was still experiencing episodes of pain, but found the pain was controllable with active exercises. *602 The medical evidence substantiates Pamela Palmer's claim that she experienced pain and suffering for over two years after the accident. We hold the jury's verdict providing no damages for Palmer's pain and suffering was contrary to the evidence. The trial court therefore abused its discretion when it denied Palmer's motion for a new trial. IV We remand for a new trial on the issue of Pamela Palmer's damages only. DURHAM, C.J., and SMITH, GUY, JOHNSON, MADSEN, ALEXANDER and SANDERS, JJ., concur. TALMADGE, J., not participating.	{ "pile_set_name": "FreeLaw" }
March 28, 2008 Mr. Scott T. Clark Adams & Graham, L.L.P. P.O. Drawer 1429 Harlingen, TX 78551-1429 Ms. Rebecca E. Hamilton Sumner, Schick & Hamilton 3838 Oak Lawn Ave, Suite 400 Dallas, TX 75219 RE: Case Number: 06-0550 Court of Appeals Number: 13-03-00728-CV Trial Court Number: C-093-02-F Style: NEW TEXAS AUTO AUCTION SERVICES, L.P. D/B/A BIG H AUTO AUCTION v. GRACIELA GOMEZ DE HERNANDEZ, ET AL. Dear Counsel: Today the Supreme Court of Texas delivered the enclosed opinion and judgment in the above-referenced cause. Sincerely, [pic] Blake A. Hawthorne, Clerk by Claudia Jenks, Chief Deputy Clerk Enclosures \|cc:\|Ms. Cathy Wilborn \| \| \|Mr. Omar Guerrero \| \| \|Mr. Phillip Dye Jr. \| \| \|Mr. Brendan K. McBride \| \| \|Mr. Michael W. Dunagan \| \| \|Ms. Kathleen Cassidy \| \| \|Goodman \|	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 99-10901 Summary Calendar UNITED STATES OF AMERICA Plaintiff - Appellee v. EDEN MAYA CARMONA Defendant - Appellant --------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:99-CR-31-1-X --------------------- August 3, 2000 Before KING, Chief Judge, and WIENER and DENNIS, Circuit Judges. PER CURIAM:* The Federal Public Defender for Eden Maya Carmona has filed a motion to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Carmona was sent a copy of counsel’s motion and brief, and he has filed a pro se response. Our review of the brief filed by counsel, Carmona’s response, and of the record discloses no nonfrivolous point for appeal. Accordingly, the motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. Carmona’s pro se motion to dismiss the appeal is DENIED as moot. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.	{ "pile_set_name": "FreeLaw" }
[Cite as State v. Martinez, 2020-Ohio-3929.] IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT FULTON COUNTY State of Ohio Court of Appeals No. F-19-010 Appellee Trial Court No. 15CR68 v. Samuel Martinez DECISION AND JUDGMENT Appellant Decided: July 31, 2020 *** Scott A. Haselman, Fulton County Prosecuting Attorney, for appellee. Clayton M. Gerbitz, for appellant. *** OSOWIK, J. {¶ 1} This is an appeal of a September 4, 2019 judgment of the Fulton County Court of Common Pleas, finding appellant guilty, following a jury trial, on two counts of rape, in violation of R.C. 2907.02, felonies of the first degree, and two counts of gross sexual imposition, in violation of R.C. 2907.05, felonies of the third degree. {¶ 2} For sentencing purposes, the trial court merged the two gross sexual imposition convictions into the two rape convictions. Appellant was sentenced to a term of incarceration of 25 years to life on each rape conviction, ordered to be served concurrently, for a total term of incarceration of 25 years to life. {¶ 3} These cases stem from the discovery that appellant had repeatedly engaged in sexual intercourse and an array of other sexual activities over the course of a two-year period with his 11-year-old step-granddaughter. The victim had been regularly entrusted into his care on an overnight basis by her parents due to their night-shift work schedule. Appellant conceded to the crimes and furnished details of the offenses to the investigating officers which were consistent with information provided by the victim. {¶ 4} For the reasons set forth below, this court affirms the judgment of the trial court. {¶ 5} Appellant, Samuel Martinez, sets forth the following two assignments of error: [I] There was insufficient evidence to support appellant’s [g.s.i.] convictions and the specifications of force for the two rape charges. [II] Counsel was ineffective for failing to pursue not guilty by reason of insanity. {¶ 6} The following undisputed facts are relevant to this appeal. The victim’s mother is married to appellant’s son. Appellant has known the victim, his step- granddaughter, since 2007, when the victim was five years of age. 2. {¶ 7} In 2013, the victim’s parents began regularly leaving her in appellant’s care on an overnight basis due to their work schedule. The victim would spend the night with appellant, her step-grandfather, at either his camper or at his home. {¶ 8} Starting soon after this family-based childcare arrangement began, appellant would come into the victim’s room at night, place his hand down her pajama pants, and digitally penetrated the victim. The victim would often feign sleep or illness in an unsuccessful attempt to avoid being subjected to appellant’s actions. {¶ 9} Appellant’s sexual misconduct against the victim quickly escalated. It evolved into acts ranging from appellant performing oral sex upon the victim, following the digital penetration, to appellant instructing the victim where to position herself at the edge of the bed, so that appellant could remove her pants, push her legs apart, and hold her down while vaginally raping the victim. {¶ 10} Appellant committed a wide range of sexual offenses against the victim during the several years when she was often placed into his overnight care. Sexual offenses against the victim occurred each time she was left with appellant. Appellant would sometimes buy the victim presents, or otherwise attempt to placate and manipulate the victim in an effort to continue her silence. {¶ 11} When appellant’s crimes were ultimately disclosed by the victim several years after they had begun, the investigating officers recovered a dildo that appellant had often used upon the victim during the incidents occurring at appellant’s camper. The item was described by the victim in detail during her trial testimony. Appellant’s 3. purchase of the item prior to the offenses was captured on video surveillance footage at an area Head Shed store. Witness testimony from an employee further collaborated the purchase. {¶ 12} During the investigation following the victim’s disclosure of the incidents, appellant conceded to an investigating officer that he had sexually penetrated and acted upon his step-granddaughter on numerous occasions, in numerous ways, over a several year period of time, at both his home and camper. {¶ 13} Appellant recounted the crimes in detail to law enforcement. Appellant’s recitation of the events comported with the other evidence of the crimes, including the information furnished by the victim. {¶ 14} On July 21, 2015, appellant was indicted on two counts of rape, in violation of R.C. 2907.02, felonies of the first degree, with accompanying force specifications, and two counts of gross sexual imposition, in violation of R.C. 2907.05, felonies of the third degree. {¶ 15} Competency evaluations were requested, both by appellant and appellee. Prior to the jury trial, a total of four mental health evaluations were conducted. Appellant was evaluated by the Northwest Ohio Psychiatric Hospital, the Court Diagnostic & Treatment Center, Twin Valley Behavioral Healthcare, and the Kalamazoo Psychiatric Hospital. {¶ 16} A plurality of three of the four evaluations determined appellant to be competent to stand trial or malingering in connection to same. Just one of the four 4. evaluations, the Kalamazoo Psychiatric Hospital, deemed appellant not competent to face trial. {¶ 17} On May 30, 2019, an evidentiary hearing was held, during which all of the evaluations were presented and jointly admitted with the consent of the parties. The trial court considered the reports. It determined, based upon the bulk of the evidence presented, that appellant was competent to stand trial. {¶ 18} On August 29-30, 2019, a two-day jury trial was conducted. Appellant was found guilty on all counts. This appeal ensued. {¶ 19} In the first assignment of error, appellant asserts that there was not sufficient evidence in support of the gross sexual imposition convictions or the force specifications accompanying the rape convictions. Appellant acknowledges the evidentiary sufficiency of the rape convictions. {¶ 20} It is well-established that in reviewing a sufficiency of the evidence claim presented on appeal, the relevant inquiry is whether, in viewing the evidence and all reasonable inferences in the light most favorable to the prosecution, a rational trier of fact could have found the elements of the crime to have been proven. State v. Jenks, 61 Ohio St.3d 257, 574 N.E. 2d 492 (1991), paragraph two of the syllabus. {¶ 21} Appellant’s principal contention in the first assignment of error is that the gross sexual imposition convictions were not supported by sufficient evidence. We are not persuaded. 5. {¶ 22} R.C. 2907.05(A)(4) establishes in pertinent part, “No person shall have sexual contact with another * * * when * * * the other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.” {¶ 23} R.C. 2907.01(B) defines sexual contact, in pertinent part, as, “any touching of an erogenous zone of another.” {¶ 24} R.C. 2907.01(A) defines sexual conduct, in pertinent part, as, “vaginal intercourse between a male and a female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus or other object.” {¶ 25} Appellant’s chief argument in support of the sufficiency challenge to the gross sexual imposition convictions lies in one portion of the victim’s testimony in which the victim testified that appellant’s digital sexual activity with the victim was via digital insertion, versus digital touching or rubbing of the erogenous zone prior to proceeding to digital insertion. {¶ 26} Appellant suggests that inadequate evidence of sexual contact via touching by appellant was presented in support of the gross sexual imposition convictions. The record reflects otherwise. {¶ 27} The record of evidence encompasses ample, unrefuted evidence of appellant committing a wide range of actions against the victim constituting countless 6. instances of sexual contact and sexual conduct. Suggestions to the contrary are without merit. {¶ 28} When testifying regarding the volume of sexual activity appellant committed against her, the victim was asked, “[H]ow many times did he put his finger inside your vagina?” The victim replied, “All the time * * * Like at least once a day.” (Emphasis added). {¶ 29} The victim later described in detail appellant’s habitual pattern when engaging in sexual misconduct against her. She testified, “He would start off in a routine. He would take me into the room in the camper and he would pull my pants off me and start fingering me and then he would, what they call eating you out, and then he would start having sex with me.” {¶ 30} When asked how appellant normally approached the digital sexual activity portion of the sexual offenses against her, the victim testified, “He would either spit on me or use this oil.” Appellant’s position on appeal that the digital offenses against the victim were devoid of touching runs counter to the entirety of the evidence. {¶ 31} The victim also testified in detail regarding appellant rubbing a dildo he had purchased at the Head Shed on the outside of her vagina, prior to inserting it into her vagina. This occurred on multiple occasions. Again, the item was recovered from appellant’s camper during the execution of the search warrant. {¶ 32} The unrefuted evidence establishes that appellant’s sexual crimes against the victim encompassed both sexual conduct and sexual contact. 7. {¶ 33} The victim’s unrefuted, articulate, and detailed trial testimony, consistent with appellant’s own investigatory admissions and additional items of evidence recovered, are sufficient to convince a rational trier of fact of appellant’s commission of gross sexual imposition against the victim. {¶ 34} In addition, appellant suggests that there was not sufficient evidence in support of the use of force specification accompanying the rape convictions. Appellant acknowledges that there is sufficient evidence in support of the rape convictions themselves. {¶ 35} In support of the sufficiency challenge on the use of force issue, appellant cites one portion of the victim’s testimony in which the victim testified that appellant did not threaten or physically restrain the victim when using the dildo, upon and into, the victim. {¶ 36} We find that a more accurate reflection of the forceful nature underlying appellant’s offenses is reflected in later victim testimony during which the victim details appellant’s routine course of conduct against her. {¶ 37} For context, appellant was the 250-pound step-grandfather and assigned overnight caregiver of the 11-year-old victim. During the night, appellant would enter her room, wake her up, position her at the edge of the bed, remove her pajama pants, hold her legs apart, and engage in vaginal intercourse with her. The female victim was 11-12 years of age when these events occurred. 8. {¶ 38} To suggest an absence of force despite the vast disparity in age and size of the parties, the position of authority over the victim by appellant, and the use of force described by the victim, is unreasoned and groundless. {¶ 39} The victim testified, “[Appellant] told me to sit on the bed and then he would pull my legs closer to the edge of the bed and then he would take my pants and underwear off * * * He would hold my legs while having sex with me.” (Emphasis added). {¶ 40} We find that the record of evidence encompasses considerable, convincing evidence in support of the force specification accompanying the rape offenses. {¶ 41} The record reflects, upon examining the evidence in the light most favorable to appellee, that a rational trier of facts could have found the gross sexual imposition offenses and the force specifications of the rape offenses proven beyond a doubt. {¶ 42} Wherefore, we find appellant’s first assignment of error not well-taken. {¶ 43} In appellant’s second assignment of error, appellant alleges that trial counsel was ineffective. We do not concur. {¶ 44} In support of the second assignment of error, appellant specifically asserts that trial counsel was deficient in an outcome determinative way in not presenting a not guilty by reason of insanity defense at trial. We do not concur. {¶ 45} It is well-established that in order to prevail on an ineffective assistance of counsel claim, it must be demonstrated that counsel’s objective performance was 9. deficient in some specified way, and that, but for the demonstrated deficiency, the outcome of the matter would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). {¶ 46} In principal support of this assignment, appellant cites a May 9, 2019 determination by the Kalamazoo Psychiatric Hospital that appellant was not legally competent. {¶ 47} Appellant’s position fails to recognize that the plurality of the assessments of appellant, three of the four, found him to be legally competent or malingering in connection to same. {¶ 48} On February 28, 2018, the Court Diagnostic & Treatment Center concluded that, “[While] I cannot give an opinion regarding his competency to stand trial * * * it appears that he may be malingering and he certainly has a significant impetus to do this.” (Emphasis added). {¶ 49} On July 26, 2018, the competency evaluation of the Northwest Ohio Psychiatric Hospital determined, “Samuel Martinez is capable of understanding the nature and objectives of the legal proceedings against him.” (Emphasis added). {¶ 50} On May 20, 2019, Twin Valley Behavioral Healthcare concluded upon their assessment of appellant, “My review of all of the available records on Mr. Martinez and my own extensive observations and interviews does not indicate the presence of any underlying serious mental health or severe neurocognitive condition that would preclude him from being fit to proceed with his case.” (Emphasis added). 10. {¶ 51} Accordingly, it cannot be demonstrated that the decision to not pursue a not guilty by reason of insanity defense at trial was anything other than a proper, tactical choice based upon counsel’s awareness that three of the four competency reports cut against the merit of the defense and based upon the trial court’s finding at the May 30, 2019 evidentiary hearing that appellant was competent to stand trial. {¶ 52} As such, appellant has not, and cannot, demonstrate that, but for the pursuit of a defense unsupported by the bulk of the evidence, the outcome of the matter would have been different. {¶ 53} Wherefore, we find appellant’s second assignment of error not well-taken. {¶ 54} On consideration whereof, the judgment of the Fulton County Court of Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App. R. 24. Judgment affirmed. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4. Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Christine E. Mayle, J. JUDGE CONCUR. _______________________________ JUDGE This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/. 11.	{ "pile_set_name": "FreeLaw" }
147 F.Supp. 902 (1957) UNITED STATES of America, Plaintiff, v. Milton Alfred GILMORE, a/k/a Dr. Milton Alfred Gilmore, Sara B. Gilmore, individually and as Transferee, Sara Belle Gilmore, Marjorie A. Gilmore, Metropolitan Life Insurance Company, a corporation, and Guardian Life Insurance Company of America, a corporation, Defendants. Civ. A. No. 702-W. United States District Court N. D. West Virginia, Wheeling Division. January 14, 1957. Albert M. Morgan, U. S. Atty., Fairmont, W. Va., for plaintiff. Howard Caplan, Stotler, McReynolds & Caplan, Clarksburg, W. Va., for defendant insurance companies. BOREMAN, District Judge. This is a civil action in which the plaintiff seeks to enforce its tax liens 903 against two parcels of real estate described in the complaint and against the cash surrender value of two insurance policies on the life of defendant, Milton Alfred Gilmore, in partial satisfaction of due and unpaid income taxes and payroll withholding taxes owed by said Gilmore. On January 12, 1934, defendant, Metropolitan Life Insurance Company, issued its policy No. 8,855,732-A upon the life of defendant, Milton Alfred Gilmore, on the one-year renewable term plan, in the amount of $10,228. This plan was changed in September 1934 to the Whole Life Plan. The policy lapsed for the non-payment of the annual premium due January 12, 1954, but has been continued, in accordance with its terms, as non-participating paid-up term insurance expiring December 12, 1958. The policy is in the possession of the insured and had, at the time of the institution of this action, and still has, a cash surrender value, upon application of the insured for the payment of such value and upon surrender of the policy to the insurer. On January 13, 1942, defendant, Guardian Life Insurance Company of America, issued its policy No. 768,885, in the face amount of $5,000, upon the life of defendant, Dr. Milton Alfred Gilmore. The policy lapsed for the nonpayment of the premiums due on January 13, 1954, and has since been continued, in accordance with its terms, as non-participating paid-up extended term insurance to expire on December 16, 1970. This policy is in the possession of the insured and had, at the time of the institution of this action, and still has, a cash surrender value, upon application of the insured for the payment of such value and upon surrender of the policy to the insurer. In each of these insurance policies, insured's wife, Sara B. Gilmore, was named as beneficiary, and insured's daughter, Marjorie A. Gilmore, was named as a contingent beneficiary. The right was reserved in each policy to the insured to revoke these beneficiary designations. Each defendant, Metropolitan Life Insurance Company and the Guardian Life Insurance Company of America, is a corporation incorporated under the laws of the State of New York, with its principal place of business in New York City. At the time of the institution of this action, each was, and still is, authorized, under the laws of the State of West Virginia, to issue policies of life insurance in the State of West Virginia. The defendant, Milton Alfred Gilmore, his wife, Sara B. Gilmore, and his daughter, Marjorie A. Gilmore, formerly resided in Parkersburg, West Virginia. They now reside in London, Ontario, Dominion of Canada. Defendant, Milton Alfred Gilmore, is a fugitive from justice, he having been convicted by a jury in the United States District Court for the Northern District of West Virginia at Fairmont on January 16, 1953, 113 F. Supp. 510, on three counts of an indictment charging him with wilfully and knowingly attempting to evade income taxes for certain calendar years, and having fled beyond the jurisdiction of this court and the jurisdiction of the United States prior to the imposition of sentence upon the verdict of guilty and while a motion for a new trial was pending. Subsequently, the defendant's motion for a new trial was dismissed upon the failure of said Milton Alfred Gilmore to appear as ordered on September 2, 1953, and he has since failed to appear before this Court at Fairmont on any subsequent date to be sentenced on the aforesaid verdict of guilty. Personal service of process issued in this action and personal service of the complaint filed herein have not been obtained as to any of said individual defendants. An order of publication, however, as to all of said individual defendants, the Gilmores, has been duly executed but they have failed to appear herein and have filed no answer or other responsive pleading to the complaint. The plaintiff alleges in its complaint that income taxes for the years 1942 through 1948 are due the United States 904 from the defendant, Milton Alfred Gilmore, and unpaid; that payroll withholding taxes are likewise due from said defendant taxpayer and unpaid; that all lawful procedural actions were taken to perfect plaintiff's liens on all property and rights to property belonging to the defendant, Milton Alfred Gilmore, in Wood County, West Virginia, and in New York; that the defendant, Milton Alfred Gilmore, transferred to his wife, the defendant, Sara B. Gilmore, large amounts of cash, totaling approximately $135,000, from which the defendant, Sara B. Gilmore, purchased property in London, Ontario, Dominion of Canada; that said transfers occurred between November 1949 and August 1950, and that Sara B. Gilmore had no income other than that given to her by her husband; that all lawful procedural actions were taken to perfect plaintiff's liens on property and rights to property of the defendant, Sara B. Gilmore, as such transferee, in Wood County, West Virginia, and in New York; that these liens aggregated more than $50,000; that the Collector of Internal Revenue for the District of West Virginia issued proper notices and demands for payment of the unpaid taxes upon the defendant, Milton Alfred Gilmore, and upon the defendant, Sara B. Gilmore, as transferee, but each defendant has failed and refused to render payment; that notices of federal tax liens filed with the Register of the City of New York were served upon both defendant insurance companies, asserting a lien in favor of the plaintiff upon all right, title and interest of the defendant, Milton Alfred Gilmore, in the two policies of insurance hereinbefore described. These allegations of the complaint are not denied by either of these defendants, Milton Alfred Gilmore or Sara B. Gilmore. For the purposes of this decision, it is unnecessary to recite in detail the actions taken by the plaintiff to perfect the various tax liens. After being served with process, each defendant insurance company filed its answer herein challenging the right of the plaintiff to reach the cash surrender value of the insurance policies hereinbefore described and asserting reasons as follows: (A) The surrender of each life insurance policy is a condition precedent to the payment of the cash surrender value; (B) the insured himself has no "property or rights to property" in the cash surrender value of his policy, and there is no amount owing from insurer to the insured, according to the terms of the policy itself, in the absence of a demand by insured for such surrender value and the actual surrender of the policy; and (C) in the absence of personal service of process on the individual defendants, this Court has no power to order insured to demand the cash surrender values, to produce the policies, to surrender each policy to the issuer thereof, or to assign the policies so as to transfer any possible interest therein to the plaintiff. The two defendant insurance companies and the plaintiff executed and filed herein a written stipulation as to certain agreed facts, with exhibits attached, which disclosed the terms of the insurance policies. It appears from the stipulation that neither of said defendant companies has received any application or request from the insured, Milton Alfred Gilmore, for the payment of cash surrender value, accompanied by the surrender of the policy. The terms and provisions of each policy require such application or request from the insured and surrender of the policy itself before the creation of any liability on the part of the insurer to pay the cash surrender value, or before requiring the insurer to do anything, after the lapse for nonpayment of premium due, other than to continue the policy in force for a certain term as non-participating paid-up term insurance. The principal question for decision is whether or not the plaintiff may reach the cash surrender value of the policies in question, under the circumstances here presented. It is my opinion that it may not do so. Plaintiff cites several cases to support the proposition that a tax lien of the United States attaches to all of the taxpayer's 905 property, including the cash surrender value of an insurance policy. Under certain limiting circumstances this is true. Here, neither the insured, taxpayer, nor the policies are within the personal jurisdiction of the Court and, consequently, the Court may proceed only in rem. Thus, it is obvious that the Court could not, as in the decisions cited by the plaintiff, enter an in personam order directing the insured to demand the cash surrender value or to surrender the policies for cancellation. The cited cases indicate only that where the insured is within the personal jurisdiction of the Court, or where he has already presented the policy for cancellation, the government's tax lien does attach to the cash surrender value thereof. But can it so attach where neither of these two circumstances is present? The answer to that question turns on two other questions. (1) Is the surrender of the policy for cancellation a condition precedent to the insured's right to receive the cash surrender value thereof, or, conversely, a condition precedent to the insurer's obligation to pay it? (2) If so, may the Court, nevertheless, enter a binding in rem order or decree declaring that the policies be deemed thereby surrendered and canceled, and order the insurance companies to pay over the cash surrender value thereof to the United States? Consider now question (1). The cases are quite clear that compliance with the policy provision requiring the surrender of the policy to the insurer is a condition precedent to the right to receive the cash surrender value. Until that is done, the insured has no right thereto and the insurer no obligation in respect thereto. The insured's right is simply a right of election rather than a right, per se, to the cash surrender value. The debt or obligation of the insurer arises only when the policy is surrendered to it. Until that time, the insured himself has no right to the insurer's funds as there is no debt presently owing to the insured, and the insurer does not have any of the insured's "property" or "rights to property" in its possession. Further, the requirement in the policy that it be surrendered is not a mere formal requirement, but affords substantial protection of insurer's interests and absolute assurance that the insuring company may be required to pay only once. On these points see the following: United States v. Metropolitan Life Ins. Co., 2 Cir., 1942, 130 F.2d 149; United States v. Penn Mutual Life Ins. Co., 3 Cir., 1942, 130 F.2d 495, 142 A.L.R. 888; United States v. Massachusetts Mut. Life Ins. Co., 1 Cir., 1942, 127 F.2d 880; Martin v. New York Life Ins. Co., 7 Cir., 1939, 104 F.2d 573, 124 A.L.R. 1163; United States v. Prudential Ins. Co. of America, D.C.E.D.Pa.1944, 54 F.Supp. 664; United States v. Aetna Life Ins. Co. of Hartford, Conn., D.C.D.Conn.1942, 46 F.Supp. 30. The plaintiff has filed a very elaborate brief urging the application, to the facts here presented, of principles announced in certain cited decisions. Suffice it to say that, in the opinion of the Court, many of these decisions are not pertinent to this case. For example, plaintiff attempts to show a similarity between the situation here and cases wherein it was held that neither the presentation nor possession of a depositor's passbook, showing savings account deposits in a bank to his credit, is a condition precedent to the government's right to reach the deposit of the taxpayer. However, those cases are decided on the theory that a debtor-creditor relationship exists between the bank and the depositor entirely independent of the passbook. The passbook is only evidence of that debt which exists, whether or not the book is presented. In such case, the bank would have "property" or "rights to property" belonging to the taxpayer and in its possession which the government might reach under the statute. In this connection, the plaintiff cites particularly United States v. Manufacturers Trust Co., 2 Cir., 1952, 198 F.2d 366, and United States v. Emigrant Industrial Savings Bank, D.C.S.D.N.Y.1954, 122 F. Supp. 547. An examination of these last two mentioned cases reveals that the 906 Emigrant Savings Bank case cited and followed the Manufacturers Trust Co. case and that the decision of the Court in the Manufacturers Trust Co. case, 198 F.2d at page 368, actually destroys the plaintiff's contention of similarity as shown by the following language: "Nor is the argument tenable that the presentation of the pass book is analogous to the condition precedent present in United States v. Metropolitan Life Ins. Co. supra, the performance of which was held necessary to the creation of any rights in property which were subject to distraint. That case involved the right of the government to reach the cash surrender value of a life insurance policy and the basis for decision was that the insurance company did not owe this amount to the insured unless, and until, the insured elected to receive it by relinquishing his other rights under the policy. It was held that the government could not make this election for the insured. But there is no like situation here. The relationship of debtor-creditor exists between the bank and its depositor regardless of the presentation of the pass book. See Myers v. Albany Savings Bank, 270 App.Div. 466, 60 N.Y.S.2d 477, affirmed 296 N.Y. 562, 68 N.E.2d 866." Thus, it is clear that the surrender of the policy is a condition precedent to the payment of the cash surrender value thereof. Consider now question (2). May the Court decree, in rem, that the policies in question be deemed surrendered and canceled? The cases hereinbefore cited hold that it cannot do so. See United States v. Metropolitan Life Ins. Co., supra; United States v. Penn Mutual Life Ins. Co., supra; United States v. Massachusetts Mutual Life Ins. Co., supra; Martin v. New York Life Ins. Co., supra; United States v. Prudential Ins. Co. of America, supra; United States v. Aetna Life Ins. Co. of Hartford, Conn., supra; United States v. Manufacturers Trust Co., supra; also 47 C.J.S., Internal Revenue, § 790. These cases hold, in effect, that the right of election whether or not to receive the cash surrender value is a right which is personal to the insured alone, and neither the insurer nor the government can make that election for him. True, if the Court has personal jurisdiction over the insured, it can order him to so elect but the act of electing must be done by him alone. Where, as here, he is not subject to the jurisdiction of the Court, the election cannot be made if the insured does not so desire. Plaintiff contends that those cases are not applicable here in that some of them were for the recovery of the statutory penalty from the insurance company for failure to pay over the cash surrender value, whereas the present case is not for the penalty. Surely, if those cases are authority for the proposition that an insurance company is not liable for the penalty for refusal to pay over the cash surrender value because it did not represent "property" or "rights to property" in its possession belonging to the insured, then they are also authority for the proposition that the government cannot reach the cash surrender value where the Court does not have personal jurisdiction over the insured. If the defendants were not required to pay it over, then they were not liable for the penalty for refusing to do so. It is the opinion of this Court that the two propositions cannot be divorced from each other. In United States v. Prudential Ins. Co. of America, supra, the Court said there is basically no difference in the two types of cases. In referring to the case of United States v. Penn Mutual Life Ins. Co., supra, the Court said that although the suit was "technically for a penalty, it was, so far as ultimate rights and liabilities are concerned, an action to recover property of the insured in possession of the insurance company". Plaintiff further contends that others of these cases are not applicable because, in them, the insured, taxpayer, was not served with process at all and was not *907 before the Court in any capacity, whereas here, the Court does have jurisdiction in rem. However, in neither case could the Court enter a personal order or decree, and in neither case could the Court enter such an order in rem, the policies themselves being outside of the jurisdiction of the Court. Moreover, in United States v. Metropolitan Life Ins. Co.; United States v. Aetna Life Ins. Co. of Hartford, Conn., and Martin v. New York Life Ins. Co., supra, the insured had absented himself and his policies from the jurisdiction and was served with substituted process, just as in the present case. Clearly, the distinction for which the plaintiff contends is not well founded. Again, in the Martin v. New York Life Ins. Co. case, it was held that a trustee in bankruptcy could not reach the cash surrender value of a policy on the bankrupt's life, where he was not within the personal jurisdiction of the Court and had not surrendered the policy for cancellation, but the other two cases, namely, United States v. Metropolitan Life Ins. Co. and United States v. Aetna Life Ins. Co. of Hartford, Conn., were actions by the United States for the recovery of delinquent taxes, as in the present case. The plaintiff argues that if the United States can not proceed against the cash surrender value of insurance policies owned by a taxpayer in circumstances such as are present here, it would permit a taxpayer to place a large portion of his remaining assets beyond the reach of the government by simply leaving the country. However undesirable it may be, from the government's standpoint, to allow a taxpayer this avenue of escape from his obligations, the Court reaches the conclusion that, under the facts and the present law, this action must be dismissed as to the defendants, Metropolitan Life Insurance Company and Guardian Life Insurance Company of America. Without question, the plaintiff has established its right to enforce its liens upon the real estate located in the City of Parkersburg, County of Wood, and in the Northern District of West Virginia. The Court finds that the defendant taxpayer, Milton Alfred Gilmore, is indebted to the plaintiff in the sum of $50,108.23, plus interest thereon as provided by law; that the defendants, Milton Alfred Gilmore and Sara B. Gilmore, are indebted to the plaintiff in the sum of $1,919.12, with interest thereon as provided by law; and that the defendant, Sara B. Gilmore, is indebted to the plaintiff, on the transferee assessment as described in the plaintiff's complaint, in the sum of $50,426.52, with interest thereon as provided by law. The plaintiff may proceed with the foreclosure of its various liens, and with the sale of the aforementioned real estate in accordance with the law and statutes in such cases made and provided. Ordered accordingly.	{ "pile_set_name": "FreeLaw" }
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 12-222V Filed: November 6, 2014 * * * * * * * * * * * * * * * * UNPUBLISHED VIRGINIA ARLOTTA, * * Special Master Gowen Petitioner, * * Joint Stipulation on Damages; v. * Influenza (“Flu”) Vaccine; * Guillain-Barre Syndrome; SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for petitioner. Lara A. Englund, United States Department of Justice, Washington, DC, for respondent. DECISION ON JOINT STIPULATION1 On April 5, 2012, Virginia Arlotta (“petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2006). Petitioner alleged that, as a result of receiving an influenza (“flu”) vaccine on October 18, 2010, she developed Guillain-Barre Syndrome (“GBS”). Stipulation ¶ 2, 4, filed Nov. 5, 2014. Further, petitioner alleged that she experienced residual effects of her injury for more than six months. Id. at ¶ 4. 1 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by Vaccine Rule 18(b), each party has 14 days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2006) (Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa. 1 On November 5, 2014, the parties filed a stipulation in which they state that a decision should be entered awarding compensation. Respondent denies that the flu vaccination caused petitioner’s GBS or any other injury or her current condition. Id. at ¶ 6. Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A. The undersigned finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein. The parties stipulate that petitioner shall receive the following compensation: A lump sum of $50,000.00, in the form of a check payable to petitioner, Virginia Arlotta. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). Id. at ¶ 8. The undersigned approves the requested amount for petitioner’s compensation. Accordingly, an award should be made consistent with the stipulation. The clerk of the court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3 IT IS SO ORDERED. s/ Thomas L. Gowen Thomas L. Gowen Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review. 2	{ "pile_set_name": "FreeLaw" }
54 F.Supp. 399 (1943) McCORMICK v. MOORE-McCORMACK LINES, Inc. KENNEDY v. SAME. BROADBENT v. SAME. BRIERLY v. A. H. BULL S. S. CO. Civil Actions Nos. 2830, 3041, 3049, 3036. District Court, E. D. Pennsylvania. November 1, 1943. Gerald A. Gleeson, U. S. Dist. Atty., and J. Barton Rettew, Asst. U. S. Dist. Atty., both of Philadelphia, Pa., and Edward L. Smith, Atty., Dept. of Justice, of Washington, D. C., for plaintiffs. Freedman & Goldstein, of Philadelphia, Pa., and Abraham E. Friedman, of Philadelphia, Pa., for defendants. GANEY, District Judge. These cases all involve motions for summary judgments and are disposed of herewith in one opinion, since they involve the same questions of law in each instance and since they were all argued together and discussed together in the briefs submitted. In the McCormick and Kennedy cases, the action is brought by the complainants to recover for personal injuries allegedly sustained by them during the month of June, 1943, while aboard the SS Mormacrey 400 in the course of a voyage to ____ and for war risk insurance benefits. In the Broadbent case above, the action is for personal injuries sustained on ____ aboard the SS Mormacsul, as well as for war risk insurance benefits. The injuries were all sustained while the vessels were subject to enemy aircraft action and resulted, in the McCormick case in a nervous breakdown occasioned by the enemy shelling, and in the Kennedy and Broadbent cases from slipping on greasy and oily substances which were on the deck as a result of the aircraft bombardment. In the three cases, as has been indicated, there is a cause of action for personal injuries sustained, another for maintenance and cure and also for war risk insurance benefits in each. The motions for summary judgments in all of the cases are predicated on the position that the defendant did not own or operate the vessels, at the time of the alleged injuries to the various persons, but that it was merely the vessels' agent; that the plaintiffs' cause of action, if any, is against the United States, which was the owner of the vessels. Further, that a policy of crew war risk insurance was issued by the United States and that any cause of action which any of the plaintiffs may have, for war risk insurance benefits, should be against the United States and not against the defendant. The defendants make these contentions, by reason of the fact that the vessels were under bareboat charter to the Moore-McCormack Lines from February 11, 1942, and that on March 22, 1942, the bareboat charter was cancelled by an agency agreement which was entered into between the United States Government and the Moore-McCormack Lines, which purported to be retroactive with respect to all bareboat charters between it and the United States, to October 19, 1941. It is urged therefore that by reason of the agency agreement of March 22, 1942, the defendants were merely the vessels' agents acting on behalf of the government through the War Shipping Administration under the terms and conditions of the general agency agreement. Further under the bareboat charter arrangement, there was no provision in it, by the United States to indemnify the defendants, while under the general agency agreement there was such a provision and since it was retroactive to October 19, 1941, it is binding upon the plaintiffs, and accordingly any judgment rendered against the defendants, would in effect be a judgment against the United States. With respect to the contention for war risk insurance benefits, the point is made that the plaintiffs can only resort to suit against the United States Government under the policy issued by it and that since the government issued the policy no liability can accrue to the defendants. It seems to me the Kennedy, Broadbent and McCormick cases call for very little discussion, since they are ruled by the case of Brady v. Roosevelt Steamship Company, 317 U.S. 575, 63 S.Ct. 425, 87 L.Ed. 471. Here it was definitely held that an agent of a vessel operating it on behalf of the United States, could be held liable for personal injuries if such injuries were caused or contributed by, any fault or negligence of the agentthat the agent because he is agent, does not cease to be answerable for his acts. Accordingly, if we assume the best phase of the defendants' contention that the general agency agreement of March 22, 1942, was retroactive and binding on these plaintiffs the same situation is presented as was presented in the Brady case, supra, and the mere fact that the government was to indemnify the defendant, and might ultimately be called upon to pay a judgment rendered against them is no reason, as the court stated, to deny the plaintiffs' right to bring suit. The contention of the defendants, that the Brady case, supra, is limited only to instances where under the pleadings it could be established that an agent had notice of a dangerous condition, and was thereafter under a duty, not alone to its principal, but to all persons using the vessel, to remedy the condition before it caused harm, is without merit, as the court deals at length with the liability of a private operator for its torts as agent, and concludes that if the Congress had intended to make any inroads on the rights of claimants in instances such as this, it would have so stated in unambiguous terms. The contention by the defendants in all of the cases with respect to war risk insurance benefits that suit lies on the policy of insurance not against the agent but against the insurer and that statutory provision is made for actions to resolve disputes under such policies is likewise without merit. The duty here stems from the obligation imposed on the operator of the vessel to see that each member of the crew 401 is insured against loss of life and bodily injury in the amount of Five Thousand Dollars ($5,000) on all voyages. The restriction does not impose any specific company with whom the operator of a vessel may place the insurance. In other words, it is possible under the duty imposed for the operator of a vessel to be a self-insurer, to insure in a private company or to insure with the United States. While it may be true that where a policy of insurance as here has actually been placed with the United States, that any or all of these plaintiffs might bring suit against the United States, it does not follow that his remedy is restricted to such suit alone. The primary remedy of the plaintiff is against the employer who is immediately responsible for the insurance and I see no reason why this right should be relinquished merely because he has a similar right against the United States. In the Broadbent case, the defendant asks that if the motion for summary judgment is denied, that the plaintiff be required to state separately which of his injuries he sustained in the fall, and which of the injuries he sustained by reason of defendant's failure to treat the same properly. This request is made allegedly in conformity with Rule 10(b) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which requires that: "* * * Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates a clear presentation of the matters set forth." It is submitted that the matter is here properly pleaded in that separation here would in no wise facilitate the presentation of the cause of action as both elements of negligence involve one and the same cause of action. With respect to the plaintiffs' claims for maintenance and cure, defendants contend that they stem only from the relationship between the owner of the vessel and the seaman and are tortious in nature. The origin of maintenance and cure is contractual in nature and is imposed as a duty annexed to the employment. Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S. Ct. 173, 77 L.Ed. 368. However, no good purpose is here served by attempting to show the historical development of the doctrine of maintenance and cure. It suffices here to say that even under the general agency agreement the operator became owner "pro hac vice", and accordingly became subject to the same liability. In the case of Robert S. Brierly v. A. H. Bull Steamship Company, the cause of action concerns itself solely with the plaintiff's right to recover against the defendant for war risk insurance benefits. What has been said concerning war risk insurance benefits with respect to the other three cases is applicable to it, since there is no distinction between them. The motions for summary judgments in each of the cases, Vincent McCormick v. Moore-McCormack Lines, Inc.; Edward J. Kennedy v. Moore-McCormack Lines, Inc.; William S. Broadbent v. Moore-McCormack Lines, Inc., and Robert S. Brierly v. A. H. Bull Steamship Company, are denied.	{ "pile_set_name": "FreeLaw" }
127 Ill.2d 379 (1989) 537 N.E.2d 751 THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MARGARET JIHAN, Appellee. No. 66570. Supreme Court of Illinois. Opinion filed March 29, 1989. 380 Neil F. Hartigan, Attorney General, of Springfield, and John R. Clemons, State's Attorney, of Murphysboro (Robert Ruiz, Solicitor General, and Terence M. Madsen and Michael J. Singer, Assistant Attorneys General, of Chicago, and Kenneth R. Boyle, Stephen E. Norris and Ellen Eder Irish, of the Office of the State's Attorneys Appellate Prosecutor, of Mt. Vernon, of counsel), for the People. Howard B. Eisenberg, of Carbondale, for appellee. 381 Penney L. Fillmer, of West Chicago, and Linda Irenegreene, for amici curiae Midwives Alliance of North America and Illinois Alliance of Midwives. Judgment affirmed. JUSTICE CLARK delivered the opinion of the court: The question presented by this appeal is whether provisions of the now repealed Illinois Medical Practice Act (the Act) (Ill. Rev. Stat. 1985, ch. 111, par. 4401 et seq.), which prohibited the unlicensed practice of midwifery, were unconstitutionally vague under the due process clauses of the United States and Illinois Constitutions. In 1986, appellee, Margaret Jihan, was convicted of practicing midwifery without a license in violation of the Act (the Act was not repealed until December 31, 1987) for the role she played in assisting Hanizah Hashim in the delivery of her baby. The only witness who testified at the trial was a Carbondale police officer to whom appellee had given a statement describing what had occurred at the birthing. The officer testified that, according to appellee, Hashim had originally planned on delivering her baby at a birthing center. However, when it became apparent that the center would not open in time for the birth, her doctor recommended that she contact appellee to assist her in delivering the baby at home. Hashim and her husband met appellee for the first time six to eight weeks before the birth. The purpose of the meeting "was for education and awareness of child birthing at home." On May 16, 1985, Hashim telephoned appellee and told her that "her bag of waters had broke." Appellee then advised her of various methods of inducing labor including breast stimulation, long walks and hot showers. Appellee saw Hashim that day and again on May 17, when she spent most of the day and night at Hashim's apartment. During these visits, appellee observed the 382 progress of Hashim's labor and monitored the child's heartbeat. Hashim's active labor began on the morning of May 18. At about 7 o'clock on the evening of May 18, Hashim passed a bloody discharge in which meconium was present. Meconium is a fecal material which a fetus can ingest into its lungs, causing blocked airways. Meconium must be removed immediately after childbirth to allow the baby to breathe normally. The presence of the meconium indicated to appellee that a special delivery of the baby would be necessary, one that would require extensive suctioning of the baby to remove the meconium and possibly even resuscitation to revive the baby's breathing. Appellee suggested at this point that Hashim go to the hospital, but Hashim wanted to stay at home. Consequently, appellee continued to monitor Hashim, conducted an internal exam with a sterile glove, determined that Hashim was dilated eight centimeters, and checked the baby's heartbeat every 15 minutes with a stethoscope. At about 10 o'clock that evening, Hashim began to deliver her baby. The baby's head was delivered first, and appellee saw meconium present and so wiped the baby's face and began suctioning the baby's nose with a rubber ball syringe. After the remainder of the baby was delivered, appellee continued suctioning and removing the meconium, began to massage the baby, placed the baby on top of the mother, and clamped and cut the umbilical cord. The baby had failed to breathe after birth. Appellee then instructed an assistant who was also present at the delivery to begin massaging Hashim's abdomen. Appellee also told the assistant to call an ambulance while appellee took the baby into the bathroom of the apartment and turned on the hot water to create steam. When the baby became unresponsive, appellee began administering cardiovascular pulmonary resuscitation, 383 but could not get oxygen into the baby's lungs. Appellee then wrapped the baby in sterile blankets and took it out of the bathroom. Appellee then began massaging Hashim's abdomen because the assistant had failed to do so. When the ambulance arrived, appellee took the baby out to the ambulance crew and gave them a brief history of the birth. Appellee then returned to Hashim and continued massaging her abdomen. Seeing that the placenta had attached itself, thus requiring an emergency procedure, appellee called for another ambulance. While waiting for the ambulance to arrive, appellee assisted Hashim with her breathing and gave her a glass of cold tea with honey. The baby was taken by ambulance to a hospital, where it was pronounced dead on arrival. In her statement to the police officer, appellee described herself as a "labor-coach and patient advocate." She explained that she charges two to five dollars per hour for her attendance at births. She also gave the officer a "Release" that she had Hashim and her husband sign. The release said, in part: "We initiated the relationship with [appellee] and asked her to be present at the birth of our child as a midwife. We are fully aware that she is not a doctor or a nurse, and has no medical or nursing training, and agree that she is not representing that she can or will perform any tasks which require such training. We understand that her experiences are limited to having given birth three times herself and having attended a few other births as a lay midwife or as an assistant to a doctor. We further realize that [appellee] does not have a license as a midwife, and that Illinois does not license midwives. We understand that [appellee] does not hold herself out to the public as a midwife, but is only agreeing to attend our birth because she feels she could be of help to us." 384 Appellee was charged by indictment with involuntary manslaughter and practicing midwifery without a license. (Ill. Rev. Stat. 1985, ch. 38, par. 9-3; Ill. Rev. Stat. 1985, ch. 111, pars. 4460, 4464.) The circuit court dismissed the manslaughter charge but convicted appellee of practicing midwifery without a license. Appellee was sentenced to one year of probation and, as a condition of probation, was ordered to serve six months of "electronic home confinement" from 10 p.m. until noon six days per week. Appellee appealed the conviction to the appellate court, claiming that the statute under which she was convicted was unconstitutionally vague because the term "midwifery" was not defined. The appellate court agreed and reversed the conviction. (165 Ill. App.3d 507.) We granted the State's petition for leave to appeal. (107 Ill.2d R. 315.) We also granted the Midwives Alliance of North America and the Illinois Alliance of Midwives leave to file an amicus curiae brief in support of appellee's position. The Medical Practice Act prohibited any person from the "practice * * [of] midwifery" without a State license to do so. (Ill. Rev. Stat. 1985, ch. 111, par. 4403.) A person who "practice[d] midwifery" without a license was guilty of a Class 4 felony. (Ill. Rev. Stat. 1985, ch. 111, pars. 4460, 4464, 4471.) The terms "practice" and "midwifery" were not defined in the Act. Appellee claims that the undefined term "midwifery" was vague and so contends that we should affirm the appellate court's decision that the statute was unconstitutional. The State, on the other hand, argues that appellee does not have standing to raise a vagueness challenge because appellee's conduct was clearly prohibited by the Act. The State further argues that even if appellee does have standing, the term "midwife" has a 385 common and ordinary meaning that is easily understood by the average person and so the appellate court's finding that the statute was vague was incorrect. The due process clauses of the United States and Illinois Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2) require that the proscriptions of a criminal statute be clearly defined and provide "`sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.'" (People v. Haywood (1987), 118 Ill.2d 263, 269, quoting United States v. Petrillo (1946), 332 U.S. 1, 8, 91 L.Ed. 1877, 1883, 67 S.Ct. 1538, 1542.) Definiteness is necessary so that "the person of ordinary intelligence [has] a reasonable opportunity to know what is prohibited, so that he may act accordingly." (Grayned v. City of Rockford (1972), 408 U.S. 104, 108, 33 L.Ed.2d 222, 227, 92 S.Ct. 2294, 2298-99.) Definite standards are also required "to avoid arbitrary and discriminatory enforcement and application by police officers, judges and juries." Haywood, 118 Ill.2d at 269. Initially, we must address the question of appellee's standing. It is well established that "`[v]agueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.'" (People v. Ryan (1987), 117 Ill.2d 28, 34, quoting United States v. Mazurie (1975), 419 U.S. 544, 550, 42 L.Ed.2d 706, 713, 95 S.Ct. 710, 714.) To prevail in a vagueness challenge to a statute that does not implicate first amendment concerns, a party must demonstrate that the statute was vague as applied to the conduct for which the party is being prosecuted. (People v. Garrison (1980), 82 Ill.2d 444, 454.) That is, the party must show that the statute did not provide clear notice that the party's conduct was prohibited. (Garrison, 82 Ill.2d at 454.) In first amendment cases, on the other hand, a party may argue not only 386 that a statute is vague as applied to himself, but also that the statute is unconstitutional on its face because it might be vague as applied to someone else. (Garrison, 82 Ill.2d at 454.) The right to challenge a statute as being vague on its face where the statute clearly applies to the conduct of the party making the challenge does not exist unless first amendment concerns are involved. (Garrison, 82 Ill.2d at 454.) In the present case, no first amendment issue is involved and so appellee does not have standing to argue that the statute might be vague as applied to someone else. However, appellee clearly has standing to raise the issue of whether the Act's language was vague as it applied to appellee. Thus, the issue before us is whether the Act clearly proscribed the conduct engaged in by appellee in this case. The State first claims that appellee clearly practiced midwifery because appellee, as evidenced by the "Release" she had Hashim sign, with its language that appellee would be present at the birth as a "midwife," understood herself to be a midwife. However, the issue here is not, Did appellee think that her conduct constituted midwifery? Rather the question is, Did the Act clearly specify that appellee's conduct was prohibited? To answer this question, we must first ascertain what conduct occurred and then decide if that conduct was clearly prohibited by the language of the Act. The State lists a series of acts allegedly engaged in by appellee and states that they "certainly" constituted the practice of midwifery. Among the appellee's acts listed by the State were: meeting with Hashim and her husband six to eight weeks prior to the birth to discuss childbirthing at home; having Hashim sign the release; monitoring the baby's heartbeat; conducting an internal exam on Hashim; wiping meconium off of the baby; massaging the baby after delivery; cutting the umbilical cord; massaging Hashim's abdomen; and calling an ambulance. 387 The State then argues that the term "midwife" means "the ordinary act of assisting at childbirth" and so appellee's conduct was clearly prohibited by the Act. We disagree, though, because we find that the meaning of the term "midwifery" is not as clear as the State assumes it to be. The State supports its definition of the term "midwife" by citing four cases from other jurisdictions which define the term "midwife" in the context of their State statutes as being the act of assisting at childbirth. (Bowland v. Municipal Court (1976), 18 Cal.3d 479, 556 P.2d 1081, 134 Cal. Rptr. 630 (en banc); Northrup v. Superior Court (1987), 192 Cal. App.3d 276, 237 Cal. Rptr. 255; Smith v. State ex rel. Medical Licensing Board (Ind. App. 1984), 459 N.E.2d 401; State ex rel. Missouri State Board of Registration for the Healing Arts v. Southworth (Mo. 1986), 704 S.W.2d 219 (en banc).) We decline to apply the definitions of midwifery from these cases, however, because they are distinguishable from the present case. The two California cases interpreted the term's meaning based upon a California statute which, unlike the statute in this case, set out in great detail specifically what conduct did not constitute midwifery. (See Bowland, 18 Cal.3d at 485, 556 P.2d at 1083, 134 Cal. Rptr. at 632; Northrup, 192 Cal. App.3d at 278, 237 Cal. Rptr. at 256.) The Missouri and Indiana cases, unlike this case, involved civil rather than criminal proceedings. (See Smith, 459 N.E.2d at 403; Southworth, 704 S.W.2d at 221.) As the United States Supreme Court stated in Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 498-99, 71 L.Ed.2d 362, 371-72, 102 S.Ct. 1186, 1193, there is a greater tolerance for statutory ambiguity in civil proceedings than in criminal proceedings "because the consequences of imprecision are qualitatively less severe." The Supreme Court's statement in Hoffman 388 Estates is consistent with our own rule of statutory construction that "`[i]f a statute creating or increasing a penalty or punishment be capable of two constructions, undoubtedly that which operates in favor of the accused is to be adopted.'" People ex rel. Gibson v. Cannon (1976), 65 Ill.2d 366, 371, quoting People v. Lund (1943), 382 Ill. 213, 215-16. We find that there is ambiguity in the term "midwifery" and that this ambiguity is demonstrated by the State's argument itself. The indictment in this case read that appellee "committed the offense of practice of midwifery without a license in that she delivered the child of Hanizah Hashim, without being licensed to do so in the State of Illinois." (Emphasis added.) Similarly, the State in its reply brief and during oral argument stated that the act of midwifery is the act of delivering a child. Although the meaning of the term "delivery" may be as vague as that of "midwifery," we find that it connotes the playing of a major role in physically removing or extracting a baby from its mother's womb. The term "assisting at childbirth," however, encompasses a far broader range of activity than the mere physical delivery of the baby, and could include everything from educating the mother weeks before the delivery to caring for the mother and child immediately after birth. It is therefore unclear whether the term "midwifery" has the broad meaning of assisting at childbirth, as the State contends at times, or if it has the more narrow meaning of actually delivering the child at birth. Clearly, appellee assisted at the birth of Hashim's child. However, there has been no showing that appellee delivered Hashim's child. The trial court based its conviction of appellee upon a finding that appellee assisted in the childbirth. The testimony by the police officer in this case, which was the sole evidence concerning what occurred at the childbirth, does not establish that appellee 389 delivered the child. According to the officer's testimony, appellee told her that she monitored the baby's heartbeat, observed Hashim's labor, conducted an internal exam of Hashim and determined that she was dilated eight centimeters. Appellee also told the officer that a third person, an unnamed assistant, was present at the birth. The officer then testified as follows: "Q. And did [appellee] state she was present during the delivery of the child? A. Yes. Q. What did she say happened? A. At delivery the baby's head was delivered first, then she saw meconium present and wiped the baby's face and began suctioning the baby's nose. Subsequently, the remainder of the child was born. She continued suctioning the meconium, began to massage the baby, placed the baby on top of the mother, wiped the meconium off the baby's body and subsequently clamped and cut off the umbilical cord on the baby." This testimony only establishes that appellee monitored, examined and assisted Hashim with her birth and cared for the baby during and after the delivery. It is not clear from the evidence whether appellee actually delivered the child in the sense of physically removing or extracting it from its mother's womb. Because the language of the Act could be read as merely prohibiting persons not licensed as midwives from delivering babies, rather than the State's more broad reading that it prohibits such persons from assisting at birth, and because there is no evidence that appellee delivered Hashim's baby, we conclude that the Act did not clearly prohibit the conduct engaged in by appellee in this case. Accordingly, we find that the Act was unconstitutionally vague as applied to appellee in that it did not provide sufficient notice that appellee's conduct in this case was prohibited. 390 We note in closing that the Act in question here has been repealed by the General Assembly and replaced by the Medical Practice Act of 1987 (Ill. Rev. Stat. 1987, ch. 111, par. 4400-1 et seq.). The new act makes no reference to the practice of midwifery or to midwives, and so our holding here has no effect upon the current statutory scheme which governs the practice of medicine in Illinois. The judgment of the appellate court in reversing appellee's conviction and holding that sections 25 and 29 of the Medical Practice Act (Ill. Rev. Stat. 1985, ch. 111, pars. 4460, 4464) were unconstitutionally vague as applied to appellee is therefore affirmed. Judgment affirmed. WARD and CALVO, JJ., took no part in the consideration or decision of this case.	{ "pile_set_name": "FreeLaw" }
Hon. James E. Taylor, Chairman Senate Finance Committee 51st Legislature Austin, Texas Opinion No. V-818. Re: Authority of Board of Regents of The Univer- sity of Texas to use the "Available Univer- sity Fund" for perma- nent impr9vements for the School of Dentist- ry or the AK.B. Ander- aon Hospital, both lo- cated at Houston. Dear Sir: We refer to your request for an opinion on the following question: "Does the Board of Regents of The Uni- qersity of Texas have the authority to'use 'any portion of the,.available University funds' for the purpose of erecting buildings or other improvements or for the support and maintenance of either the School of Dentist- ry of The University,of Texas or the M, Do Anderson Hospital for Cancer Research of The University of Texas, both of which institu- tions are located in Houston, Harris County, Texas?" As early as 1917, when two statutory schools (West Texas A. & M. College and North Texas Agricultural College) were proposed, the Attorney General was asked for an opinion on the constitutionality of their es- tablishment at places other than Austin or Bryan. The problem involved the question of whether the Legislature had the power to establish institutions of higher learn- ing in anx manner other than as provided in Article VII of the Texas Constitution. In the opinion written by Hon. James E. Taylor, Page 2 (V-818.) Luther Nickels, who later served as a Commissioner to the Texas Supreme Court, it was held that the Legisla- ture was authorized under Section 48 of Article III to establish other colleges and universities and support then out of the general revenue. It also pointed out that such statutory universities would not be consti- tutional branches of The University of Texas within the meaning of Article VII, Texas Constitution. See excerpts of opinion copies in V-31 attached hereto. Again in 1928, the Attorney General was asked to determine whether the School of Mines and Metallurgy .was a branch of The University of Texas within the in- tendment of Article VII, Texas Fonstitution, and if so whether money could be appropriated out of the general fund to be used for the erection of buildings at El Paso. The statutes provided (and still provide) that the School of Mines shall be under the management and con- trol of the Board of Regents of the State University, and the faoultv of said school shall be aooointed bv the Board of Regents of The University of Tex& aha the same is hereby made and constituted a br&h’onhe, State Universit~‘~or instruation in the arts of mining 0 0 0” Art.~ 2433, V.C.S. In the opinion written by D. A. Simmons, then First Assistant Attorney General, and recently President of the Ameriaan Ear Association, it was held that: “In our opinion, the School of Mines and bletallurgy is not a bradbh of The University of Texas, as the term ‘branch9 is used in the Constitution of Texas,. The history of the University as briefly outlined herein, shows very clearly that the power is not given to the Legislature to create branches of the University wherever it might see fit 0 0 0n Itwas further held that the Legislature had full authority to establish a School of Mines and Metal- lurgy at El Pas3 under authority of Article 111,‘Section 48, including ereotion of buildings with general reventie funds. Excerpts from that opinion (Opinion No. 2731 to Hon. Adrian Pool dated April-18, 1928) are ,quotea in v-31. In Mumme v. Marrs, 120 Tex, 383, 40 S.W. 26 31 (1931), Chief Justice Cureton of the Supreme Court wrote Hon. James E. Taylor, Page 3 (V-818.) that Section 5 of Article VII, Texas Constitution, de- fining the Available School Fund, and declaring that it shall be distributed to the several counties according to their scholastic population," was not a limitation which prevented the distribution of an appropriation from the general reventie for school districts in accord- ance with the Rural Aid Aot. In arriving at such con- clusian, Chief Justice Cureton said: The history of educational legislation in,this State shows that the provisions of Ar- tide VII, the educational artiole of the Con- stitutian, have never been regarded as limita- tions by implication on the general power of the Legislature to pass laws upon the subject of education. This article alsoloses a well- considered purpose on the part of those who framed it to bring about the establishment and maintenance of a'comprehensive system of pub- lic education, consisting of a general public free school system and a system of higher edu- cation. Three institutions of higher learninq were expressly provided for.... The Legisla- ture, however, has gone far beyond the crea- tion of the three institutions of higher learn- ing specifically required by the organic law, and has created ten additional institutions of a similar character without direat oonstitu- tional grant, beginning with the Sam Hbuston Normal in Huntsville in 1879 o . o O In found- ing these ten institutions, beginning.more than fifty years ago, the Legislature has necessarily held that the specific grants of power con- tained in the Constitution to erect and main- tain The University of Texas O O s were not limitations on its power to create other schools of similar purpose, and to maintain them by appropriations from the General Reve- nue. This interpretation has never been ques- tioned. and is consistent with authorities from other jurisdictions. e O On (UnderSCOring ourS,'l The three institutions of higher learning ex- pressly provided for and specifically required by con- stitutional law, as referred to in Chief Justioe Cure- tonOs opinion, are the constitutional branches of The University of Texas: the Main University at Austin, the Medical Department at Galveston, and the Agricultural and Mechanical College at Bryan. Hon. James E. Taylor, Page 4 (V-818.) It will be noted that the School of Mines and Metallurgy, a college whioh is designated a "branch" in ' the statutes and which is under the management of The University,of Texas' Board of Regent's, is listed among other statutory colleges designated in Section 17 of Ar- ticle VII of the Texas Constitution. However, neither the Dental College of The University of Texas at Hous- ton created in 1943, nor the School of Public Health and a Preoeptorial Training Center authorized by statute to be established at,Houston (H.B. No. 821, 50th Leg., Acts 1947, effective May 27, 1947; Art. 2603f, V.C.S.) is designated in the provisions of the College Building Amendment. The Md.D. Anderson Hospital for Cancer Rel search was established under Chapter 548, 47th Legisla- .ture, R. S., Acts 1941 (Art, 26039, V.C.S.), ada was plaoed under the management ana control of the Board of Regents of The University of Texas by this Aot. The Dental College of The University of Texas, referred to in your letter as the School of Dentistry: was preated under Chapter 329, 48th Legislature, R.S., Acts 1943 (Art, 2623b-1, V.C.S.). This %nstitution was placed under the mana.gement and control of the,Boara of Regents of The University of Texas by this Act, and by this statute was constituted a branoh of The University of Texas for instruction in dental education. Seotion 1O;Article VII of the Constitution of Texas (1876) provides: *The Legislature shall as soon as prac- ticable establish, organize and provide for the maintenance, support and direction of a University of the first class, to be located by a vote of the people of this State, and styled 'The University of Texas,g for the pro- motion of literature, and the arts and scien- ces, inoludi~g an Agricultural and Mechanical departmen~t," (Emphasis ours.) Section II of the same Article of the Codti- tution created what is known as the "Permanent Universi- ty FunC" in order to enable the Legislature to perform the duties set forth in the faregoing Sectian 10, and the income derived from the investment of which fund was made subject to appropriation by the Legislature to ac- Hon. James E. Taylor, Page 5 (V-818.) complish the purpose declared in the foregoing section. The income derived from the investment of the Permanent University Fund is known and designated as the “Availa- ble University Fund .fl It will. be seen from the foregoing that the Available University Fund was created for a specific pur- pose; and csnsequently it is a special fund within the meaning of Section 7 of Article VIII of the Constitution of Texas which prohibits the Legislature from in any manner diverting any special fund from its purpose. However, it will be noted that the power to locate geographically the University as such., or any of its branches (others than A, & M. College, Section 13 of Artiole VII) was vested in the people of the State by express provisions of the Constitution, as heretofore shown, to be exercised by a vote cast at an election held at a time and in the manner as was authorized by the Legislature. Chapter 75, 17th Legislature, R.S., Acts 1881, established The University of Texas and provided far the location of the Main University and a Medical Department thereof, to be determined by a vote of the people at an eleotian to be held on the first Tuesday of September, 1881. (9 Gammel’s Laws p. 171) This Act expressly pro- vided that the Medical Branch could be located at a dif- ferent place than the Main University, and that its lo- cation should be voted upon separately from the Main Uni- versity. The result of this election was in favor of the establishment of the Medical Department of The Uni- versity of Texas at Galves’ton and the Main University to be located at Austin, these places having received the necessary majority vote as prescribed ,by the stat- ute, Since e vote of the people was necessary to locate the University, the University or any of its can- stitutional branches or departments may not be relocat- ed by legislative enactment; but if there does exist a power to so relocate or change the location of such in- stitution or any of its branches as authorized ta be created by the Constitution in order to use any portion of the Available University Fund for their support and maintenance, it is vested in the people of the State of Texas to be exercised by a vote of such people cast at Ron. James E. Taylor, Page 6 (V-818.) an election regularly and properly called for such purpose o But, as hereinabove determined, the specifio grant of power contained in the Constitution to erect and maintain The University of Texas is no limitation upon the power of the Legislature to create other schools of similar purpose, and to maintain them by appropria- tions from the General Revenue Fund of ~the State of Tex- as and to place the management of such instltutons as the Legislature may deem expedient under the Board of Regents of The University of Texas or some other agency. Mummev. Marrs, supra. And the fact that the Legisla- ture may have created such institutions and located them in Houston and oonstituted them branches of The Univer- sity of Texas would not change their status as statuto- ry branches as distinguished from constitutional branch- es. Such a statutory branch of The University of Texas may be fully supported out of the General Revenue. Con- versely, its is not eligible to partioipate in the Avail- able University Fund, such fund being only legally ex- pendable for the use of the cotistitutional branches. The fact that the pertinent provisions of Sec- tion ll+ of Article VII of the Constitution prohiblts the Legislature from levying any tax or appropriating any money out of the General Revenue Fund of the State for the erection of buildings of The University of Texas fur- ther demonstrates the conclusion expressed that the fram- ers of the Constitution intended that the Available Uni- versity Fund should be and remain a special fund for the purpose of supporting and maintaining The University of Texas as thereby established, and that sald fund should not be dissipated by being expended for any other pur- pose. A. G. Opinions Nos. o-7091, O-551. We have revlewed.the matter and conclude that the former opinion of Hon. D. A. Simmons herein referred to concerning the School of Mines~ of The University of Texas is correct; and we therefore follow that opinion. Accordingly, our answer to the submitted question is in the negative. The Legislature may make appropriations from the General Revenue for erection Of buildings and other permanent improvements at Hon. James E. Taylor., Pate 7 (V-818.) the Dental College of The University of Texas and the M.,D, Anderson~Rospital for Canoer Researoh, both looated in,Houston, Texas. Neither igstitution is a constitutional branch of The University of Texas for which the Per- manent University Fund was .oreated. A. Go O- pinion No. 2731 dated April 18, 1928 to Bon, Adrian Pool. Tex. Const. Art. VII, Sets, 10, I 11, 13, 14, 17,. 18; Tex. Const. Art. VIII, Sec. 7; Tex, Const. Art. III, Sec.~ 48; Art. 2603e,-26031, 2623b-1, 2592 and 265&a, Sec. 5, vd.2.s. ; A. G. Opinion No. V-31. Yours very truly, ATTORNEY GENERALOF TEXAS ,ti7p- CEO:mw Chester E. Ollison Assistant	{ "pile_set_name": "FreeLaw" }
537 U.S. 816 GALLOWAYv.CALIFORNIA. No. 01-1689. Supreme Court of United States. October 7, 2002. 1 CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 2 Sup. Ct. Cal. Certiorari denied.	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT May 18, 2006 Charles R. Fulbruge III Clerk No. 05-40036 Summary Calendar BETTY DOUGIA, Plaintiff-Appellant, versus HOWARD D. GRAVES, Etc.; ET AL, Defendants, DR. ROBERT D. MCTEER, Chancellor of the Texas A&M University System; JIM HULL, individually and as Director of Texas Forest Service; BOBBY YOUNG; GARY BENNETT; RODNEY MONK, Defendants-Appellees. -------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:03-CV-625 -------------------- Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges. PER CURIAM:* Betty Dougia appeals the district court’s grant of summary judgment for the defendants in her suit filed under 42 U.S.C. § 1983. Dougia alleged that her rights were violated under the United States Constitution and the Texas Constitution. Dougia asserted that she entered into a contractual agreement with a * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 05-40036 -2- logger to remove timber from her property. Following the removal, she felt as though she was not properly compensated. Dougia called the Timber Theft hotline of the Texas Forest Service (TFS) and requested an investigation into the matter. The investigation was delayed, and the report that was compiled after the investigation concluded that she had been overpaid by the logger. Dougia alleged that the report was compiled in bad faith. The district court dismissed defendants two defendants without prejudice because they were never served. The court granted the other defendants’ motion for summary judgment, concluding that Dougia failed to show a constitutional violation under the Fifth or Fourteenth Amendment of the United States Constitution or the Takings Clause of the Texas Constitution. The court noted that Dougia did not contend that the defendants interfered with or took her property for public purposes without just compensation. In the alternative, assuming for the sake of argument that Dougia had established a constitutional deprivation, the district court found that the remaining defendants were entitled to qualified immunity. On appeal, Dougia does not challenge the dismissal of her complaint as to the defendants who were not served. Nor does she challenge the finding of qualified immunity as to any defendant with the exception of Rodney Monk. Accordingly, all arguments No. 05-40036 -3- regarding these findings of the district court are waived. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999). Dougia argues that the district court erred in granting summary judgment because there is a genuine issue of material fact regarding Monk’s good faith. Dougia acknowledges that the state government did not take her property; she contends, in a one-sentence argument, that the TFS is responsible for the alleged taking because Monk filed a report that was not compiled in good faith. Monk’s good faith is irrelevant, however; the district court granted summary judgment because Dougia did not prove any constitutional violations under either federal or state law. Dougia does not seriously challenge this finding on appeal and admits that her property was not taken by the state. As such, Dougia has waived any argument that she proved a constitutional violation. See Hughes, 191 F.3d at 613. Alternatively, she has not shown that the district court erred in granting summary judgment on grounds that she had not proved a constitutional violation. The judgment of the district court is AFFIRMED.	{ "pile_set_name": "FreeLaw" }
125 S.W.3d 216 (2003) Joe TAYLOR, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee. No. 2001-SC-0870-MR. Supreme Court of Kentucky. October 23, 2003. Rehearing Denied February 19, 2004. 218 Emily Holt, Department of Public Advocacy, Frankfort, Counsel for Appellant. A.B. Chandler III, Attorney General of Kentucky, Todd D. Ferguson, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, Counsel for Appellee. 217 WINTERSHEIMER, Justice. This appeal is from a judgment, which convicted Taylor of manufacturing methamphetamine, driving on a DUI-suspended license and fleeing and evading police in the first degree. He was sentenced to a total of thirty years in prison. The questions presented are whether the trial judge erred in directing a verdict of guilt on two of the charges; whether the trial judge properly denied the motion to suppress; whether KRS 218A.1432(1)(b) is constitutional; whether Taylor was entitled to a directed verdict on the manufacturing methamphetamine charge, and whether evidence of a co-defendant's guilty plea was prejudicial. At trial, a police officer testified that he saw Taylor disregard a stop sign. He followed Taylor into an apartment complex where Taylor dropped off one of his two passengers. In the meantime, the police officer was relaying information about the car into dispatch. As Taylor pulled out onto the street again, the police officer got behind him and turned on his lights to make a traffic stop. Taylor stopped momentarily, but when the officer began to exit his car, Taylor sped off. After a high-speed chase, at times in the wrong lane of traffic, Taylor came to a screeching stop at a dead end street and fled on foot. The police officer stayed with the car and took the passenger, Jimmerson, into custody. Taylor was captured a few minutes later by other police officers. A search of the car revealed 1,248 Sudafed tablets, 2 cans of starting fluid, 15 lithium batteries, plastic tubing, 2 rolls of paper towels, drain cleaner and a partially smoked marijuana cigarette. The piece of plastic tubing later tested positive for methamphetamine. Taylor testified in his own defense and admitted that he was guilty of the offense of driving on a suspended license and eluding police. He otherwise denied the methamphetamine charge. Upon close of the evidence, the trial judge directed a verdict for the Commonwealth on the two charges Taylor admitted committing. The trial judge informed the jury of that directed verdict and instructed the jury on the remaining drug charge. It should be noted that the indictment did not charge Taylor with the offense of first-degree possession of a controlled substance, KRS 218A.1415, and the trial judge did not instruct the jury on the alternative theory of actually manufacturing methamphetamine under KRS 218A.1432(1)(a). The jury convicted Taylor of manufacturing methamphetamine. Based on the jury's verdict during the penalty phase, Taylor was sentenced to twenty years on the drug charge and five years each on the two other charges, the sentences to run consecutively for a total of thirty years in prison. This appeal followed. I. Directed Verdict Taylor argues that the trial judge erred when he sua sponte directed a verdict of guilty for the Commonwealth on the charges of driving on a DUI-suspended 219 license and fleeing police. We firmly agree. During cross-examination, Taylor admitted that he eluded police and was driving on a suspended license. Following the close of evidence, the trial judge sua sponte directed a verdict for the Commonwealth on the charges of driving on a DUI-suspended license and eluding police. The trial judge reasoned that the defendant admitted the charges and that there was nothing for the jury to consider. It is never proper for a trial court to direct a verdict of guilty where there is a plea of not guilty, despite the fact that the evidence of his guilt may be convincing and wholly uncontradicted. Commonwealth v. Durham, Ky., 57 S.W.3d 829 (2001). See also Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). No principle is more fundamental and the case law on this point is not distinguishable by the fact that the defendant testified in his own defense and admitted his guilt. Consequently, we reverse the conviction for driving on a DUI-suspended license and fleeing police. We reject the claim by Taylor, however, that the act of directing a verdict on one or more of the charges taints those charges that are submitted to the jury. II. Motion to Suppress Taylor contends that the trial judge's ruling on his (Taylor's) motion to suppress evidence as it was the fruit of an illegal stop was clearly erroneous because the trial judge based his ruling on facts not in evidence. We disagree. Similar to his testimony at trial, the police officer testified at the suppression hearing that he observed Taylor disregard a stop sign. He followed Taylor into an apartment complex where Taylor dropped off one of his two passengers. In the meantime, the police officer was relaying information about the car into dispatch. As Taylor pulled out onto the street again, the police officer got behind him and turned on his lights to make a traffic stop. Taylor stopped momentarily, but when the officer began to exit his car, Taylor sped off. After a high-speed chase, at times in the wrong lane of traffic, Taylor came to a screeching stop at a dead end street and fled on foot. The police officer stayed with the car and took the passenger, Jimmerson, into custody. Taylor was captured a few minutes later by other police officers. Taylor and the two passengers in his car all testified that he (Taylor) did not fail to stop at the stop sign. The trial judge overruled the motion to suppress and when defense counsel asked for the grounds of that denial, the trial judge stated the following: I heard the officer's testimony that he didn't, he didn't attempt to arrest him, he didn't turn his lights on, he didn't turn his siren on, he didn't get out of the car, he didn't attempt to apprehend him. When he got behind the driver the second time is when he turned his lights on. The officer based on his check that he wasn't a licensed driver it was certainly in his rights to do that. Once that happened your client according to his testimony took off and eluded him to some degree. Court finds that's grounds for the officer to proceed and stop your client. Motion to suppress is denied. A seizure occurs when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). A seizure does not occur, however, if in response to a show of authority, the subject does not yield. In that event, the seizure occurs only when 220 the police physically subdue the subject. Hodari D, supra. Here, it is undisputed that when the officer turned on his lights, Taylor failed to yield to his authority. Instead, he led police on a high-speed chase, which included driving in the wrong lane of traffic. Taylor's seizure only occurred when the police physically apprehended him following the chase. Thus, the police officer's justification for initially attempting to stop Taylor is immaterial and the trial judge's erroneous finding, i.e., that Taylor was not a licensed driver, is of no importance. We otherwise determine that the trial judge's findings are supported by substantial evidence and are conclusive. RCr 9.78. The trial judge properly overruled the motion to suppress. III. Constitutionality of KRS 218A.1432(1)(b) Taylor claims that the statute which proscribes manufacturing methamphetamine is void for vagueness because it does not alert the average citizen that his activity is illegal and it fails to provide guidelines to prevent arbitrary and discriminatory law enforcement. He also asserts that it violates the prohibition against cruel and unusual punishment. We disagree with both contentions. KRS 218A.1432(1)(b) is not unconstitutionally vague. Kotila v. Commonwealth, Ky., 114 S.W.3d 226 (2003). Nor does it violate the prohibition against cruel and unusual punishment. The length of sentence is a matter of legislative prerogative. See Hampton v. Commonwealth, Ky., 666 S.W.2d 737 (1984). The trial judge correctly held that KRS 218A.1432(1)(b) is constitutional. IV. Sufficiency of the Evidence Taylor argues that the trial judge erred in failing to grant his motions for a directed verdict on the manufacturing methamphetamine charge when the Commonwealth failed to prove that he possessed the items for the manufacture of methamphetamine and had the requisite intent under the statute. We agree that Taylor was entitled to a directed verdict. A police officer testified that the evidence found during the search of the car driven by Taylor consisted of 1,248 Sudafed tablets, 2 cans of starting fluid, 15 lithium batteries, plastic tubing, 2 rolls of paper towels, drain cleaner and a partially smoked marijuana cigarette. The piece of plastic tubing later tested positive for methamphetamine. He conceded, however, that Taylor was missing the essential ingredient of anhydrous ammonia. In Kotila, supra, a majority of this Court held that KRS 218A.1432(1)(b) permitted a conviction only when the defendant possessed all, rather than any, of the chemicals or equipment necessary to manufacture methamphetamine. Here, because Taylor did not possess all of the chemicals or equipment, he was entitled to a directed verdict on this charge. It is unnecessary for us to reach the issue of intent. We reverse Taylor's conviction on this charge. V. Improper Testimony Finally, Taylor argues that he was substantially prejudiced when the prosecutor told the jury that his co-defendant pled guilty to helping him manufacture methamphetamine. He contends that although the trial judge sustained the objection as to form, he overruled the objection as to the substance of the question. We agree that the evidence was improperly introduced, but because we have already reversed the judgment of conviction, we find it unnecessary to further address this issue. *221 Therefore, the judgment of conviction and sentence imposed for manufacturing methamphetamine is vacated; and the judgments of conviction and sentence imposed for driving on a DUI-suspended license and fleeing and evading police in the first degree are reversed and this matter is remanded to the Graves Circuit Court for further proceedings consistent with this opinion. All concur.	{ "pile_set_name": "FreeLaw" }
218 Cal.App.2d 567 (1963) FRANK NIGRO, Plaintiff and Appellant, v. WEST FOODS OF CALIFORNIA, Defendant and Respondent. Civ. No. 20299. California Court of Appeals. First Dist., Div. One. July 24, 1963. Boccardo, Blum, Lull, Niland, Teerlink & Bell, Edward J. Niland, Norman W. Saucedo and William G. Kinder for Plaintiff and Appellant. Bruno & Gassett and Simon J. Katzen for Defendant and Respondent. SULLIVAN, J. Plaintiff appeals from an adverse judgment entered on a jury verdict in an action for damages for personal injuries. On June 3, 1960, plaintiff Frank Nigro, 77 years of age, went to defendant's place of business to buy compost for his garden. He had been there on several previous occasions. This was his second trip on the above date. The compost was spread out over a portion of the defendant's property in order to dry. To purchase compost, customers first went to the main office of the plant, paid for the desired amount, and received a slip or receipt which they took to the drying area where their vehicles were loaded. Such loading was usually done near the compost stockpile at points designated by employees in attendance. There were no signs or warnings restricting the customers to any particular area. On the day of the accident here involved plaintiff followed the above procedure. Having paid for the compost, plaintiff drove his panel truck and trailer to the vicinity of the compost stockpile, parked his vehicle and went up to defendant's employee Hathaway who was discing some of the compost with a Fordson tractor. Hathaway finally stopped his tractor by a bucket loader and 570 walked over to the plaintiff who gave Hathaway his receipt and told the latter that he wanted "old" compost. To get this, Hathaway had to "knock some off the side" of the pile and break it up by discing it. He told plaintiff: "You stay here and leave your truck here and I'll bring it out to you." Hathaway then returned to his tractor. Plaintiff followed him to the front of the compost pile and stood near the mechanical bucket loader. Hathaway did not realize that plaintiff did this until he was starting "up on the hill" of the compost when he looked back and saw plaintiff "standing between the wheels on the bucket loader." Although the entire pile of old compost reached a height of 15 to 16 feet, that portion which Hathaway planned to disc was about 5 feet high. It was his intention to circle this area a few times counterclockwise with the tractor pulling a disc so as to "grind it up a little." Hathaway proceeded up the side of the pile on the tractor, "got just up to where I intended to go, and started to make a turn to the left" when the tractor stalled. He increased the power so as to pick up the disc (operable by a lever) "put my foot on the left brake and gave it some gas" so that he could return to the ground level and make another pass at the compost. As soon as the disc became free, Hathaway drove the tractor off the side of the hill making a left turn as he did so. As Hathaway came down, the plaintiff, who had moved from his position at the loader, suddenly appeared in the path of the tractor. Hathaway immediately "climbed on the other brake," the left brake being already engaged so as to make the left turn. Plaintiff tried to get out of the way but was struck by the righthand edge of the radiator and thrown to the ground. Hathaway testified that at no time did he come near striking the loader where plaintiff had been standing and that the path of the tractor avoided the loader. The tractor was in second gear and was not out of control at any time. Its speed at the time was about 8 to 10 miles per hour. Plaintiff stated that the point of impact was about 8 feet from the bucket loader. Hathaway also testified that he had been operating this particular equipment for about two months. There was some difficulty in steering the tractor because the front was not quite heavy enough to support the weight of the disc in the back. As a result, the weight was on the rear wheels and the smaller front wheels would have a tendency to rise. He was able to control the tractor's direction by the use of independently 571 operated brakes on each of the rear wheels, an application of the left brake effecting a left turn, and the right brake, a right turn. He had previously reported this condition to his superiors two or three times, suggesting that weights be put in front, but nothing had been done to correct the condition. Defendant's employee Henry who occasionally drove the tractor testified to the same effect with respect to the tractor's condition, as did defendant's service manager Hewitt who had charge of the shop and equipment. Hewitt on examination by defendant's counsel testified that there were two means of steering--one by the ordinary steering wheel and gear and the other by the brakes on the rear wheels which effected short turns: "You can steer as easily with one as you can with the other." According to Hewitt, the steering wheel on the tractor was for "mild guiding" or "small steerage." Both Hathaway and Henry had called the condition of the tractor to the attention of defendant's shop and service personnel and had suggested that weights be placed on the front of the tractor. Hewitt acknowledged that Hathaway had told him about the condition but stated that he did not correct it because he "didn't feel that it was in such a condition that it was justified at the time." The complaint alleged, inter alia, that the "defendants ... so negligently owned, maintained and operated their said Fordson wheel tractor that the same collided with the body of the plaintiff." The answer denied all the material allegations of the complaint and alleged contributory negligence on the part of plaintiff. Plaintiff contends before us (1) that the evidence is insufficient to sustain the verdict; and (2) that the court committed prejudicial error in refusing one of plaintiff's instructions. [1, 2] Since the jury rendered a general verdict, it is clear "that such a verdict imports findings in favor of the prevailing party on all material issues [citations]; that if the evidence supports implied findings on any set of issues which will sustain the verdict it will be assumed that the jury so found [citation]; that the court on appeal does not have to speculate on what particular ground the jury may have found in favor of the prevailing party [citation]; ..." (Thomson v. Casaudoumecq (1962) 205 Cal.App.2d 549, 555 [23 Cal.Rptr. 189].) [3] The scope of our review is to determine 572 whether there is any substantial evidence, contradicted or uncontradicted, supportive of the jury's conclusion. (Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429 [45 P.2d 183]; Primm v. Primm (1956) 46 Cal.2d 690, 693 [299 P.2d 231].) [4] Contrary to plaintiff's claim, the evidence was in conflict in respect to Hathaway's operation of the tractor. Although there was evidence of difficulty on steering the tractor when the discs were in a raised position, there was also ample evidence that it could be just as easily steered by application of the brakes, that on the occasion in question it was not out of control, that it was being steered in the intended direction and that it would not have come near the loader where plaintiff had been standing. The record therefore contains substantial evidence from which the jury could have concluded that the tractor was being carefully operated and that the difficulty in steering was of no consequence since the tractor could be properly steered by using the rear brakes. The jury's implied finding of no negligence on the part of defendant is supported by the evidence. [5] Furthermore, the jury could have concluded that, while the defendant was negligent, the plaintiff was guilty of contributory negligence proximately causing the accident. Hathaway, who was engaged in discing operations in the area, first told the plaintiff to stay by his truck. Instead, plaintiff went over to the loader and thus closer to where the tractor and disc were being operated. The jury could have concluded that there was no need for a customer to enter this particular area where equipment was in motion and that a man of ordinary prudence would remain in the parking area to which Hathaway told plaintiff he would bring the compost. But beyond these considerations, the jury could have concluded that plaintiff, having once taken his position by the loader, would not have been injured if he had remained there since there was no danger that the tractor would collide with or come close to the loader. Despite the fact that plaintiff testified that he left his position by the loader only when he saw the tractor "on top of" him and about to "catch ... [him] to the corner and against the ... [loader]," the jury could have concluded that the plaintiff under all the circumstances did not act with due care in leaving the relative safety of the loader. We think that it is apparent that there is sufficient evidence to support the implied finding of plaintiff's contributory negligence. 573 Plaintiff's claims that the defendant was negligent as a matter of law and that the plaintiff was not guilty of contributory negligence as a matter of law are entirely without merit. [6] Generally speaking the questions of negligence, contributory negligence and proximate cause are questions of fact for the jury. (Austin v. Riverside Portland Cement Co. (1955) 44 Cal.2d 225, 234 [282 P.2d 69]; Wahlgren v. Market Street Ry. Co. (1901) 132 Cal. 656, 663 [62 P. 308, 64 P. 993]; Barry v. Bruce (1962) 200 Cal.App.2d 335, 337-338 [19 Cal.Rptr. 518]; Negra v. L. Lion & Sons Co. (1951) 102 Cal.App.2d 453, 458 [227 P.2d 916].) [7] As we have pointed out, the evidence relevant to these issues was in conflict. Therefore, as we need not elaborate, a valid argument simply cannot be made that the only reasonable hypothesis is that the defendant was negligent and the plaintiff free of contributory negligence and that reasonable and sensible men can draw only that conclusion and none other from the evidence presented. (Wahlgren v. Market Street Ry. Co., supra; Williams v. Pacific Gas & Elec. Co. (1960) 181 Cal.App.2d 691, 701-702 [5 Cal.Rptr. 585].) We turn to plaintiff's second contention. It is claimed that the court committed prejudicial error in failing to instruct specifically on the duty of defendant with regard to the maintenance of its tractor. It is not disputed that plaintiff was defendant's invitee. Defendant's duties to him are well established by law. [8] As this court stated in Brown v. San Francisco Ball Club, Inc. (1950) 99 Cal.App.2d 484, 486 [222 P.2d 19]: "The applicable general principle is that the owner of property, insofar as an invitee is concerned, is not an insurer of safety but must use reasonable care to keep his premises in a reasonably safe condition and give warning of latent or concealed perils. [9] He is not liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of reasonable care. [Citations.]" (See also Pauly v. King (1955) 44 Cal.2d 649, 653 [284 P.2d 487]; Haberlin v. Peninsula Celebration Assn. (1957) 156 Cal.App.2d 404, 407-408 [319 P.2d 418]; Louie v. Hagstrom's Food Stores, Inc. (1947) 81 Cal.App.2d 601, 606 [184 P.2d 708]; Prosser, Law of Torts (2d ed. 1955) p. 459.) [10] Such duty is not limited to conditions actually known by the owner to be dangerous, but extends to those which may be found to be so by the exercise of reasonable care. (Blumberg v. M. & T. Inc. (1949) 34 Cal.2d 226, 229 [209 574 P.2d 1]; Mondine v. Sarlin (1938) 11 Cal.2d 593, 597 [81 P.2d 903]; Louie v. Hagstrom's Food Stores, supra; Haberlin v. Peninsula Celebration Assn., supra. [11] The owner's duty to the invitee is adequately discharged either by exercising ordinary care to keep the premises in a reasonably safe condition or by giving a warning adequate to enable the invitee to avoid the danger. (Chance v. Lawry's, Inc. (1962) 58 Cal.2d 368, 373, 380 [24 Cal.Rptr. 209, 374 P.2d 185]; Blumberg v. M. & T., Inc., supra; Haberlin v. Peninsula Celebration Assn., supra.) But the owner is not required to warn the invitee of a danger so obvious that the invitee could be reasonably expected to see it. (Haberlin v. Peninsula Celebration Assn., supra.) However the premises may be unsafe because of an activity thereon rather than a mere defect in their physical condition. A difference must therefore be noted between those situations involving injuries resulting from a defective condition and those involving injuries resulting from the active conduct of the owner or his employees. (See Oettinger v. Stewart (1944) 24 Cal.2d 133, 138 [148 P.2d 19, 156 A.L.R. 1221].) [12] The owner may have discharged his duty to the extent of maintaining a reasonably safe condition of the premises. It is his conduct on such premises which may be dangerous. Under such circumstances, his duty is to use ordinary care to avoid injury to the invitee through his operations. (Oettinger v. Stewart, supra; Tesone v. Reiman (1953) 117 Cal.App.2d 211, 214 [255 P.2d 48].) [fn. 1] In Tesone, supra, objection was made to an instruction, stating the duty owed an invitee in a case where a child visiting her grandparents was injured by an electric mangle, on the ground that the determination of whether she was an invitee or licensee had been removed from the jury. The court, relying upon Oettinger, supra, said: "The exact status is unimportant here for the reason that the negligence, if any, was in the conduct of active operations on the Reiman property with the presence of the respondent known. Under such circumstances it was the duty of the appellants to use ordinary care to avoid injury to respondent 575 through such operations. ... Where the action is based on negligent conduct rather than on the condition of the premises and the standard of care therefore is that of ordinary care to avoid injury it would only confuse the jury to enter into the subject of status." (117 Cal.App.2d at pp. 214-215.) With these principles in mind we turn to the pertinent instructions. After giving extensive instructions defining and explaining negligence, ordinary care, proximate cause and contributory negligence, the court instructed the jury as to the duty of an invitor to an invitee. This last instruction [fn. 2] was given at the request of and in the language as proposed by defendant. It was the only instruction given on the subject of the invitor's duty. After giving such instruction, the court thereupon instructed the jury to determine whether the defendant was guilty of negligence proximately causing plaintiff's injury, and, if so, whether the plaintiff was guilty of contributory negligence proximately causing the injury. The instruction given on the subject of the invitor's duty (see footnote 2, ante) appears to be BAJI No. 213c except for the omission of the following language at the end of the first sentence: "and it also is the invitor's duty to use ordinary care to keep the premises in a condition reasonably safe for the invitee. ..." Plaintiff makes no claim that the court erred in giving such instruction. Nor do we think he could properly do so. The instruction is a correct statement of the law. (See Tesone v. Reiman, supra, 117 Cal.App.2d 211, 214.) [13] However, plaintiff claims error in the refusal of the court to give the following instruction: "It was the duty of the defendant, West Foods of California, a corporation, in the conduct of any active operation on it's [sic] property, to use ordinary care to avoid injury to the plaintiff, Frank 576 Nigro. It was further the duty of the said defendant to use ordinary care in the inspection, maintenance, and repair of the Fordson tractor and disc to the end that it would be reasonably safe when used. This latter duty which I have just defined extends to any person who may be within the area of danger from the use of said Fordson tractor and disc and whose presence there is within a range of probability forseen [sic] by the said defendant corporation, and that would be forseen [sic] by said defendant corporation in the exercise of ordinary care." The gist of plaintiff's complaint is that the instruction which was given related only to the duty to warn of known dangers and did not advise the jury of the defendant's duty to inspect, maintain and repair its tractor. We may summarize in terms of the invitor's duty the applicable legal principles already discussed by us, as follows: (1) as respects the condition of the invitor's premises, a duty to exercise ordinary care to keep the premises in a reasonably safe condition or to warn the invitee of dangers not obvious; and (2) as respects the active conduct of the invitor or his employees, a duty to exercise ordinary care to avoid injury to the invitee. The jury were told of this latter duty by the first sentence of the instruction given which stated that "it is the duty of the invitor, in the conduct of any active operations on the property, to use ordinary care to avoid any injury to the invitee." This was a proper instruction since under the evidence if defendant could be held responsible for plaintiff's injuries at all, it was because such injuries resulted from the active conduct of defendant's employee Hathaway in the operation of the tractor rather than from any defective condition of the premises themselves. The first sentence of plaintiff's refused instruction contained a statement of the above duty in substantially the same language and obviously would have added nothing. However the second sentence of the proposed instruction, which as we apprehend is the heart of the matter, declares a duty on defendant's part "to use ordinary care in the inspection, maintenance, and repair" of the tractor and disc. Beyond that the instruction does not go. It therefore appears that, in the place of a statement in broad terms of a duty to exercise ordinary care to keep the premises in a reasonably safe condition, plaintiff proposes a narrower substitute relating to the condition of the tractor. In our view, the court was under 577 no duty to so advise the jury. As we have already pointed out, under the evidence in the case, plaintiff's injuries did not result from any condition of the premises. Since plaintiff did not go upon or use the tractor or disc, it cannot be said in the same sense that his injuries resulted from the condition of the tractor. It is clear that his injuries resulted from the operation of the tractor. Indeed, under any view of the evidence, there does not appear to have been either a defective tractor or a disc requiring repair. If there was any responsibility on defendant's part, it derived from the use or operation of both of these pieces of equipment conjointly under circumstances causing the front wheels to be lifted up when the disc was raised. The jury was properly instructed that in the course of any active operations, which obviously included Hathaway's discing of the compost, the defendant was bound to use ordinary care to avoid injuring the plaintiff. They were also fully advised as to the meaning of ordinary care, negligence and proximate cause. They were fully and fairly instructed on the general rules of liability for negligence. In substance, they were told that if the defendant negligently operated the tractor, and such negligence proximately caused the plaintiff's injuries, and if the plaintiff was free of contributory negligence proximately causing the injury, they should find for the plaintiff. This was the essence of plaintiff's claim as alleged in his complaint. Under the circumstances no error was committed in refusing plaintiff's instruction. The judgment is affirmed. Bray, P. J., and Molinari, J., concurred. NOTES [fn. 1] 1. In Oettinger v. Stewart, supra, the court in defining the duty owed to a licensee stated that "it is now generally held that in cases involving injury resulting from active conduct, as distinguished from condition of the premises, the landowner or possessor may be liable for failure to exercise ordinary care toward a licensee whose presence on the land is known or should reasonably be known to the owner or possessor. (Rest., Torts, 341; Prosser on Torts (1941) 630; 45 C.J. 803-805.)" (24 Cal.2d at p. 138.) [fn. 2] 2. The instruction is as follows: "Now, toward an invitee it is the duty of the invitor, in the conduct of any active operations on the property, to use ordinary care to avoid any injury to the invitee. But the responsibility of one having control of the premises is not absolute. It is limited to the performance of certain duties defined in my instructions. If there is danger attending upon the entry, or upon the work which the invitee is to do on the premises, and if such danger arises from conditions not readily apparent to his senses, and if the occupant has created such conditions or has actual knowledge of them, or if they are discoverable by it in the exercise of ordinary care, it is it's duty to give reasonable warning of such danger to the invitee. The occupant is not bound to discover defects which reasonable inspection would not disclose, and it is entitled to assume that the invitee will perceive that which would be obvious to him upon the ordinary use of his own senses. In brief, no duty exists to give the invitee notice of an obvious danger."	{ "pile_set_name": "FreeLaw" }
599 F.2d 1053 Zamakshariv.Immigration and Naturalization Service* No. 78-3001 United States Court of Appeals, Fifth Circuit 7/24/79 1 B.I.S. 2 AFFIRMED*** * Local Rule 21 case; see NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966 *** Opinion contains citation(s) or special notations	{ "pile_set_name": "FreeLaw" }
118 Ill. App.3d 584 (1983) 455 N.E.2d 206 THOMAS KENNEDY, Plaintiff-Appellant, v. HOSPITAL SERVICE CORPORATION, Defendant-Appellee. No. 83-238. Illinois Appellate Court First District (4th Division). Opinion filed September 29, 1983. 585 John T. Kennedy, of Highland Park, for appellant. Michael I. Hyman, of Chicago (Peter G. McAllen and Donald J. Duffy, of Kirkland & Ellis, of counsel), for appellee. Judgment affirmed. PRESIDING JUSTICE ROMITI delivered the opinion of the court: Plaintiff-appellant, Thomas Kennedy, appeals from an order of the circuit court of Cook County declaring that defendant-appellee, Health Care Service Corporation (sued as Hospital Service Corporation), had properly denied his claim for payment of hospitalization benefits for that part of a hospital stay exceeding a 120-day limitation contained in the Health Services Plan Certificate (the contract) issued to plaintiff by defendant. On appeal plaintiff contends (1) that there exists an ambiguity in the contract with respect to the existence of any limitation on the duration of hospitalization coverage and that such ambiguity should be resolved in his favor by a determination that no such limitation exists; (2) that in any event any such limitation was waived when defendant paid for a 60-day hospitalization period which had occurred after plaintiff had previously been hospitalized for more than 120 days. We affirm. The evidence at trial established the following: Plaintiff was hospitalized 586 at Rush Presbyterian-St. Luke's Hospital (Rush) in Chicago from April 12, 1981, until June 6, 1981, and again from June 16, 1981, until August 23, 1981. On August 24, 1981, plaintiff was admitted to a Hartford, Connecticut hospital, the Institute of Living, where he remained at the time this action was brought on March 23, 1982. There is no contention that the nature of plaintiff's ailment was not covered under the contract. Emma Luster, a supervisor in defendant's direct account department, testified that the bill for plaintiff's first stay at Rush was received August 5, 1981, and was paid August 26, 1981. Her department would compute the available days of coverage by subtracting the number of days for which payment had previously been made from the available days of coverage provided in the contract. The bill for plaintiff's second stay at Rush was not received until December 9, 1981, and was paid December 23, 1981, to cover hospitalization until August 20, 1981, a period which together with the earlier Rush hospitalization was computed to be 120 days. According to Luster no other billing for hospitalization for defendant had been received by her department at that time. Also testifying at trial was Angelo Fraticola, a supervisor in the defendant's Interplan Bank, which handled billing for members confined to out-of-State hospitals. According to Fraticola when his department was notified by an out-of-State hospital of a patient's admission the computer file would be checked and it would notify them of the number of days of coverage available. His department received notice of plaintiff's Connecticut hospitalization on September 2, 1981, and the next day sent back approval of 60 days' coverage. According to their practice payments were subsequently sent to the Connecticut hospital in October and November of 1981 for the 60 days that had been authorized. Fraticola testified that the computer would contain a history of hospitalization, including dates of admission and discharge. However when further questioned by defendant's attorney he clarified this by saying that although the date of admission would be listed, the date of discharge would only be shown if defendant had made a payment for that period. If no such payment had been made then only an open admission would be contained in the computer entry. He had also testified that his department determined the number of days available to a patient in the same manner as Emma Luster's department (by subtracting days paid from contract days available). However upon further examination by plaintiff's attorney he also testified that "[t]here is something in the computer that they are utilizing the number of days" and that there was a continuing computation of days in 587 the computer. The contract itself provides in article I(A)(1) that as to benefits: "For admissions on and after the Effective Date and during the Benefit Period (see Article VIII(G)), a Beneficiary is entitled to * * (a) INPATIENT HOSPITAL SERVICE * * ." Article VIII(G) states: "`Benefit Period' means the number of days specified in Article VIII(A) for all inpatient service in a Hospital * ." Article VIII(A) states: "`Subscriber' means the individual under 65 years of age who has applied for this Certificate and to whom Blue Cross and Blue Shield have issued an Identification Card bearing the same number as this Certificate." However article IX states in bold capital letters "EXTENT OF BENEFIT AND RATE." and then provides: "(A) Benefit Periods 1. 120 days 2. 120 days (B) Percentage Payment by Blue Cross and Blue Shield 1. Blue Cross 80% 2. Blue Shield 80% * ." When plaintiff sought payment of hospitalization charges for the period in Chicago in excess of 120 days and for the period in Connecticut beyond the initial 60 days defendant refused, contending that the contract provided a 120-day limitation (with certain exceptions not relevant to this dispute) and that it had paid for that period and had erroneously paid for an additional 60-day period. Plaintiff then brought this action for a declaratory judgment. I 1 Plaintiff first contends that the contract provisions we have set out created an ambiguity as to the existence of any limitation on the duration of coverage for hospitalization and that because ambiguities in insurance contracts are to be construed against the insurer (Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill.2d 330, 312 N.E.2d 247), he should be granted hospitalization coverage without any limitation on duration. However we find no such ambiguity. In determining whether a provision of an insurance contract can reasonably be said to be ambiguous, all the provisions of that contract should be read together rather than focusing on an isolated portion. 588 (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill.2d 1, 429 N.E.2d 1203.) In examining the entire contract at issue here it is clear that the benefit period was clearly labelled and set out in the policy as being 120 days. The cross-reference to the benefit section merely contains a clerical error resulting in a reference to article VIII(A) rather than IX(A). Article VIII(A) obviously has nothing to do with the duration of benefits. Accordingly we find that the trial court correctly held that there was no ambiguity in the contract and that defendant properly limited the hospitalization benefit to 120 days. 2 In his reply brief before this court plaintiff for the first time has contended that even if a limited duration period is contained in the contract, that period is 240 days, because the 120-day period is listed twice in article IX(A). Because plaintiff did not raise this issue below no proof was adduced as to the reason for the dual listing. Having failed to raise the issue in the trial court plaintiff cannot now properly raise it for the first time in a reply brief on appeal, accordingly we will not consider it further. Consolidated Rail Corp. v. Liberty Mutual Insurance Co. (1981), 92 Ill. App.3d 1066, 416 N.E.2d 758; Kravis v. Smith Marine, Inc. (1975), 60 Ill.2d 141, 324 N.E.2d 417. II 3 Finally plaintiff contends that because defendant extended coverage for the initial 60 days of his Connecticut hospital stay even though plaintiff had been hospitalized for more than 120 days in Illinois defendant waived the 120-day limitation. But in order to find such a waiver by an insurer it must be shown that the insurer had knowledge of all material facts before it acted. (Home Indemnity Co. v. Allen (7th Cir.1951), 190 F.2d 490; 16C Appleman Insurance Law & Practice sec. 9367 (1981); see Hartford v. Doubler (1982), 105 Ill. App.3d 999, 434 N.E.2d 1189.) In this cause plaintiff's contention depends upon a finding that defendant provided coverage for a period in excess of its contractual limitations with knowledge that plaintiff had exceeded those limitations. However it was the clear testimony of Emma Luster that in evaluating a claim for in-State hospitalization coverage the number of remaining days of coverage would be computed by subtracting days for which payment had already been made from the contractually provided available days. The testimony of Angelo Fraticola was confused, but our summary of that testimony establishes that the trial court could have concluded that this same method was used by his department for out-of-State claims. He testified that a previous period of hospitalization would be included in his *589 department's computer records only if defendant had already paid out for that period. Thus in this case Emma Luster's department paid for the initial Illinois hospitalization period on August 26, 1981. But the second period of Illinois hospitalization was not paid for until December 23, 1981, as no bill was received until December 9, 1981. When Angelo Fraticola's department received the notice from plaintiff's Connecticut hospital on September 2, 1981, defendant's records would still have showed that he was entitled to additional coverage. Thus when defendant authorized an additional 60 days of hospitalization coverage it did not do so with the knowledge that the 120-day limitation had already been exceeded and defendant cannot be said to have waived that limitation. For the foregoing reasons, the judgment of the trial court is affirmed. Affirmed. JOHNSON and LINN, JJ., concur.	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 30, 2007 Charles R. Fulbruge III Clerk No. 06-50932 Summary Calendar UNITED STATES OF AMERICA Plaintiff - Appellee v. WARREN KENNETH NELSON Defendant - Appellant -------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 7:05-CR-256-ALL -------------------- Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges. PER CURIAM:* Warren Kenneth Nelson appeals from his jury verdict conviction and sentence for passing a counterfeit United States Treasury check. He argues that the evidence produced at trial was insufficient to support the jury’s verdict. Nelson properly preserved this issue for appeal. See United States v. Moreno, 185 F.3d 465, 470 (5th Cir. 1999). Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found that the Government proved all the essential elements of Nelson’s offense beyond a reasonable doubt. See * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 06-50932 -2- United States v. Lankford, 196 F.3d 563, 575 (5th Cir. 1999). Nelson also argues that the district court erred by providing the jury with a deliberate ignorance instruction. Our review of the evidence shows that the deliberate ignorance instruction was warranted in this case. See United States v. Saucedo-Munoz, 307 F.3d 344, 348 (5th Cir. 2002). Nelson argues that the district court erred in determining the amount of restitution and in ordering the payment of restitution in a lump sum. Due to Nelson’s failure to object in district court on these specific bases, his challenge to the restitution order is reviewed only for plain error. See United States v. Garza, 429 F.3d 165, 169 (5th Cir. 2005). Nelson has failed to make such a showing. Accordingly, the district court’s judgment is AFFIRMED.	{ "pile_set_name": "FreeLaw" }
203 F.2d 315 MASTERSON et al.v.PERGAMENT et al. No. 11410. United States Court of AppealsSixth Circuit. March 23, 1953. Robert S. Marx, Cincinnati, Ohio, Lemuel B. Schofield, Philadelphia, Pa., Clair John Killoran, Wilmington, Del., and Lewis M. Dabney, Jr., New York City, G. Fred Di Bona, Marvin Comisky, Philadelphia, Pa., and Murray C. Bernays, New York City, Ernest P. LaJoie, Detroit, Mich., Samuel Marion, New York City, and David V. Martin, Detroit, Mich., on brief, for objecting stockholders and appellants. Theodore E. Rein, Chicago, Ill., Rockwell T. Gust and George E. Brand, Detroit, Mich., Gordon Johnson, San Francisco, Cal., for appellees. Samuel L. Chess, New York City, Perlman, Goodman, Hecht & Chesler, Chicago, Ill., Fischer & Fischer, Detroit, Mich., Theodore E. Rein, Chicago, Ill., Samuel L. Chess, New York City, and Bernard T. Hecht, Chicago, Ill., of counsel, for Jerome R. Pergament and George J. London, plaintiffs and appellees. Butzel, Eaman, Long, Gust & Kennedy, Rockwell T. Gust, A. Hilliard Williams and Philip T. Van Zile, II, Detroit, Mich., for Jos. W. Frazer, H. J. Kaiser, E. F. Kaiser, G. G. Sherwood, E. E. Trefethen, Jr., Clay P. Bedford, W. A. MacDonald, Hickman Price, Jr. Willkie, Owen, Farr, Gallagher & Walton, Mark F. Hughes and Walston S. Brown, New York City, for Kaiser-Frazer Corp. George E. Brand and George E. Brand, Jr., Detroit, Mich., Gordon Johnson and Robert G. Sproul, Jr., San Francisco, Cal., for Kaiser Aluminum & Chemical Corp. (formerly The Permanente Metals Corp.). Norman Annenberg, New York City, for Abram J. Berkwitz, Abraham Fistel, Claude S. McTeague, Richard H. Locke, Bernard D. Brodie, stockholders of Kaiser-Frazer Corp. Before SIMONS, ALLEN and MILLER, Circuit Judges. 1 ALLEN, Circuit Judge (dissenting). 2 This is an appeal from an order of the District Court approving a compromise entered in a derivative suit between Pergament and London, appellees and stockholders of Kaiser-Frazer Corporation (hereinafter called Kaizer-Frazer) and appellees Joseph W. Frazer, Henry J. Kaiser and other directors of Kaiser-Frazer Corporation. Graham-Paige Motors Corporation, Otis & Company, Cyrus Eaton, The Permanente Metals Corporation, Permanente Products Company, United States of America, Reconstruction Finance Corporation and Kaiser-Frazer Corporation were joined as defendants. The United States and the Reconstruction Finance Corporation were dismissed as party defendants and no error is assigned to this action. 3 The compromise covers a series of stockholders' suits filed primarily against the directors of Kaiser-Frazer, a corporation formed in 1945 by Henry J. Kaiser and the Kaiser interests for the purpose of manufacturing automobiles. The various stockholders' suits in general assert breach of trust on the part of the directors, and fraud and illegal preferences to various corporations dominated by the Kaiser Interests, and joined as defendants. The compromise was executed October 25, 1949, submitted to the District Court of the Eastern District of Michigan, and approved under Rule 23(c), Federal Rules of Civil Procedure, 28 U.S.C.A. The judgment dismissed the action of Pergament and London which as finally amended included the claims of all other stockholders' derivative suits theretofore started against the same defendants. The suit for damages of Kaiser-Frazer Corporation against Otis & Company filed in New York, while growing out of the phase of the transactions involved, was not affected by the judgment. 4 The first stockholders' action was instituted by James F. Masterson February 9, 1948, in the state court of Wayne County, Michigan. A similar suit was filed by Michael Stella May 10, 1948, in the United States District Court for the Southern District of New York. The instant case was filed by Jerome B. Pergament and George J. London in the District Court of the Eastern District of Michigan May 14, 1948. June 30, 1948, Eva Lefker instituted an action in the United States District Court of Delaware and a similar suit was started by Otis & Company in the Chancery Court in Delaware July 2, 1948. In all of these suits service was obtained a considerable time before the settlement was executed. 5 July 9, 1948, the plaintiffs Fleming and Piantineda filed in the state court of California a derivative suit attacking the lease of the Long Beach property. 6 The following were the most important claims: (1) The Graham-Paige transaction in December 1946, as to which appellants claim that a loss of several million dollars was incurred by Kaiser-Frazer under a contract by which it acquired all of the automotive assets of Graham-Paige, a corporation in which Joseph W. Frazer, president of Kaiser-Frazer and one of its directors, was heavily interested; (2) the Fleetwings transaction in 1946 and 1947, between Kaiser Fleetwings, Inc., a Kaiser-owned corporation, and Kaiser-Frazer. It is claimed among other things that the prices paid Fleetwings by Kaiser-Frazer for automobile doors and deck lids were excessive and exorbitant. (3) The Permanente Metals transaction, which arises out of the transfer in 1946 by Kaiser-Frazer to the Permanente Metals Corporation, approximately 65% of the stock of which was at the time owned by the Kaiser interests, of a letter of intent issued by the United States Government and accepted by Kaiser-Frazer. The letter offered a lease to Kaiser-Frazer on favorable terms with option to purchase an aluminum rolling plant at Trentwood, Washington, for which the Government had paid approximately $47,630,000. While the lease of other Government aluminum plants was involved, it is particularly contended that the contract for the lease of the Trentwood plant was transferred to Permanente without adequate consideration. (4) The manipulation and stabilization transaction arising out of claimed violations in 1948 by Kaiser-Frazer of Sec. 9(a)(2) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78i(a)(2). Kaiser-Frazer had agreed with three underwriters to offer an issue of 1,500,000 shares of stock for sale to the public at the close of the market on February 3, 1948. It was arranged that Kaiser-Frazer should stabilize the stock by purchase until the close of the New York Curb, and it was estimated that Kaiser-Frazer, in order to stabilize, should purchase not more than 25,000 shares. These arrangements miscarried, and as a result Kaiser-Frazer purchased 186,200 shares of its own stock at a price of $13.50 per share. Later Otis & Company and the First California Company, two of the underwriters, notified the corporation that they would not handle the stock and so the stock sale was completely abortive. Out of this transaction hostility and litigation arose between Kaiser-Frazer and Otis & Company. A suit filed by Kaiser-Frazer in New York for damages for breach of contract by Otis & Company due to its failure to accept and pay for the stock which it had contracted to underwrite was successful in the United States District Court. But the Court of Appeals for the Second Circuit reversed the judgment below and directed entry of judgment for defendants upon the ground that Kaiser-Frazer in this transaction misrepresented certain items of profit in the prospectus and registration statement and that Otis & Company was thus released from liability. Kaiser-Frazer Corp. v. Otis & Co., 2 Cir., 195 F.2d 838. Certiorari denied, 344 U.S. 856, 73 S.Ct. 89. 7 The Court of Appeals for the Second Circuit declared in that case, 195 F.2d at pages 843, 844: 'Kaiser-Frazer stated its earnings in such a way as to represent that it had made a profit of about $4,000,000 in December, 1947. This representation was $3,100,000 short of the truth. * * * Any sale to the public by means of the prospectus involved here would have been a violation of the Securities Act of 1933, 15 U.S.C.A. § 77l(2).' 8 Other actions pleaded involved business deals with Kaiser Steel and Kaiser Engineers, corporations owned and dominated by the Kaiser interests, the manufacture by Kaiser-Frazer of 30,000 rototillers for Graham-Paige, and the granting of the New York Kaiser-Frazer distributorship to the Muntz Car Company. These actions asserted that favoritism was shown and excessive fees and profits paid by Kaiser-Frazer to the companies named. Interlocking directorates existed between the various Kaiser companies, and it is alleged that Kaiser-Frazer, in which the Kaiser interests owned a smaller proportion of the stock than in the other companies, was milked for their profit. 9 Gross negligence is charged in the lease of the Long Beach, California, property. 10 If the directors of the corporation acted fraudulently or unfairly in arriving at the settlement, it should be set aside. Feldman v. Pennroad Corp., 3 Cir., 155 F.2d 773. The District Court correctly held that in the proceedings under Rule 23(c) it is the duty of the court to see that the compromise is fair and reasonable and that no collusion or fraud has been practiced in the consummation of the settlement agreement. Winkelman v. General Motors Corp., D.C., 48 F.Supp. 490, 493. The directors and dominant and controlling stockholders are fiduciaries. Their powers are powers in trust. Pepper v. Litton, 308 U.S. 295, 306, 60 S.Ct. 238, 84 L.Ed. 281; Epstein v. United States, 6 Cir., 174 F.2d 754, 764; Mayflower Hotel Stockholders Protective Committee v. Mayflower Hotel Corp., 84 U.S.App.D.C. 275, 173 F.2d 416, 418; Young Spring & Wire Corp. v. Falls, 307 Mich. 69, 101, 11 N.W.2d 329. 11 Under Michigan law the burden was on the interlocking directors to prove that they acted fairly in the interests of the corporation. Wiseman v. United Dairies, Inc., 324 Mich. 473, 37 N.W.2d 174; Mich. Stat. Ann. 21.13(5). Comp. Laws 1948, Sec. 450.13, subd. 5. This is also the federal rule. Epstein v. United States, supra; Wentz v. Scott, 6 Cir., 10 F.2d 426, 428,. As stated by Judge Knappen, in such cases co-directors and managers occupy a fiduciary relation toward both corporations. Contracts between them will be carefully scrutinized. Where there is an apparent unfairness in the contract or personal advantage to one party to the detriment of the other, the burden rests upon the one obtaining such apparent unfair advantage to show his good faith and the propriety of his act. 12 Most of the cases here pleaded involved common directors. The District Court held that in all probability there would be no recovery by the stockholder plaintiffs in '(a) the Trentwood; (b) Manipulation-Stabilization; (c) Kaiser Steel; (d) Kaiser Engineers; and (c) Long Beach-Rototiller.' The court held that there might be a recovery on the stock valuation involved in the transfer of automotive assets by Graham-Paige to Kaiser-Frazer; on the Muntz Car Company deal, and also from Fleetwings on the contract to manufacture doors for Kaiser-Frazer. In view of the burden of proof resting on directors and officers acting in dual capacities it is conceivable that the recovery might be greater in amount and that it might cover items other than those indicated in the opinion and findings of the District Court. 13 None of the various stockholders' suits at the outset involved all the nine cause of action. The Masterson suit, as amended in May, 1948, pleaded all except Permanente. The Stella suit set up illegal manipulation of the price of Kaiser-Frazer stock. The Pergament and London suit originally pleaded only illegal stock manipulation and the purchase of the automotive assets of Graham-Paige. It was amended September 13, 1948, to include the Permanente transaction. The Lefker suit was the first to attack the transfer of the United States letter of intent from Kaiser-Frazer to Permanente, for the Trentwood Aluminum Rolling Mill, and pleaded this cause only. Otis & Company pleaded only the Permanente transaction. 14 Early in 1949, then, stockholders' derivative suits were pending against the directors of Kaiser-Frazer in three state courts and in three federal courts. The states included Michigan, California, New York and Delaware. 15 In April, 1949, Kaiser-Frazer was in default upon bank loans of $16,000,000 guaranteed by the Kaiser interests, and faced the threat of liquidation. It secured an offer from the RFC on October, 1949, for a loan of $44,400,000. The granting of this loan was conditioned, among other things, upon the making of a guaranty of $15,000,000 of the loan by Kaiser and his associates and a pledge of $10,000,000 of collateral. Henry J. Kaiser stated that he or his companies would not guarantee the loans unless the stockholders' suits were settled; but, as a matter of fact, on November 9, 1949, the day the order to show cause why the compromise should not be approved was filed, the loans were guaranteed by Kaiser and his associates in a contract which made no mention of the stockholders' suits. 16 About September 21, 1949, Mark F. Hughes, an attorney connected with the firm which was counsel for Kaiser-Frazer in these proceedings as well as for Frazer and the Kaisers individually, stated to Samuel L. Chess, attorney for Pergament and London, that there was a possibility of an offer of settlement. After asking for and receiving assurance that Chess had nothing whatever to do with Otis & Company, Hughes said that he might soon have a proposal. Hughes required, and Chess agreed, that Chess would disclose to no one, not even to his own partners or associates, that there was a possibility or any talk of settlement. Chess associated an attorney, Israel B. Perlman, with him, who said that he 'couldn't evaluate or appraise the various causes of action,' but agreed to help Chess in negotiation. Hughes dissuaded Chess from taking depositions, saying that he would give Chess any information that he would like to have. Later Hughes and his partner, Walston S. Brown, met with Chess. Brown explained some of the facts of the Graham-Paige transaction to Chess, and they also discussed the Fleetwings controversy and the matter of the lease of the Long Beach plant. Brown, in addition to being a member of the firm representing Kaiser-Frazer and being himself a defendant director of Kaiser-Frazer, was also attorney for Henry J. Kaiser, Edgar Kaiser, and Joseph Frazer. At the proceedings in the District Court he testified that in these negotiations with Chess and Perlman his effort was to get the easiest possible terms of settlement for the individual defendants and Graham-Paige, and that he therefore avoided making disclosures or stating facts or furnishing information that would support a recovery for Kaiser-Frazer in these suits. This striking admission was made although Brown's firm was paid by Kaiser-Frazer for these negotiations. 17 Settlement of the Pergament and London suit was finally proposed. The consideration offered was (1) the guaranty by the Kaiser interests of the RFC loan; (2) the purchase by Kaiser Fleetwings (Kaiser Metal Products, Inc.) at their depreciated book value of certain presses which belonged to Kaiser-Frazer and were in the Fleetwings plant; and (3) $50,000. Chess and Perlman were pleased with the offer. They thought that if they got only the guaranty of the RFC loan it would be a 'wonderful settlement.' They decided to ask for $500,000, but agreed if need be they would accept the offer as given, rather than jeopardize the compromise. On October 25, 1949, the settlement was executed as proposed, except that it substituted the $500,000 demanded by Chess and Perlman for the $50,000 offered. Three days previous, October 22, 1949, Chess, securing from Hughes the necessary data, filed an amended petition which included the various other causes of action pending in other jurisdictions. The settlement contract contained broad general releases in favor of all the defendants including Graham-Paige, Frazer and Fleetwings, which contributed nothing. The directors of Kaiser-Frazer, all of whom were originally joined as individual defendants, approved the compromise. The proceedings were then brought before the District Court for hearing pursuant to notice under Rule 23(c), Federal Rules of Civil Procedure. So far as this record shows, no discussion was held in the negotiations as to the value of the added causes of action and the figure of settlement remained the same as that negotiated for the causes of action originally pleaded. 18 Appellants attack the settlement upon the ground that it was secured by concealment and fraud and that the consideration was inadequate. The District Court held an extended hearing and found that in none of the transactions had there been fraud, collusion, or attempt on the part of the Kaiser interests to benefit at the expense of Kaiser-Frazer. The court concluded that guaranty of the RFC loan in itself justified the compromise, that the settlement was for the best interests of all the stockholders and dismissed the action. It considered that concealment of the negotiations was justified by the hostility of Otis & Company and other stockholder plaintiffs and that, in view of the extended hearing, concealment of information during the negotiations was immaterial. 19 Findings of the District Court when based on oral testimony are generally conclusive in the absence of manifest error. But definite limitations to this rule have long existed. If the findings are based entirely on documentary evidence the reviewing court may make its own findings. If the trial court's finding based on oral testimony is contradicted by the undisputed facts, it is not controlling. As stated in United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746, the findings of the trail court, when dependent upon oral testimony, have great weight but are never conclusive. If the findings leave the reviewing court with the 'definite and firm conviction that a mistake has been committed,' they are clearly erroneous. United States v. United States Gypsum Co., supra, 333 U.S. 364, 395, 68 S.Ct. 525. Orvis v. Higgins, 2 Cir., 180 F.2d 537. 20 In the writer's opinion the controlling findings here are clearly erroneous. The proposed settlement involved in emphatic form a compromise of actions against directors and officers serving in dual capacities in far-flung companies dominated by one man, his family, and close associates.1 As pointed out in Upton v. Otis, 2 Cir., 155 F.2d 606, if the suits were to go to trial, the fiduciaries would usually bear a heavy burden of proof as to all crucial issues. 21 The District Court considered that arms-length negotiations are not required for a valid compromise. We think under the instant record this was error of law. This was not the usual compromise of a claim belonging only to the negotiating party. Pergament and London were trustees for the other stockholders. Young v. Higbee Company, 324 U.S. 204, 65 S.Ct 594, 89 L.Ed. 890. The individual appellees were directors and hence fiduciaries. Pepper v. Litton, supra. They were acting in dual capacities. A compromise with and on behalf of fiduciaries and agreed to by stockholders who represent all other stockholders must be closely scrutinized in order to determine whether fiduciary duties have been violated. A release obtained by a fiduciary through concealment or misrepresentation is of no effect. Maas v. Lonstorf, 6 Cir., 194 F.577, 587-588; Irving Trust Company v. Deutsch, 2 Cir., 73 F.2d 121, 126. 22 The issue of concealment is material. Certain facts were, as Hughes admitted, suppressed during the period of negotiation. Thus it does not appear that Chess and Perlman were informed by Hughes or Brown of the details of the claim for over a million dollars held meritorious by the District Court for excessive prices paid to Fleetwings for doors. Perlman was not informed of the prior negotiations with reference to the purchase of the presses by Fleetwings. He learned of them for the first time in court. The issue of concealment is also material because the attorneys for Pergament and London were forced to conceal from all other attorneys and from their own associates the fact that there was any possibility of settlement. The District Court held that the compromise was arrived at through bargaining in good faith, in spite of the exclusion of the parties in five other pending cases. The court held that a legitimate reason for exclusion of the other parties was that Otis & Company was hostile and that the Masterson case was filed by a stockholder who had formerly been an attorney for Otis & Company. 23 This was error of law. It is not the law that attorneys representing stockholders in derivative suits, or their parties, may be excluded from the litigation because of their hostility toward the group which is being sued. Hostility is usually present in stockholders' suits. The motive of the stockholder in filing a derivative action is immaterial. Young v. Higbee Company, supra, 324 U.S. 214, 65 S.Ct. 600. There the Supreme Court declared that the rights of stockholders were not to be ignored 'because of some motive attributable to Young.' See also Johnson v. King-Richardson Company, 1 Cir., 36 F.2d 675, 67 A.L.R. 1465. The exclusion of parties who had already pleaded the same and other causes of action and secured valid service is particularly inexcusable because of the deliberate and successful attempt to cut off their causes of action by amendment so timed that the settlement would be executed, even though not approved by the court, before other plaintiffs could effectively protest. 24 The proceedings for settlement were not only instituted but admittedly directed by the attorneys for the appellees. Depositions were discouraged. Chess and Perlman were briefed by Brown and Hughes whose firm was paid by Kaiser-Frazer but admittedly acted adversely to it. In the negotiations Perlman, who had charge of the bargaining, refused to discuss the merits of the causes of action pleaded in the Pergament amended complaint. He frankly said he could not evaluate them. Brown said that he had no knowledge of his own about the Permanente transaction. Perlman's office associates were acquainted with the claims but Perlman was forbidden to discuss them. The only question debated in the conferences was the amount of cash settlement. 25 As trustees for other stockholders, Chess and Perlman were required to evaluate the causes of action, to press them sincerely for the benefit of the corporation, and not to eliminate claims without receiving adequate consideration. 26 But evaluation was completely wanting both with reference to the causes of action upon which the negotiation was based and those added by amendment. For instance, the Fleetwings controversy added by amendment constituted a good case on behalf of Kaiser-Frazer, but Chess and Perlman did not urge this. 27 Pergament and London were under a duty fairly to represent the common rights of other stockholders. Young v. Hughes Company, supra, 324 U.S. 212, 65 S.Ct. 594. They did not, under the undisputed facts, represent them at all as to Fleetwings or the Muntz Car Company case. Up to a few days before the actual settlement, the Fleetwings transactions were considered of no importance by Chess. They were not included in the amended petition of September 13, 1948, upon which the negotiations were founded and the amount of the settlement was in no way increased when they were included in the final amendment. The Muntz Car Company transaction, evidence as to which has been deleted from the record, was found by the court to have probable merit in the amount of $85,000, and was also completely ignored. These meritorious causes of action, under the admitted evidence, have no weight in the result achieved for Kaiser-Frazer. 28 The releases included in the proposed settlement emphasize the lack of effective representation by Chess and Periman. The general releases covered three non-contributing defendants, Graham-Paige, Fleetwings, and Joseph Frazer. There were the defendants primarily liable if the District Court's conclusion that the Fleetwings door transaction, the Graham-Paige receipt of undervalued stock from Kaiser-Frazer, and the Muntz Car Company distributorship matter presented cases of merit. The order of the District Court limited the general release provisions of the settlement in certain ways but left them in force as to these causes of action. These releases were of course desirable for the appellees but hardly beneficial to Kaiser-Frazer and other stockholders. Brown, a chief negotiator for the settlement on behalf of the appellees, director and secretary of Kaiser-Frazer, and admittedly acting in dual capacities, was released on motion of the plaintiffs to the hearing. 29 It is conceded that the settlement agreement was planned and negotiated by the attorneys for the appellees Henry J. Kaiser, Joseph Frazer, and individual directors who, while nominally representing Kaiser-Frazer, admitted that they were acting adversely to its interests. These attorneys picked the suit that they would settle, with its friendly lawyers, and by amendment inserted in the suit causes already pending in three federal courts in other states and in three state courts. The adversary relationship essential to protection for Kaiser-Frazer was thus seriously impaired if not destroyed. Cf. In re Insull Utility Investments, D.C., 6 F.Supp. 653, affirmed 7 Cir., 74 F.2d 510. 30 Such a settlement subverts the purpose of Sec 23(a) that the persons, members of a class, who may sue and be sued on behalf of all must 'fairly insure the adequate representation of all.' Weeks v. Bareco Oil Company, 7 Cir., 125 F.2d 84, 91. Judge Evans there pointed out, 125 F.2d at page 93 that some individual plaintiffs might wish to sue in a jurisdiction of their own selection. The stockholders here who had filed suits in so many different jurisdictions lost this opportunity through the final amendment without notice to them of the Pergament petition. 31 The dissent of stockholders from the action of one assuming to represent the class makes adequate representation impossible. McQuillen v. National Cash Register Company D.C., 22 F.Supp. 867, 873. In this case there was no showing that all the stockholders desired the relief sought in the suit. The practical result here would seem to be that stockholders can compel others without notice to be bound by a compromise which they oppose. Lefker, Masterson, and Otis & Company could not dissent because they knew nothing of the projected settlement prior to its execution. As declared by the Court of Appeals of the District of Columbia in Knowles v. War Damage Corporation, 38 U.S.App.D.C. 388, 171 F.2d 15, 18, certiorari denied 336 U.S. 914, 69 S.Ct. 604, 93 L.Ed 1077: 'Factors bearing upon adequacy of representation are various and are not specifically enumerated in the law: It is pertinent to consider whether other members of the class have notice, express or constructive, of the pendency of the action and of its representative character; whether such members desire, or acquiesce in, such representation; whether the number of parties is sufficient as compared to the numerical size of the class.' As to numerical representation here, the District Court rightly held under the Federal rule and also under Michigan law that Pergament was not competent to sue on the Permanente cause of action because he acquired his stock after the transactions complained of. This leaves Dr. London, owner of 8 shares, as claimed representative of over 30,000 Kaiser-Frazer stockholders in the all-important Permanente controversy. 32 But the question of notice and acquiescence in representation by Pergament and London is even more important. While the members of the class had constructive notice of the pendency of the amended complaint of September 13, 1948, they had no effective notice of the amendment of October 22, 1949, which appropriated all other causes of action. Three days intervened between this final amendment and the execution of the compromise. Appellees' witnesses frankly state that the compromise negotiations were carefully concealed because the appellees knew that other parties in similar suits would 'make as much trouble for us as they possibly could.' The inescapable inference is that appellees knew that their representation would not secure assent. Notice was given to all parties before hearing in the District Court upon the compromise but notice was carefully withheld from parties other than the negotiators until the compromise agreement was executed. 33 If manipulations such as these are upheld in the courts, the stockholders' derivative suit, which was developed to protect the corporation and its stockholders from breach of trust or fraud on the part of the directors, will cease to be a protective shield. The deliberate concealment and exclusion of other parties and appropriation of their causes of action run counter to the purpose of Rule 23(a) and constitute a constructive fraud upon the stockholders of Kaiser-Frazer. 34 Appellees urge that the fact that the District Court held extended hearings and decided that the settlement benefited the corporation wipes out all preliminary considerations. As the writer views this record the compromise sent the case to the District Court with the objecting stockholders carrying an unfair burden. In all but two of the causes of action pleaded, the stock manipulation and Long Beach, if they had come to trial, the burden of proof would have been on the directors. Upson v. Otis, supra. This also is the law of Michigan. Wiseman v. Musgrave, 309 Mich. 523, 16 N.W.2d 60. Here the burden was in effect placed on the stockholders. Causes of action which had been completely ignored in the settlement were lumped together, presented to the District Court as a fait accompi and were considered on a tangent, not squarely as they would be in a trial where the issue is not the probability of recovery but the actual law affecting liability and the actual fact which establish whether liability exists. 35 I think the settlement should be set aside because of unfairness in the negotiations. Also I think that the consideration is inadequate. 36 What Kaiser-Frazer received in settlement was $500,000 from Permanente, around $880,000 from Fleetwings for presses which belonged to Kaiser-Frazer, and the guarantee of the RFC loan. Lloyds of london stated that it would cost $3,750,000 to have such a guaranty supplied. This is not disputed. For the purposes of this discussion I assume that payment for the presses was a valid consideration and proceed to discuss the question of consideration on the basis that Kaiser-Frazer received the equivalent of $5,130,000 in the settlement. 37 With the exception of the Muntz Car Company matter, the automobile door item in Fleetwings, and the undervalued stock in Graham-Paige, the District Court found no merit in any of the nine causes of action stated. He disallowed the claim for $2,714,000 paid for 'intangibles' in Graham-Paige and the deck lid item in Fleetwings as well as the entire cause of action for Permanente. 38 I shall discuss these three transactions only, without prejudice to other causes of action stated. They affect the vital issue of adequate consideration, and as to them the District Court's conclusions are based upon clearly reviewable findings. Appraisal of the merits of litigation requires legal judgment and involves mixed questions of law and fact. As to Fleetwings, Graham-Paige, and Permanente, the evidence here relied on is either undisputed or consists of documentary as well as oral testimony. Moreover, the documentary evidence on controlling issues contradicts the oral statements. The doctrine announced in Orvis v. Higgins, supra, 180 F.2d 539, therefore applies: 'Where the evidence is partly oral and the balance is written or deals with undisputed facts, then we may ignore the trial judge's finding and substitute our own,' and we may follow the same course 'if the written evidence or some undisputed fact renders the credibility of the oral testimony extremely doubtful'. Arnolt Corporation v. Stansen Corporation, 7 Cir., 189 F.2d 5, 10; Dollar v. Land, 87 U.S.App.D.C. 214, 184 F.2d 245, 249. Fleetwings 39 Kaiser Cargo, later Kaiser Fleetwings, Inc., now Kaiser Metal Products, Inc., was established by the Kaiser interests which have always owned, dominated, and controlled it. Henry J. Kaiser, his family, and associates owned most of the stock, and the boards of Kaiser-Frazer and Fleetwings were largely interlocking. Kaiser-Frazer supplied Fleetwings with machinery costing $800,000 which Kaiser-Frazer installed. After the Masterson suit was filed, $600,000 was paid by Fleetwings as the cost of installation. Presses to the value of $950,754 were supplied by Kaiser-Frazer to which it retained title. Kaiser-Frazer then contracted with Fleetwings to deliver deck lids and doors under contracts which provided that Kaiser-Frazer should pay cost plus 10%. The District Court called these contracts 'quite a liberal arrangement.' Admittedly the result was that the Kaiser interests were guaranteed a 10% profit on these articles. Against the background of interlocking managements and their interplay the items of the doors and deck lids are significant. An overcharge of $228,000 is claimed for the deck lids and an item of around $1,400,000 for the doors. 40 The District Court held it possible that the door part of the Fleetwings contract might be construed as detrimental to the interests of Kaiser-Frazer. It thus held that the most important of the contracts between Fleetwings and Kaiser-Frazer was probably tainted with self-dealing and that the claim with reference to the doors was meritorious. 41 This claim grew out of the fact that up to December, 1947, car doors had been manufactured for Kaiser-Frazer by The Hayes Manufacturing Company, a concern long established in this business. During the period in question it turned out 1,400,000 rear and front doors for Kaiser-Frazer. December 5, 1947, Kaiser-Frazer entered into a contract with The Edward G. Budd Company for the manufacture of front doors at a price of $12.00 per door. On December 4, at the request of Kaiser-Frazer, Hayes offered a bid on all of the Kaiser-Frazer door requirements at $9.66 per front door and $8.52 per rear door, upon the condition that Kaiser-Frazer expend about $550,000 for new equipment to be placed in the Hayes plant. On the day after receiving the Hayes bid Kaiser-Frazer contracted with Fleetwings to equip the Fleetwings plant for the manufacture of doors and deck lids, for which Fleetwings was to receive cost plus 10%. Between December 5, 1947, and October 25, 1949, when the settlement was consummated, Fleetwings manufactured 165,420 doors for which it was paid $18.30 each for 90,742 doors and $18.17 each for 74,678 doors. The Budd door at $12.00 per front door was stated by Hallett, general manager of Fleetwings, to be just as good as the Fleetwings door. On the day of the settlement agreement the price of the Fleetwings doors dropped to $12.00. The District Court considered that such a sudden drop on the very day of the agreement was a factor which rendered the transaction questionable. 42 Hayes bid on the deck lids at a net price of $5.90 each. Kaiser-Frazer gave the deck lids to Fleetwings to manufacture at a net price which varied from $8.75 to cost plus 10%. The net price of $8.75, which is higher than the Hayes bid, is lower than the price given Fleetwings under the cost plus arrangements. Fleetwings manufactured about 80,000 deck lids for Kaiser-Frazer and the difference between the price it received and the price bid by Hayes is around $228,000. 43 The court concluded that the deck lid transaction could not be questioned mainly because the Hayes product was unsatisfactory. The fact that Kaiser-Frazer again asked Hayes for a bid in December of 1947 is strong evidence to the contrary. 44 In addition to the expenditure for equipment and installation for the manufacture of doors by Fleetwings, Kaiser-Frazer spent approximately $300,000 for tools and dies for the deck lids. The same situation existed with reference to both doors and deck lids. The Kaiser interests, owners of Kaiser Fleetwings, profited greatly by the manufacture of both items at the expense of Kaiser-Frazer. Contracts under which these items would be made at much smaller prices by Hayes and the Budd Company were superseded by contracts with the Kaiser-owned corporation upon which over $1,000,000 additional was spent by Kaiser-Frazer for equipment and installation. The deals on both doors and deck lids were part of the same transaction, each bringing large financial benefit to the Kaiser interests. A substantial recovery on both items is probable and the amount probably recoverable is around $1,600,000. Graham-Paige 45 In December, 1946, Graham-Paige transferred to Kaiser-Frazer all its automotive assets. Kaiser-Frazer and Graham-Paige had been engaged in an automobile manufacturing enterprise under which Kaiser-Frazer leased the Willow Run plant near Detroit for their joint use, 2/3 for Kaiser-Frazer and 1/3 for Graham-Paige. The Kaiser interests then owned about 9% and Graham-Paige about 6% of Kaiser-Frazer. Frazer and his wife and daughter were heavily interested in Graham-Paige. Frazer was president of both corporations, a director of Kaiser-Frazer, and chairman of the board of directors of Graham-Paige. Edgar Kaiser was general manager of both corporations; Motter was director of both corporations; MacDonald, Bedford, and Price were vice-presidents of both corporations. 46 In the fall of 1946 Graham-Paige could not finance its third or production and a merger of the corporations was considered and rejected. It was then decided that Kaiser-Frazer should purchase the Graham-Paige automotive assets. Graham-Paige was to transfer all physical automotive assets, $3,000,000 cash to be obtained by loan, and an additional $1,250,000. Kaiser-Frazer was to pay Graham-Paige's outstanding debentures upon maturity, together with interest at 4% until maturity, and to transfer to Graham-Paige 750,000 shares of Kaiser-Frazer stock at $6.50 per share. This was $3.50 less than the book value of the shares which was $10.00. On the date when the stock was transferred, the selling price was $9.75. The difference between the assets transferred to Kaiser-Frazer and the amount paid was adjusted to $2,714,000 and was covered in the exchange by so-called 'intangible' assets acquired from Graham-Paige. The intangibles were claimed to include: (a) entire ownership of the automobile business formerly operated on a joint basis with Graham-Paige; (b) entire benefit of the dealer organization jointly used; (c) acquisition of patents, trademarks, and trade names of Graham-Paige and the good will of Graham-Paige automobile business; (d) acquisition of Graham-Paige distributor organization; (e) elimination of legal problems and troubles arising out of joint operation; (f) avoidance of legal questions in event of insolvency of Graham-Paige; (g) avoidance of disastrous effect of failure of Graham-Paige upon credit of Kaiser-Frazer. It is not asserted that any amount had been allocated to any of these intangibles on the books of Graham-Paige nor in the minutes of either corporation prior to the meeting of the board of directors held December 3, 1946, which considered and put through the sale of the automobile assets. At no point was the value of the claimed intangibles itemized. Bailey, an accountant of Kaiser-Frazer who had secured his position through Frazer, was very active in the negotiations, together with Walston S. Brown. Bailey conceded that the figure of $2,714,000 for intangibles was a mere bookkeeping adjustment. Brown said it was arrived at by calculating what Kaiser-Frazer would transfer and then fixing the price for the intangibles to balance the figures. 47 As to the value of the listed intangibles Graham-Paige, in view of its lack of finances, could not use its right to the one-third capacity of the Willow Run plant. Brown conceded in effect that Graham-Paige could not assign this right which grew out of a joint venture. The RFC lease prevented assignment. Under the joint operating agreement Kaiser-Frazer already had a 100% right to use the plant since, owing to its financial difficulties, Graham-Paige could not. 48 A similar conclusion is necessitated with reference to the claimed intangible asset arising from the avoidance of the disastrous effect of failure of Graham-Paige upon the credit of Kaiser-Frazer. This involved no asset of Graham-Paige. It is error of law to consider that such claimed intangibles justify any substantial allowance in this transaction which was required to be based upon a fair valuation of the property of Graham-Paige. 49 Several of the other intangibles listed cannot under any theory be considered intangible assets for which Kaiser-Frazer should rightfully compensate Graham-Paige. The avoidance of legal complications in the event of Graham-Paige's insolvency was not a property right which Graham-Paige could sell to Kaiser-Frazer. If Graham-Paige's insolvency was imminent that insolvency would create no intangible asset. 50 Two other intangibles said to be taken over by Kaiser-Frazer are a dealer organization jointly used and operated by the two companies but mainly financed by Kaiser-Frazer. on the undisputed testimony Kaiser-Frazer did not get the complete dealer and distributor organization in the separation of the companies. Graham-Paige took part of the dealer group for the sale and distribution of farm equipment, now its main business. During the course of the trial the District Court pointed out that there was no value in these claimed intangibles because the dealers had no place to go but to Kaiser-Frazer but they are included in the court's holding approving the valuation of all the intangibles. 51 The good will of the Graham-Paige automobile business, which was never evaluated on the books, is likewise questionable. The automobile operation had been going on for a little over a year, relatively few cars had been made, and good will in the automobile business had not been built up. As to the patents they were not considered important by Bailey. A prospectus of Kaiser-Frazer states that it is 'not materially dependent upon patents.' The entire record upon this point shows in fact that the intangibles had very little value and that the allowance of the $2,714,000 was, as Bailey said, purely a balancing transaction. The evidence requiring these conclusions came from witnesses adverse to the appellants. 52 The District Court found that there would probably be recovery on the undervaluation of the stock, 750,000 shares of which were sold at $1,62 1/2 less than the current market price. This undervaluation would fairly give Kaiser-Frazer over $1,200,000. Moreover, Kaiser-Frazer paid par value for the debentures of Graham-Paige, which were selling on the market at 56. This was a loss of around $4,000,000. 53 In all, a reasonable recovery upon the Kaiser-Frazer stock and the intangible assets item would be $3,914,000. If a cause of action for the excessive price paid for the debentures were included, the recovery on this transaction might well be doubled. 54 The reasonable recovery in the Fleetwings and Graham-Paige matters might probably amount to $9,000,000. For these two transactions only the settlement was inadequate. Permanente 55 This cause of action attacks the transfer to Permanente by Kaiser-Frazer of the definitive letter of intent covering the Trentwood plant, an aluminum rolling mill which cost the Government $47,630,000 to construct and has a rated production capacity of 288,000,000 pounds per annum. This transaction grew out of the effort of the RFC and the War Assets Corporation to sell to private industry aluminum properties which had been constructed by the Government for the war effort of World War II. The Government desired to set up integrated private operations in this field and both Permanente and Kaiser-Frazer had been in contact with those authorized to dispose of these and other plants, with a view to leasing them. Early in 1946, the War Assets Administration decided to lease the plant at Trentwood, Washington, to Kaiser-Frazer with an option to purchase. At the same time Kaiser Cargo, a Kaiser-owned corporation, had been issued letters of intent covering Baton Rouge, a plant for making alumina from bauxite, and Mead, a plant for converting alumina into ingots. Kaiser-Frazer decided not to undertake the manufacture of aluminum and requested from the Government authority to assign the Trentwood letter of intent to Permanente. Kaiser Cargo made a similar request as to Mead and Baton Rouge. The three letters of intent were assigned to Permanente. With no consideration except an assumption of the liability under the lease and a requirements contract for aluminum, the Trentwood lease was transferred to Permanente, of which the Kaiser interests then had 65% control and in which they had a much greater financial stake than in the Kaiser-Frazer corporation. The District Court declared in substance that if there was a probability of the Kaiser-Frazer stockholders obtaining a forced assignment of the Trentwood plant or of recovering damages in cash based on their idea of what would have been a fair percentage of Permanente stock to be received by Kaiser-Frazer, then the consideration specified in the settlement agreement was not enough. 56 The Permanente aluminum operation has been highly successful financially, netting over $8,000,000 in the first year of operation. Sales by Trentwood produce most of the profit from the aluminum venture. 57 The District Court held that the letter of intent covering Trentwood was a business opportunity of Permanente, not of Kaiser-Frazer, that the letter of intent had only doubtful value, and that the action had no merit. These conclusions involve errors of law. 58 The preliminary letter of intent did not constitute property; but the definitive letter of intent when accepted by Kaiser-Frazer became a binding contract under which Kaiser-Frazer had definite property rights. The original letter of intent for Trentwood was issued, not to Permanente but to Kaiser-Frazer. While for several years Permanente had shown interest in securing the Trentwood property, Permanente had acquired no legal right. 59 The District Court based its conclusion that there was no merit in the cause of action against Permanente largely upon the ground that it would have been illegal for Kaiser-Frazer to enter the aluminum business and would have been cause for stockholders' actions because the 'use of proceeds' clause in the SEC prospectus covering the second issue of Kaiser-Frazer stock precluded it. The SEC did not consider this a serious objection. Its chairman suggested the amendment of Kaiser-Frazer's registration statement to cover the point but later agreed that no amendment was required in connection with the lease of the aluminum rolling mill. The War Assets Administration pointed out in its public statements on the matter that Kaiser-Frazer intended to use aluminum in the automobile business. It is a fair inference that the Government considered that the activity was covered by the broad Kaiser-Frazer charter. However, if what the Court calls the probable legal objections to Kaiser-Frazer's entering the aluminum industry were insuperable, the point is immaterial in evaluating the merits of the Permanente cause of action. Kaiser-Frazer had in its letter of intent a highly valuable asset. It turned over this asset to a corporation with interlocking directorates in which the Kaiser interests owned at that time 65% of the stock as opposed to 9% in Kaiser-Frazer. The directors were under an obligation to transfer this valuable property for a fair and adequate consideration and not to divert 'possible benefits into their own pockets.' Irving Trust Company v. Deutsch, supra, 73 F.2d 124. Whether Kaiser-Frazer decided to manufacture aluminum was a question for its own management but whether it sell the property of Kaiser-Frazer for an adequate consideration is the issue here. It transferred a contract covering a highly valuable plant merely for Permanente's agreement to take over the liability for the rent and upkeep of the property and to supply Kaiser-Frazer with aluminum. The contract with the Government provided that if the letter of intent was transferred to another party Kaiser-Frazer should not be liable under the lease. It follows that the assumption of liability by Permanente gave nothing to Kaiser-Frazer that it did not have. In the requirements contract the Kaiser interests secured an excellent market for Permanente aluminum at a controlled price which Kaiser-Frazer agreed to pay. In view of the complete domination of Permanente by Kaiser, this was hardly substantial compensation for the transfer. 60 But the District Court also held that the Government contract for the lease of the Trentwood plant had doubtful value. An expert witness compensated by Otis & Company testified to the contrary. Because of the speculative features of the case he declined to put a cash figure on its worth but said that a fair allowance in the transfer would have been 25% to 30% of the Permanente stock. The District Court held that this testimony was of no moment and concluded, 'Mr. Chandler's expenses as a witness were admittedly paid by Otis & Co. and his testimony did not ring true.' 61 Chandler's testimony was not disputed. Otis & Company held over ten thousand shares of Kaiser-Frazer stock and, prior to the date when the action was taken over by Pergament and London, had filed a stockholders' derivative suit in the Delaware Chancery Court questioning the Permanente transaction. Since it was proposed in the instant suit to cut off that cause of action, Otis & Company had a right to call an expert witness, to have him testify, and to compensate him in the usual way; and his testimony should have been considered by the court. Under the settlement Permanente agreed to pay $500,000, an arrangement which hardly indicates that the cause of action against Permanente has no merit. The finding that Kaiser-Frazer had no property right in Trentwood is contradicted by the voluminous documentary record in the Permanente case and the undisputed fact of the binding character of a contract embodied in an accepted letter of intent. The finding of no value is disputed not only by Chandler but also by the inherent value of the lease. The transaction leaves one with a 'definite and firm conviction that a mistake has been committed.' United States v. United States Gypsum Company, supra, 333 U.S. 395, 68 S.Ct. 542. This Permanente cause of action, as indicated by the District Court, makes the consideration for the settlement inadequate and its erroneous disposition requires that the compromise be disapproved. 62 The order of the District Court approving the settlement and dismissing the action should be vacated. The action should proceed as if no settlement had been offered or approved. 63 SIMONS, Chief Judge. 64 It is to be regretted, in view of the careful consideration given by Judge ALLEN to the long and involved record in the above case and to the numerous briefs filed therein, that Judge MILLER and I are not able to concur in the conclusion reached in the elaborate opinion originally prepared by her for the court, which must now be classified as a dissent. It becomes unnecessary, however, to review much of what has been said therein as to the origin of the litigation, the relationship of the parties and circumstances not controverted in the various transactions here challenged as being violations of a fiduciary obligation of the directors of Kaiser-Frazer Corporation to its shareholders. Nor have we any quarrel with its statement of the law which requires meticulous scrutiny of transactions between corporations having overlapping Boards of Directors and executive officers. 65 It has always been our view, however, that the principle governing responsibility for inequitable or illegal conduct is not to be applied in a vacuum but that those who complain of it must show that they were injured thereby, Columbia Gas & Electric Corporation v. United States, 6 Cir., 151 F.2d 461, 467, Glenn Coal Company v. Dickinson Fuel Company, 4 Cir., 72 F.2d 885, American Steel & Wire Company v. Wire Drawers' & Die Makers' Unions Nos. 1 and 3, C.C., 90 F.608. This leads us to the view that the crucial question in this derivative suit is whether the settlement arrived at between representatives of the stockholders and the corporate and individual defendants was, at the time and under the circumstances in which it was arrived at and considered by the District Judge, for the best interests of the Kaiser-Frazer Company. The District Judge, after thirteen weeks of trial and meticulous consideration of the evidence, so held, and, under familiar rules, we are not permitted to set aside his findings unless they are clearly wrong. In considering and in assaying the good faith and business judgment of the corporation's directors, we may not indulge in retrospective prophecy, or consider subsequent experience, for, as said in Taylor v. Standard Gas Company, 306 U.S. 307, 618, 59 S.Ct. 543, 550, 83 L.Ed. 669 (the Deep Rock case), 'It is impossible to recast Deep Rock's history and experience so as even to approximate what would be its financial condition at this day * * * .' 66 We must not forget that what was submitted to the District Court was a proposed settlement. A settlement is the result of a compromise and in effecting a compromise each of the parties expects to make some surrender, in order to prevent unprofitable litigation, effect upon its credit, the wasting of time on the part of its officers that should be devoted to the success of its enterprise and, so, compromises are generally approved by the courts. It was said in Winkelman v. General Motors, D.C., 48 F.Supp. 490, 496, 'Judicial husbandry would support such a course where all the facts are known, and the claims and the persons involved are definitely ascertainable.' Nor do we give consideration to the fact relied upon in the dissenting opinion, that by the proposed agreement some of the defendants do not contribute to the settlement. The general rule is that the release of noncontributing defendants is no reason for disapproving a compromise, Bysheim v. Miranda, Sup., 44 N.Y.S.2d 15, 30, Elmer v. Campbell, 136 Mo.App. 100, 103, 117 S.W. 622. The primary interest of the court in approving of a settlement resides in what the corporation receives in return for the grievances asserted by its stockholders in a derivative suit. 67 We attach no importance to the contention of the appellants, that the shareholders were not given adequate notice of the proposed settlement. Approximately a month before hearings began, a notice of the proposed settlement was sent to all the stockholders of Kaiser-Frazer which contained substantially its full text. Upon objection to the notice, the District Court, though satisfied that the original notice was complete, sought the consent of all parties to the wording of a new notice. The appellants refused to participate. Whereupon, the court prepared a second notice containing matters which appellants claimed should have been included in the original notice and this was sent to all stockholders, on December 20th. While the hearings were not resumed until January 17, 1950, no new stockholders thereafter appeared in opposition to the settlement, nor did any seek to intervene. In any event, it is not contended, nor does it appear, that the stockholders were not adequately represented by the present appellants, either at the hearing below or in its review on appeal. 68 We are not to be led into a discussion of the many contentions urged upon the court to the effect that the negotiators of the settlement on behalf of the corporation were not fully informed; that material information was concealed from them; that the lawyers participating occupied a dual role; or that there was no arm's length bargaining. The settlement agreement did not, and could not, become effective without the approval of the court under the mandate of Rule 23(c). The District Judge was, therefore, a third party to the compromise. There is no contention, and there could be none, that in approving the compromise important information was concealed from him or that his participation in the settlement was subject to any infirmity. Every possible aspect of opposition was fully by him explored. In any event, he ruled against the objectors upon these matters upon the consideration of substantial evidence and in the exercise of a sound judicial discretion. 69 We come then to a consideration of the probabilities of recovery by the corporation of compensation claimed in the several class suits which were ordered dismissed, and the adequacy of the consideration for the wrongs alleged to have been committed by the directors in breach of their fiduciary obligations. In so far as they are found by the court to be well based, they are, of course, binding upon us and the respondents make no complaint. 70 The District Judge gave careful consideration to all nine claims upon which possible recovery might be had, and discussed them all in his opinion, 93 F.Supp. 13. Recovery was conceded probable in three of the claims and its probability denied in the remaining six. The appellants, while asserting merit to all of the claims, give particular discussion to but five and the dissenting opinion, without prejudice to the other claims, discusses, with particularity, but three. These relate to possible recovery in the transaction with Fleetwings, the purchase of the Graham-Paige assets and the assignment of Permanente of the lease to the Trentwood plant. We first take up the claim against Permanente, since it appears to be the principal claim relied upon by the objectors. The contention with respect to it is that there is strong probability of the corporation obtaining a reassignment of the Trentwood plant or of recovering very extensive damages. 71 The dissenting opinion accurately recites some of the circumstances under which a lease was obtained from the government for the Trentwood property, but does not give the whole picture. Henry Kaiser was interested in aluminum as early as 1940, when Permanente Metals was formed, and in 1941 had prepared an estimate for an aluminum plant in the Bonneville area, and Permanente had requested information from the government in 1944 with reference to Trentwood. After the war, the government sought to dispose of Trentwood, Mead and Baton Rouge to a financially responsible bidder who would operate an integrated aluminum business in completion with Alcoa. On February 21, 1945, Husbands, its designated disposal agent, addressed a letter to fifty-seven firms engaged in the manufacture of non-ferrous metals soliciting their interest but received little encouragement, because the peace-time market for aluminum was unknown; there was a large surplus of prime and scrap and the competitive advantage of Alcoa seemed insurmountable. In August, Permanente employed Kaiser Engineers to conduct a study of the aluminum industry in contemplation of a fully integrated business with Trentwood and Mead. Husbands later wired Permanente and two hundred and twenty-five other firms to learn if they desired to purchase or lease government-owned aluminum or alumina plants. Only Permanente and Reynolds replied. Reynolds' answer was an offer to lease on terms which were not acceptable, whereupon, Reynolds refused to modify its offer, stating that the venture was a very great risk, with very substantial losses possible. In January, 1946, the Kaiser Engineers submitted the so-called Scheer Report which recommended against a venture into the aluminum industry. So did Permanente's chief engineer and a number of its directors. Pessimistic reports at the time were included in the Surplus Property Board's report to Congress, of September 21, 1945, and the Attorney General's Report, of September 11, 1945. 72 In January, 1946, Kaiser-Frazer ran into a shortage of sheet steel. While it had authorized experimental work on a number of aluminum bodies, steel was an immediate necessity and Kaiser advised that a bid by Kaiser-Frazer on Trentwood might improve the possibility of procuring steel from an established company. His suggestion to Frazer, to submit a proposal for Trentwood and the Mead plant, was turned down as to Mead. Frazer would go along with a bid on Trentwood only on the ground that it might better Kaiser-Frazer's trading position in procuring sheet steel. Price, treasurer and director, voiced similar argument to which he added that he objected to the whole venture because Kaiser-Frazer funds were barely enough for its automobile business, aluminum for cars was still experimental and the aluminum industry over-expanded. Scott, the corporation's attorney, felt that the prospectus just issued contained no indication of an intent to engage in anything not directly related to the automobile business. While the same objections were raised at a special meeting of the Board, the Trentwood lease was ratified but the company authorized to assign it to Permanente. On March 19, 1946, the directors of Permanente were induced to enter the aluminum business over the protests of three of its most important directors. Corey, Morrison and Kahn had been with Kaiser in many profitable enterprises but, being out-voted, resigned and sold their stock. 73 The so-called Browne Report was unknown to the Kaiser-Frazer directors. It could not, however, match Kaiser's optimism. Success was based on operation of Trentwood at 100% capacity,- at 60% it would show nominal profit and at 40% substantial losses. Sole reliance of objectors was the opinion of Chandler, employed by Otis, who would not put a dollar value on Trentwood at the time of assignment but estimated that consideration for it should have been 30% of Permanente stock together with a supply contract and the assumption of liability under the lease. Husbands, however, a director of RFC, president of Defense Plant Corporation, who had handled the actual negotiations for disposal of surplus properties for the Surplus Property Board, and primarily responsible for the disposition of government owned aluminum plants, deposed that it was a gamble for anyone to enter the aluminum field, that Trentwood was disadvantageously located, that the atmosphere at the close of the war was very grave as to the future, and that at the time the facilities of Alcoa and its connection with potential customers made the probabilities against the Trentwood plant being able to secure sufficient business for economic operations. 74 In the face of this gloomy prognosis, Kaiser plunged ahead and made a marked success of Permanente. This situation had faced the Kaiser-Frazer directors. It had a lease upon Trentwood for which it paid nothing. It had assumed substantial liability for rent. Its only purpose in acquiring Trentwood was as a leverage for obtaining sheet steel, with the alternative of securing aluminum, if it should prove to be practical. The latter purpose could be achieved by the conditions of its assignment. The experienced non-ferrous industries had evidenced no interest in Trentwood, and government policy was opposed to the peddling of surplus property by lessees. We are asked to find a fantastic value for the Trentwood lease based not upon what it was worth to Kaiser-Frazer, not upon market value, but upon a prophecy retroactively applied. It is novel doctrine with which we are unable to agree. 75 While the broad powers granted Kaiser-Frazer by its Charter may have permitted its manufacture of aluminum for the fabrication of automobile bodies, a venture into the general manufacture of such metal, integrated with plants other than Trentwood on the scale afterwards conducted by Permanente, poses a different problem. In the famous Ford dividend suit, Dodge v. Ford Motor Company, 204 Mich. 459, 498, 170 N.W. 668, 3 A.L.R. 113, wherein the authority of the Ford Company to build a blast furnace with undivided profits withheld from shareholders by failure to declare dividends was challenged, it was admitted that the defendant company might not undertake to smelt ore except for its own uses, and the court noted the distinction between the more limited and the broader authority. The Dodge case was a landmark in the development of the automobile industry and the entry of Kaiser-Frazer upon the general manufacture of aluminum may well have brought these very objectors, or other shareholders, into equity in an effort to prevent it. Moreover, Kaiser-Frazer never intended and never did get a right to any plants, other than Trentwood, necessary for an integrated aluminum manufacture. We perceive no possible recovery upon the claim based on the Permanente transaction. 76 Substantial recovery from Fleetwings, dominated and controlled by the Kaiser interests, is urged by the objectors as a probability because of excessive prices paid for the manufacture of deck lids and doors, which prior to the Fleetwings' transactions had been furnished by Hayes at substantially lower cost, but Hayes did not do metal finishing and was behind on its schedules. Many of the deck lids had to be returned and the record shows that complaints as to their quality were so numerous as to be characterized as 'chronic.' The court concluded that there would be no liability on the deck-lid contract and that the directors were not guilty of any breach of duty with respect to it. It requires little familiarity with mass production technique to know that every fabricated part of a motor car must be at its proper place on the assembly line in timed relation to its movement, that delay of any will stall the whole assembly process and might prove catastrophic. The finding, that there would be no probability of recovery on the deck-lid contract, is based on substantial evidence and is not clearly erroneous. 77 The court found limited recovery possible on the door contract. This was based upon the evidence, that the day the settlement agreement was signed Fleetwings had substantially reduced its price. The objectors contend for a more optimistic view of recovery but if the court was right upon the value of the consideration given for the settlement, any possible recovery on the door contract should not affect the determination of the controversy. 78 Another possibility of recovery is based upon the transactions by which Kaiser-Frazer acquired all of the automotive assets of Graham-Paige, in consideration of 750,000 shares of Kaiser-Frazer stock at $6.50 per share and the assumption of the liabilities of Graham-Paige. Kaiser-Frazer received the Graham-Paige automotive assets, which included machinery, equipment, inventory, trade-marks and good will, cash of $3,000,000, its working capital of $1,250,000, and intangible assets stated at $2,714.602. The alleged cause of action is based on the fact that the stock was assigned at $6.50 per share at a time when its market value was $1.12 1/2 per share with a book value of $10.00 per share; that the intangible assets had no value but was merely a balancing item, and that the $3,000,000 cash had to be borrowed from the bank by a guaranty of Henry Kaiser and Joe Frazer in the security of the Kaiser shares transferred to Graham-Paige, with the right to vote this stock in Kaiser and Frazer. The appellants argue that the purpose of this transaction was to secure to Henry Kaiser voting control over the additional 9% of Kaiser-Frazer stock without any expenditure on his part. The District Judge found that the undervaluation of the stock might result in a recovery for the stockholders with damages limited, however, to the effect on the market of putting 750,000 shares for sale at one time plus the cost of the underwriting, which might approximate $1.50 per share, and that the defendants, upon whom the burden of proof rested, failed to prove that the transaction was fair and equitable. Blockage for purposes of evaluation of stock has been judicially approved, Groff v. Munford, 2 Cir., 150 F.2d 825. The court also found that while value of the intangibles could not specifically be determined, there was substantial value in the various items included in this category. It is common knowledge that an automobile manufacturer is only as good as his dealer and distributor organization. The elimination of Graham-Paige from the use of this organization and the acquisition of its control solely by Kaiser-Frazer, was, undoubtedly, an asset of substantial value. It might, of course, fall to Kaiser-Frazer should Graham-Paige go out of the automobile business, but Graham-Paige was still in it. It had had in the past a successful career as an automobile manufacturer and its good will had value. While it may not itself have been materially dependent upon patents, there was evidence that one of its patents, the hydraulic brake, had saved Kaiser-Frazer approximately $300,000 and that the possession of its patents was a protection against suits by outsiders. While the Frazer design, upon which Kaiser-Frazer very largely depended, had previously been acquired by it, there was still open a question, whether Graham-Paige could revoke its grant thereto. The elimination of the legal problems arising out of joint operation was of substantial value, in the event of the failure of Graham-Paige. Its advertising, engineering and pre-production expenses had cost Graham-Paige over $800,000. They gave value to these assets. We are not convinced that the amount assigned to the intangibles was so clearly in excess of their value that recovery could be had in any amount determinative of this controversy. 79 The court found no merit in the cause of action based upon manipulation and stabilization of the Kaiser-Frazer stock, in preparation for a new issue to the public of 1,500,000 shares of Kaiser-Frazer stock through three underwriters, including Otis & Company. The proposed issue was to obtain needed funds to expand production to 1500 cars per day, and for plant additions and improvements. Kaiser-Frazer was advised by Eaton, of Otis & Company, that this could be done by stabilizing the market at $13.50 per share while it was expected that the new stock would be sold at $13.00 per share. This claim is not discussed in the dissenting opinion, but it must be considered in view of the events that have happened since the case was tried and reviewed. Kaiser-Frazer Corporation was advised by Eaton that the stock could be stabilized at $13.50 by the purchase of not more than a small number of shares and the S.E.C., upon being consulted, saw no violation of Sec. 9(a)(2) of the Securities Exchange Act, 15 U.S.C.A. § 78i(a)(2). Since then, it has been brought to our attention that under criticism of the S.E.C. by a subcommittee of the Committee on Interstate and Foreign Commerce, 82d Congress, dated September 5, 1952, the S.E.C. states categorically that the Commission and its staff were imposed upon and misled with respect to the Kaiser-Frazer registration statement, so that it is now contended by the appellants that the registration by Kaiser-Frazer of its proposed new stock issue was illegal and that the directors of the corporation are liable to it for the entire sum expended in the purchase of 186,000 shares of its stock in order to stabilize it at $13.50 per share, less their salvage value, and that reliance upon the original approval of the S.E.C. colored all the other findings made by the District Judge in the case. With the second contention, we are unable to agree. The court made detailed and exhaustive study of the circumstances bearing upon each of the alleged causes of action. There is nothing in the record to show that, with respect to them, it was influenced by the approval of the S.E.C., for approval by S.E.C. had no bearing on any of them. As to the first contention, it must be noted that the transaction is devoid of any conflict of interest between overlapping directors. Otis & Company, and the other underwriters were not represented upon the Board of Kaiser-Frazer. 80 Whatever may have been the view of the S.E.C., reached under the promptings of the Congressional Subcommittee, that the report of Kaiser-Frazer's earnings for the month of December, 1947, was misleading, it must be noted that it was arrived at under criticism and without a hearing accorded the appellees. There has been no judicial finding, that a stabilization program, in and of itself, is violative of Sec. 9(a)(2) of the Securities Exchange Act of 1934. The District Court for the Southern District of New York, in its unreported opinion, had held there was no violation. The opinion of Judge Hand, Kaiser-Frazer v. Otis & Company, 2 Cir., 195 F.2d 838, April 7, 1952, reversing the judgment of over $3,000,000 against Otis, reversed not on the ground that stabilization is illegal but on the fact that the table summarizing earnings failed to make full disclosure therein of all the facts and, so, constituted a breach of the contract with Otis, that any sale to the public by means of a misleading prospectus would have been a violation of the Securities Act of 1933, 15 U.S.C.A. § 77l(2). He held that the prospectus formed an integral part of the contract and the public sale of the stock by the underwriters could only have been made in reliance upon it, even though concededly the profits for the year, as a whole, were substantially unaffected by the overstatement of December, 1947, earnings. It must be noted, however, that none of the new shares were delivered and the few that were sold were sold unconditionally. The whole project fell through, Final Report of Securities & Exchange Commission's Subcommittee, (1952 p. 66). If bad faith was involved in the registration statement, the Act provides the Commission with adequate corrective powers. The primary obligation of the S.E.C. is to protect investors and none were injured. 81 The purchase by a corporation of its own shares is not, in itself, illegal. The stabilization of the market for its shares is not in and of itself illegal. Assuming that the purchase of its shares at $13.50 in preparation for an issue of new stock at $13.00 was improvident, some recovery may be foreseen. The immediate injury was measurable by the difference between what was paid for the old shares and the selling price of the new. Subsequently, the market substantially receded. It is important to forecast the ultimate injury to the corporation and its stockholders. There may be no salvage value for the shares when trial is had upon this claim, or there may then be no loss. While we think that the court was in error in assigning no recovery upon this transaction, the amount of recovery is so uncertain that the claim asserted by the objectors can have no substantial effect upon the fairness of the compromise. 82 We come then to an appraisal of the consideration for the settlement and here we must remember that this is not a case for setting aside an executed agreement entered into through breach of fiduciary obligation. The settlement agreement was of no effect without the approval of the court and in passing upon its fairness every angle of the controversy was fairly explored with findings made upon evidence which the court in the exercise of its judicial discretion had an opportunity to evaluate. The consideration found to be adequate to sustain the settlement included three elements: the payment by the Kaiser interests of $500,000 in cash, the purchase of the presses belonging to Kaiser-Frazer but in the possession of Fleetwings at their depreciated book value, and the guaranty by Kaiser of $15,000,000 of a RFC loan of $44,000,000 with a deposit by Kaiser of $10,000,000 of collateral as security. 83 As to the $500,000 payment, there can be no controversy as to its constituting a valuable consideration. As to the presses, the facts are that they were supplied to Fleetwings under retention of title at a cost of $950,750. The settlement agreement provided for Fleetwings to pay Kaizer-Frazer $817,503 which was the depreciated book value of the presses. They had a recoverable value at the time of $560,000. It is doubtful that if they had been recovered by Kaiser-Frazer, at a later date, they would have had such value. It is quite true, of course, that Fleetwings was already negotiating with the Metropolitan Life Insurance Company for a loan under which Fleetwings was required to file a chattel mortgage covering the presses. It is argued that there was an option under which Kaiser-Frazer was obligated to buy back the presses if Fleetwings so desired but this would have been at a further depreciated value at a later time. It is not true, however, that the agreement was of no benefit to Kaiser-Frazer. As we shall presently show, in viewing another aspect of the consideration, Kaiser-Frazer was in extremis. In that situation it was receiving nearly $900,000 in addition to the $500,000, an important benefit to it at the time, notwithstanding a hazard in an option which might never be exercised, or, if exercised, it would be at a time when it was better able to repurchase. Its immediate need of funds was paramount. 84 We come finally to an evaluation of the Kaiser guaranty in the circumstances disclosed by the record. At the time of the settlement, October 25, 1949, Kaiser-Frazer was in desperate financial difficulties. Its production had ceased, its labor force was laid off, its effort to raise money by stock issue had proved futile, the sellers' market was gone and the corporation in desperate need of money for new models and the tools and dies therefor. It could not continue operations without new financing. These facts were undisputed. The obtaining of the RFC loan was vital to its continuance. It owed the Mellon and Giannini banks $16,000,000, on a short-term loan, already in default. By its terms, the right of subrogation was immediate. It is true that the Kaiser interests had guaranteed this loan and were greatly restricted in their operations by its terms yet the possibility of loss to them was negligible and there were sufficient assets for them to recoup if Kaiser-Frazer were forced into liquidation. On the other hand, the proposed RFC loan was for a ten-year period, the first payment thereon not due until July 1, 1951; that it could not be obtained without the guaranty, and the guaranty could not be had unless the stockholders' suits were settled. The court held that the loan was of tremendous value, that it meant the difference between failure and a fighting chance, that continued litigation with its uncertain results, with its cost in time, money and reputation threatened its very existence. There was in evidence a letter from an underwriting firm which represented Lloyds of London evaluating the Kaiser guaranty, expressing an opinion that the fair and reasonable premium for writing a bond of this character by anyone willing to undertake such an obligation would be not less than 2.5% per annum, which over the ten year period of the loan would aggregate not less than $3,750,000. It did not suggest that Lloyds would give such bond. Bailey, the senior partner in a firm of reputable accountants, testified that the value of the guaranty was one-fifth to one-fourth of the common stock of Kaiser-Frazer, which would amount to approximately $20,000,000. Bailey was sworn as an expert and vigorously cross examined. The District Judge was not obliged to accept at face value either estimate of the value of the guaranty but it was not an abuse of discretion nor a demonstration of clear error, under all of the evidence, for the court to conclude that the RFC loan meant the difference between continued existence and a liquidation that would have been a complete loss to the stockholders. Excluding recovery on the transaction with Permanente, and other claims, we are not convinced that the guaranty of the Kaisers was not in itself an adequate consideration for the settlement. 85 We are forced to reject the argument made by the appellants, based upon the subsequent history of Kaiser-Frazer, that the corporation would have been better off if it had not sought the RFC loan, just as we rejected a similar argument in Columbia Gas, Etc. v. United States, supra. There, it was contended that the American Fuel System, which had been prevented access to wider markets in the building of a pipeline to Detroit, foiled by inequitable conduct of Columbia, may have failed in its project even if Columbia had kept its hands off. In answer, we said (151 F.2d 469): 'The hope that the debtors, their public creditors and the Syndicate may have had in the success of the Detroit project, was one they had a right to entertain. If realized, American Fuel would not have been the first company saved from disaster by improved management and access to an expanded market.' The chance to live, and not Trentwood, was Kaiser-Frazer's opportunity, even though it should ultimately fail,- and it may not fail. 86 Giving full consideration to all the circumstances disclosed by the voluminous record in the case, the many arguments presented orally and in the briefs, and the post-hearing communications to the court, we are unable to conclude that the District Judge was clearly erroneous in his major findings, or abused his discretion in his ultimate conclusions. 87 Affirmed. 1 As stated in the Kaiser-Frazer Corporation Proxy Statement May 18, 1948, which is typical: Henry J. Kaiser Company, Kaiser Engineers, Inc. and The Permanente Metals Corporation, owned 214,000, 77,500, 77,500 and 100,000 shares, respectively. Henry J. Kaiser Company owns 40% of the outstanding capital stock of Kaiser Engineers, Inc. Henry J. Kaiser owns 50% of the outstanding capital stock, carrying 66 2/3% of the voting rights, of Henry J. Kaiser Company and 6% of the outstanding capital stock of The Kaiser Company. He is an officer and a director of each of these two companies and of The Permanente Metals Corporation and a director of Kaiser Engineers, Inc. An aggregate of approximately 65% of the outstanding capital stock of The Permanente Metals Corporation is owned by Henry J. Kaiser Company, The Kaiser Company, and Kaiser Engineers, Inc. Edgar F. Kaiser owns 25% of the outstanding capital stock of Henry J. Kaiser Company and 20% of the outstanding capital stock of The Kaiser Company. He is an officer of Henry J. Kaiser Company and of Kaiser Engineers, Inc. and an officer and director of The Kaiser Company. E. E. Trefethen, Jr., G. G. Sherwood and Clay P. Bedford are directors and/or officers of Kaiser Engineers, Inc., and each owns 5% of the outstanding capital stock thereof. E. E. Trefethen, Jr., G. G. Sherwood and Clay P. Bedford are directors and/or officers of The Kaiser Company, and each owns 8 1/6% of the outstanding capital stock thereof. E. E. Trefethen, Jr. and G. G. Sherwood are directors and officers of The Permanente Metals Corporation. G. G. Sherwood is Trustee of a trust which holds 25% of the outstanding stock of Henry J. Kaiser Company and 20% of the outstanding capital stock of The Kaiser Company While there was not an identity of directors between Graham-Paige and Kaiser-Frazer, there was a substantial identity of important officers. Joseph Frazer was president both of Graham-Paige and Kaiser-Frazer and five other defendants held office in both corporations.	{ "pile_set_name": "FreeLaw" }
127 F.3d 1398 38 Collier Bankr.Cas.2d 1839, 31 Bankr.Ct.Dec. 917,Bankr. L. Rep. P 77,611,11 Fla. L. Weekly Fed. C 778 In re HILLSBOROUGH HOLDINGS CORP., et al., Debtors.STROOCK & STROOCK & LAVAN; Kaye, Scholer, Fierman, Hayes &Handler, Plaintiffs-Appellants,v.HILLSBOROUGH HOLDINGS CORP., et al., Defendants-Appellees. No. 96-2605. United States Court of Appeals,Eleventh Circuit. Nov. 18, 1997. David C. Pollack, Stroock & Stroock & Lavan, Miami, FL, Andrew A. Kress, Kaye, Scholer, Fierman, Hays & Handler, LLP, New York City, for Plaintiffs-Appellants. Scott A. Stichter, Tampa, FL, for Defendants-Appellees. Appeals from the United States District Court for the Middle District of Florida. Before CARNES, Circuit Judge, and CLARK and CAMPBELL, Senior Circuit Judges. CAMPBELL, Senior Circuit Judge: 1 This case concerns a bankruptcy court's refusal under 11 U.S.C. § 330(a)(2) to reimburse two law firms for certain categories of expenses the firms incurred in their work on a bankruptcy case because the court believed that the expenses of these generic types were part of a firm's "overhead" and were already built into its hourly billing rates. I. Background 2 Hillsborough Holdings Corporation and thirty-one of its affiliates filed for bankruptcy under Chapter 11 of the United States Bankruptcy Code on December 27, 1989. Kaye, Scholer, Fierman, Hays & Handler, L.L.P. ("Kaye, Scholer") was retained as co-counsel to the Debtors, and Stroock & Stroock & Lavan ("Stroock") was retained as counsel to the Official Bondholders Committee. Both law firms were thus authorized to receive reasonable compensation for the actual, necessary services they rendered and to reimbursement for actual, necessary expenses they incurred in providing those services under 11 U.S.C. § 330(a).1 3 The Bankruptcy Court entered its first order on interim fee applications ("the first order") on October 5, 1990. In that order, the court declared that several categories of expenses were attributable to "overhead" and therefore non-compensable because they were already "built into the Applicant's hourly billing rate." The court described these categories as: postage; secretarial charges, including overtime charges; word processing; clerical tasks; local travel expenses; meals; express mail; messenger delivery expenses; copy charges; laundry; office supplies; typesetting; and computer research charges. 4 Over the next several years, the court periodically issued further orders on interim fee applications. In these orders, the court denied without discussion many of the firms' requests for reimbursement of their expenses, referring back to the principles set forth in the first order. In each order, the court reserved jurisdiction to reconsider the fee applications at the close of the case. 5 When the case concluded, the law firms in their final fee applications asked the court to reconsider all of the requests for expense reimbursements it had previously denied. They argued that their employment of a "user fee" billing system, which charges certain expenses directly to the particular client for whom they were identifiably incurred, and which excludes those separate expenses when setting the hourly billing rate, precluded the court from holding that such individually charged expenses constituted non-compensable "overhead." 6 On October 31, 1995, the court denied this request. While recognizing that the law firms' efforts were often "herculean," the court stated: 7 [T]his Court is of the opinion, and repeatedly stated this opinion on numerous occasions that the awards made during the pendency of this case were a determination of the reasonable fees to be allowed for the tasks and services provided to the Debtors and the Debtors' estates. For this reason, this Court is satisfied that the reconsideration of the fees and expenses previously disallowed by the Court is inappropriate. 8 On the same day, the bankruptcy court also issued an order denying reimbursement for a portion of Stroock's expenses from Stroock's final fee application. 9 Over the course of the case, Stroock requested reimbursement for $787,791.43 in expenses of which $341,953.01 (43%) was disallowed, and Kaye, Scholer requested reimbursement for $679,711.91 in expenses of which $514,636.97 (76%) was disallowed. 10 The firms appealed these decisions to the district court, arguing principally that the disallowed expenses were not part of their "overhead" and were of a type ordinarily billed separately to their non-bankruptcy clients. The district court affirmed the bankruptcy court's rulings. The firms then brought this appeal. II. Discussion 11 "We note initially that an award of attorneys' fees in a bankruptcy proceeding will be reversed only if the court abused its discretion." In re Red Carpet Corp. of Panama City Beach, 902 F.2d 883, 890 (11th Cir.1990). "An abuse of discretion occurs if the judge fails to apply the proper legal standard or to follow proper procedures in making the determination, or bases an award upon findings of fact that are clearly erroneous." Id. 12 The Bankruptcy Code provides that the bankruptcy court may award to the debtor's attorney and professionals employed by an appointed committee under 11 U.S.C. § 1103 not only reasonable compensation for actual, necessary services rendered, but, "reimbursement for actual, necessary expenses." 11 U.S.C. § 330(a). See note 1, supra. 13 Early in the present case, the bankruptcy judge entered an order advising counsel that he would not reimburse certain listed broad categories of expenses, supra, p.3. The judge stated that such categories were attributable to "overhead" and therefore already "built into the applicant's hourly billing rate." The judge's declaration was made before most of the expense items in dispute were incurred and was plainly not based on findings as to the individual characteristics of expense items billed in this case. Rather it seems to have reflected the court's more general view that attorneys' claimed expenses falling within any of the listed categories must be deemed non-reimbursable because they are, in effect, not true "expenses," i.e. they are by definition "overhead" and so built (apparently by their very nature) into the applicant's hourly billing rate. There is no evidence or finding of record that the present attorneys had actually taken these classes of expenses into account when determining the hourly billing rates they charged. To the contrary, the attorneys profess to bill on a "user fee" basis, under which the hourly rate is set on the assumption that items of the classes prohibited by the court will, in many instances, be separately billed as expenses. Hence the court's prior order, made independently of the specifics of the appellants' billing methods, appears to reflect a legal conclusion that expenses of certain types must inevitably be presumed to be "overhead" rather than reimbursable "expenses" under 11 U.S.C. § 330(a)(2). 14 We emphasize the last point because our review standard varies depending upon whether we are examining a legal ruling or a fact-based issue entrusted to the bankruptcy judge's broad discretion. Most fees issues are undoubtedly of the latter type. To the extent a bankruptcy judge were to find that claimed expenses were not actually incurred, did not sufficiently relate to the case, were unnecessary, or were excessive, we would overturn his determination only if convinced the findings were "clearly erroneous"--a very high standard, and one we would rarely be likely to find, especially in a fees situation. 15 Our review standard is different, however, when dealing with legal rulings. The controlling fees statute allows a court to award not only reimbursable compensation for attorney's services but--in a separate clause--allows "reimbursement for actual, necessary expenses." Here the bankruptcy judge declined in advance to reimburse many described categories of expenses, apparently because of his belief that the categories he listed could never, because of their very nature, be true "expenses" (or "actual, necessary expenses") within 11 U.S.C. § 330(a)(2). A ruling like this, not tied to an evaluation of the particular facts of the case but based on a general interpretation of the meaning of the word "expenses" as uniformly applied in all cases, is a legal ruling.2 16 In saying this, we do not mean to suggest that appellate courts should be eager to fly-speck the niceties of fee awards. If, for example, the bankruptcy judge, upon analysis of the methodology used by these attorneys to bill computer research expenses, had determined that their calculus did not fairly mirror the actual costs of such research in the instant case, we would review that determination with marked deference to the bankruptcy court. Similarly, if the judge, on some reasonable basis, found that certain expenses claimed were items not ordinarily viewed by the bar as billable expenses, we would examine the ruling with considerable, if not unlimited, deference. 17 Here, however the bankruptcy judge prohibited reimbursement of whole categories of expenses, ruling that none of them were allowable, being presumptively "overhead" and built into the hourly billing rate. An assertion at this level of generality poses a legal issue. If we were to refuse to review such a ruling, we would leave attorneys in a situation where many items ruled nonreimbursable as expenses in one court might be deemed perfectly reimbursable in another. We do not think that the meaning of the statutory provision for reimbursement of "actual, necessary expenses" can fluctuate between such extremes. 18 Reviewing the merits of the ruling, we do not agree with the bankruptcy judge that reimbursable expenses within § 330(a)(2) are limited in the manner suggested in his first order. We accept that true "overhead" costs--the ordinary operating costs of a firm, such as rent, heat, and the like, that cannot readily be attributed to a particular case--are not separately compensable as reimbursable expenses. See In re Mulberry Phosphates, Inc. ("Mulberry II"), 169 B.R. 750, 751 (M.D.Fla.1994); In re Glasstream Boats, Inc., 146 B.R. 784, 785 (Bankr.M.D.Ga.1992); In re New Hampshire Elec. Coop., Inc., 146 B.R. 890, 892 (Bankr.D.N.H.1992); In re Lifschultz Fast Freight, Inc., 140 B.R. 482, 489 (Bankr.N.D.Ill.1992); 3 Collier on Bankruptcy p 330.05, at 330-65 (Lawrence P. King et al., eds., 15th ed.1997). 19 We also are aware that courts have differed over whether expenses such as those prohibited here are or are not sufficiently client-specific to avoid the "overhead" label. While a number of district and bankruptcy courts have declared that items such as secretarial overtime, postage, xeroxing charges, and computer research can adequately be linked to a law firm's representation of a particular client and so are compensable, others have held, like the judge here, that these items are non-compensable "overhead." Compare In re Mulberry Phosphates, Inc. ("Mulberry I"), 151 B.R. 948, 951 (M.D.Fla.1992) ( "Disbursements such as clerical expenses, postage and express mail services, local travel expenses and computer time do not constitute overhead in this case because they are all attributable to an individual client through the user fee billing system.")3 and In re National Paragon Corp., 76 B.R. 73, 74 (E.D.Pa.1987) (holding that the automatic exclusion of xeroxing costs, postage and travel expenses as "overhead" was an abuse of discretion) and In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 584-85 (Bankr.D.Utah 1985) (deferring to the billing practice of the profession in allowing compensation for meals, word processing, messenger service, taxi fares, parking, xeroxing, postage, express mail, and computer research costs), with In re New Hampshire Elec., 146 B.R. at 903 (concluding that expenses associated with faxing, word processing, document production and computer-assisted legal research are all non-compensable "overhead") and In re Convent Guardian Corp., 103 B.R. 937, 940 (Bankr.N.D.Ill.1989) (holding that, absent extraordinary circumstances, expenses associated with secretarial overtime, postage, messenger services, and express mail are all non-compensable "overhead") and In re Citizens Mortgage Inv. Trust, 37 B.R. 813, 821 (Bankr.D.Mass.1984) (ruling that "overtime to employees, rent, express charges, ordinary postage, and routine copying" are all non-compensable "overhead"). 20 We think that the legislative history of the current bankruptcy statute is inconsistent with the narrow reading of § 330(a)(2) adopted below. Congress has recently indicated a desire to promote the same billing practices in bankruptcy cases as in other branches of legal practice. While "user billing" is certainly not the only billing practice employed today, its use is widespread. A good many reputable firms bill as expenses many of the items rejected in advance by the bankruptcy judge here. Moreover, as all or most of the prohibited items can be readily calculated in reference to work done in a specific case, it is far from obvious that they are, by their nature, non-billable overhead. 21 Before 1978, courts applied "the spirit of economy" as a factor to be weighed in awarding attorneys' fees in bankruptcy cases. See In the Matter of First Colonial Corp. of Am., 544 F.2d 1291, 1299 (5th Cir.), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977); 3 Collier on Bankruptcy, p 330.04[a] (Lawrence P. King, et al., eds., 15th ed.1997). Congress rejected this factor when it enacted the Bankruptcy Reform Act of 1978. Congress concluded that taking economy into account interfered too much with the policy of encouraging skilled professionals to participate in bankruptcy cases: 22 Attorneys' fees in bankruptcy cases can be quite large and should be closely examined by the court. However bankruptcy legal services are entitled to command the same competency of counsel as other cases. In that light, the policy of this section is to compensate attorneys and other professionals serving in a case under title 11 at the same rate as the attorney or other professional would be compensated for performing comparable services other than in a case under title 11.... Notions of economy of the estate in fixing fees are outdated and have no place in a bankruptcy code. 23 124 Cong. Rec. 33,994 (daily ed. October 5, 1978) (statement of Sen. DeConcini), reprinted in 1978 U.S.C.C.A.N. 6505, 6511; see also In re Busy Beaver Bldg. Ctrs., Inc., 19 F.3d 833, 850 (3d Cir.1994) ("Congress determined, it appears, that on average the gain to the estate of employing able, experienced, expert counsel would outweigh the expense to the estate of doing so, and that unless the estate paid competitive sums it could not retain such counsel on a regular basis."); 3 Collier on Bankruptcy, p 330.04 [b] (Lawrence P. King, et al., eds., 15th ed. 1997) ("The economy factor was abandoned under the Bankruptcy Code in favor of the new policy that attorneys engaged in bankruptcy cases should receive compensation in parity with that received by attorneys performing services in comparable situations."). 24 The policy of comparable compensation is specifically written into § 330(a)(1), which expressly includes "the cost of comparable services other than in a case under this title" as a factor to be considered in establishing the compensation of attorneys working on a bankruptcy case. 11 U.S.C. § 330(a)(1). 25 To be sure, Section 330(a)(2), which provides for the reimbursement of bankruptcy attorneys' actual, necessary expenses, does not make explicit reference to the cost of comparable services outside of bankruptcy as does (a)(1). Nor does (a)(2) supply criteria as to how to differentiate expenses from non-reimbursable "overhead." But if the cost of comparable services is a relevant factor in setting compensation for services under (a)(1), it would logically seem also to be a relevant factor in determining what categories to treat as reimburseable expenses under (a)(2). In many cases, the amount of the hourly fees charged by lawyers and their firms for services may be linked to the categories of expenses that they bill separately. Professionals who make a practice of billing separately for such items as computer research costs and secretarial overtime may well charge lower hourly fees for their services than will professionals who absorb such costs as part of their "overhead." See generally In the Matter of D'Lites of America, Inc., 92 B.R. 554, 556 (Bankr.N.D.Ga.1988) (recognizing the relationship between a law firm's billing rate and the categories of expenses charged separately); In re Kreidle, 85 B.R. 573, 576 (Bankr.D.Colo.1988) (same). We think that if certain categories of expenses are commonly billed by practitioners in non-bankruptcy practice, they should not be arbitrarily excluded under (a)(2). 26 In the present case, the bankruptcy court gave no reason for its refusal to reimburse the listed categories of expenses other than its unexplained conclusion they are "overhead" and built into the applicants' hourly billing rate. As already explained, many, if not all, of the excluded expense categories seem rationally related to services performed for the individual clients in a particular case. The court's announced assumption that the listed categories could not be viewed as anything but non-compensable "overhead" built into the applicants' billing rate is unsupported by evidence of the billing practices in non-bankruptcy matters of comparable law firms or by reference to any other professional source. Nor, as we have previously noted, did the court find as a fact (nor is there any record evidence to support a finding) that the hourly billing rates charged in this case were constructed so as to include the categories of expenses at issue. The ruling seems to have been based rather on the judge's personal belief that it is unseemly for items of this nature to be regarded as anything but unbillable "overhead." On this record, we cannot endorse the theory that the listed items necessarily belong in a non-compensable "overhead" category. Most, perhaps all, of these items will vary from client to client; in our experience, they are often billed separately as expenses by reputable lawyers and law firms. We doubt, therefore, that they can be held to be "overhead" in some invariable, absolute legal sense. This is not to deny the court's authority to exclude any of the expenses billed here if found to be wrongly calculated, overstated, or, in some way, not "actual, necessary expenses." Nor would we rule out the court's authority to adjust the Appellants' hourly billing charges if found excessive in light of the claimed expenses. But no specific findings of this nature were made. 27 The Third Circuit has held, and we agree, that the best approach to achieving the goal of full--but not excessive--compensation "is to rely on the market, subject to the modification that the court will, in practical terms, act as a surrogate for the estate, reviewing the fee application much as a sophisticated non-bankruptcy client would review a legal bill." In re Busy Beaver, 19 F.3d at 848. This is not to say that a bankruptcy court must always move in lockstep with the billing structure a law firm employs. Obviously it is a court's duty to reject a flawed, excessive or illegal billing methodology, and there may be special reasons articulated by a court for disallowing even cognizable expenses in light of the facts of a particular case. The court has considerable discretion over the amounts awarded by ways of fees and expenses; the statute provides that the court "may award" fees and expenses, indicating a broad discretionary grant. But the court may not arbitrarily exclude by fiat whole categories of otherwise reimburseable expenses from the coverage of § 330(a)(2). 28 As the court erred in stating its rejection of these categories of expenses as a rule of law concerning what was necessarily included within "overhead," we remand for reconsideration of Appellants' compensation and expenses. On remand, the bankruptcy court should recognize that the firms' hourly rates were established on a "user fee" basis and determine a total compensation that fairly reimburses, among other things, the firms' actual and necessary expenses as provided in § 330(a)(2). The compensation should, moreover, fit within the above-discussed concept of "comparable compensation." The bankruptcy court is directed to make findings, in so doing, from which it will be possible for the district court and ourselves, upon review, to ascertain the various components of the total compensation that is awarded. 29 VACATED and REMANDED. CARNES, Circuit Judge, dissenting: 30 As the majority correctly notes, the Bankruptcy Code provides that lawyers for the debtor and professionals employed by committees pursuant to 11 U.S.C. § 1103 are entitled to be compensated at a reasonable rate for actual, necessary services rendered, and they are entitled to be reimbursed for actual, necessary expenses incurred. See 11 U.S.C. § 330(a)(1). We allow the bankruptcy court to exercise discretion in arriving at the amounts to be paid, for obvious reasons. The bankruptcy court is the court that is most familiar with the prevailing market rates for bankruptcy legal work, the relative difficulty of the case before it, the quality of the attorneys' representation, the efforts the attorneys have made to salvage the bankruptcy estate, and other factors that should be weighed in deciding the reasonableness of fees as well as the necessity and reasonableness of expenses. Because bankruptcy courts have in-depth knowledge about and extensive experience with these matters, and we do not, we review their fee and expense awards only for an abuse of discretion. See, e.g., In re Prince, 40 F.3d 356, 359 (11th Cir.1994). We should be, and usually are, reluctant to second guess bankruptcy courts on such matters. 31 However, the majority second guesses the bankruptcy court in this case about its method of ensuring a reasonable total payment for services rendered and expenses incurred by counsel. I would give bankruptcy courts more latitude about such matters. If a bankruptcy court, based upon its superior knowledge about and experience with such matters chooses to utilize a payment formula that estimates an expected average of expenses normally incurred in such work and reflects that amount in a suitably inclusive hourly fee rate, we should allow it to do so. Likewise, if a bankruptcy court chooses to skinny down the hourly fee rate and separately reimburse expenses that would in most other contexts be included in a larger hourly fee, it should be given the leeway to do that, too. The same is true of any compensation and reimbursement approaches that fall between those two. The Bankruptcy Code entrusts bankruptcy courts with the principal responsibility for carrying out its provisions in the thousands of cases filed in those courts. Wisely, the Code does not discourage bankruptcy courts from fully exercising their judgment and discretion about such matters as compensation and reimbursement methods for legal services. Neither should we. 32 Bankruptcy courts are not required to accept law firms' explanations of their fees and expenses as the gospel truth. They often recognize that hourly fee rates are calculated with typical expenses in mind, including many of the expenses the separate reimbursement of which were disallowed by the bankruptcy court in this case. See, e.g., In re New Hampshire Elec. Coop., Inc., 146 B.R. 890, 903 (Bankr.D.N.H.1992) (holding that photocopying, computer research, and other expenses are compensated in fee award except when unusually high). As one bankruptcy court has explained: 33 "Overhead expenses" have been held to include, but are not limited to, library expense, rent and utility expense, secretarial and clerical expense, office supply expense, telephone expense, and the local commuting and meal expenses of individual employees. See In re Global International Airways Corp., 38 B.R. 440, 444 (Bankr.W.D.Mo.1984) (disallowed secretarial expense claim); In re Rego Crescent Corp., 37 B.R. 1000, 1009, 1012, 1018 (Bankr.E.D.N.Y.1984) (disallowed request for allowance of local transportation, library, secretarial and in-town meal expense); In re Horn & Hardart Baking Co., 30 B.R. 938, 942 (Bankr.E.D.Pa.1983) (disallowed request for allowance of clerical, support staff expense). These expenses have a common characteristic in that they are incurred by the firm on a day-to-day basis, no matter whom it represents. A law firm or accounting firm will require, for example, a permanent secretarial and clerical staff. The traditional way to spread these kinds of daily expenses among all the firm's clients is for the firm to structure its hourly rates to take such expenses into consideration. Where a firm seeks to charge a single client, particularly one in bankruptcy, for expenses which are treated as overhead expenses by most other law firms, the natural inclination of the Court is to consider 1) that the firm's hourly rates are unreasonably high; and 2) that the firm is attempting to charge the debtors for expenses actually incurred in the service of other clients. Fee applicants are hereby cautioned against the practice of including in their application requests for reimbursement of expenses, which should be absorbed as part of the firm's overhead. 34 In re Thacker, 48 B.R. 161, 164 (Bankr.N.D.Ill.1985). 35 Our role should be limited to a review of the overall amount awarded, a review designed to ensure that the total figure is fair--not excessive, but fair--whatever the method used. Instead of taking that broad view, the majority apparently requires that bankruptcy courts yield to whatever billing method or methods the firms appearing before it prefer to employ. Acknowledging that the "user billing" method of tracking expenses "is certainly not the only billing practice employed today," the majority nonetheless mandates that the bankruptcy court treat that method as though it is the only one, if the law firms prefer to use it. Of course, if there are three or four firms seeking reimbursement of expenses in a given case, and each uses a different billing method, under the majority's "law firm dictates" doctrine the bankruptcy court will be required to approve and accommodate three or four different expense billing methods. 36 While purporting to recognize that the bankruptcy courts have some discretion in such matters, in fact the majority's "law firm dictates" doctrine gives all of the discretion about billing methods to the law firms. The bankruptcy courts are left with none. The majority has it backwards. A bankruptcy court ought to be allowed to insist upon any fair billing method it chooses for the case, absent some strong reason to believe that the firm's particular method is the only appropriate one. Otherwise, the law firm tail will wag the bankruptcy dog. Bankruptcy courts do not exist to serve law firms, and we ought not make the judicial will bend to the desires of lawyers, especially not in areas where lawyers have a strong financial interest at stake. 37 About court prerogatives, look at it this way. Suppose some law firm sent us an appellate brief that was out of kilter with our rules. Accompanying the uniquely arranged brief was a letter explaining that the firm had found it most efficient to do all of its communications that way and would insist upon communicating in that manner with us. Just as we would not be deferential to the law firm's method in that circumstance, we should not require the bankruptcy court to be in this circumstance. 38 According to the Statistics Division of the Administrative Office of the United States Courts, as of June 30, 1997, over 423 chapter 11 cases were assigned to the bankruptcy judge who handled this case. Faced with that case load, a bankruptcy judge should not be required to familiarize himself with and ride herd over 423 different billing methods, or a half dozen, or even two. A good reason for not adopting a law firm's billing method in a case is that not every law firm uses the identical billing method with the same definition of overhead versus separate expenses. 39 After reviewing the record, I believe that the bankruptcy court did comply with the requirements in § 330(a)(1), and that its total awards were not abuses of discretion. I disagree with the way the majority interprets the bankruptcy court's decisions in this case. In its first "Order on Interim Fee Applications," issued on October 5, 1990, near the beginning of the case, the bankruptcy court decided both: (1) the hourly rate that would constitute a reasonable one for the law firms' legal work, and (2) which types of expenses were not included in that hourly rate and would be awarded separately. The bankruptcy court quite generously determined that a blended hourly rate of $229 for Stroock & Stroock & Lavan, and a blended hourly rate of $292 for Kaye, Scholer would be reasonable. It also determined in that very same interim fee order that, for the purposes of pending and future requests for compensation, categories of expenses "which are properly attributable to overhead can not be reimbursed because they are built into Applicant's hourly billing rate and should not be borne by the Debtors." The court remarked, "This Court will not be placed in a position to be chastised by the District Court for establishing for professionals a Christmas feast in July similar to that which occurred in A.H. Robins Co., Inc., No. 85-01307-R (E.D. Va. [ ] Nov. 25, 1987) and in In re Johns-Manville Corp., No. 82 B 11656 through 82 B 11676 (S.D.N.Y. October 5, 1990)." 40 The law firms were put on notice from the beginning, for example, that the court would not separately award most postal expenses, secretarial charges, word processing charges, local travel expenses, express mail charges, and computer research charges, because the court considered them overhead, i.e., part of the firms' cost of doing business which was amply covered by the fees awarded. The bankruptcy court stood by its decision throughout the case, despite repeated requests by the firms to be reimbursed for expenses that they should have known would not be reimbursed, other than through their fees. The court awarded interim fees of $5,353,282 to Stroock & Stroock & Lavan, and $5,718,756 to Kaye, Scholer. For expenses not included in overhead and covered by the fees, the court awarded $445,838.42 to the Stroock firm, and $165,074.94 to Kaye, Scholer. The expenses disallowed were $341,953.01 and $514,636.97, respectively. 41 The majority is concerned that the bankruptcy court may not have considered whether the hourly rates that it awarded to the firms would adequately compensate the firms for the disallowed categories of expenses. I see no basis for that concern in the record. It appears to me that the bankruptcy court did carefully consider whether the generous blended hourly fee figures that it approved were adequate to cover the amount of necessary expenses that it described as overhead and did not intend to reimburse separately. I would therefore affirm the district court's affirmance of the bankruptcy court's final fee and expense order. 42 Even though I disagree with the majority's approach and do not think a remand is required, the overall dollar result in this case may wind up being the same, anyway. As the majority has carefully phrased it, the remand is not for reconsideration of the expenses award alone, but for reconsideration of both compensation and expenses. While the bankruptcy court on remand is required to recognize the law firms' user fee method, it is not required to approve the same hourly fee rates that it found appropriate when a non-user fee method of expense reimbursement was contemplated by the court. On remand, the bankruptcy court is free to adjust those large hourly rates downward in view of the additional amount of expenses that the majority has dictated must be counted separately instead of being included as part of overhead. As the majority says: "Nor would we rule out the court's authority to adjust the [firms'] hourly billing charges if found excessive in light of the claimed expenses." It is the total compensation that must be fair--not excessive, but fair. 43 Indeed, if the bankruptcy court approved the generous hourly fee rates it did based upon the assumption that some of the expenses it must now award separately were to be covered in those hourly rates, it might be irrational for the court not to adjust the hourly rates downward now that that assumption has been corrected. If the bankruptcy court finds that those hourly rates when considered in relation to a "user fee" system are excessive and should be reduced, that decision will be overturned only if it is clearly erroneous. And the majority has assured us that clear error is "a very high standard, and one we would rarely be likely to find, especially in a fees situation." Honorable Levin H. Campbell, U.S. Senior Circuit Judge for the First Circuit, sitting by designation 1 (a) After notice to any parties in interest and to the United States trustee and a hearing, and subject to sections 326, 328, and 329 of this title, the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtor's attorney-- (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney, as the case may be, and by any paraprofessional persons employed by such trustee, professional person, or attorney, as the case may be, based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. 11 U.S.C. § 330(a). 2 As such it amounts to an abuse of discretion if it applies a wrong standard. In re Red Carpet, 902 F.2d at 890. We review legal rulings de novo 3 Appellants argue that because Mulberry I was decided in this bankruptcy court's district--and in fact overruled a fees decision by this bankruptcy judge that was similar to the one below--the bankruptcy judge should have followed Mulberry I and allowed the expenses. We have been presented with no Supreme Court or court of appeals precedent on whether decisions by a district court will constitute binding precedent for the bankruptcy courts in the same district, and the few district courts to consider the issue are split. Compare In re KAR Dev. Assocs., L.P., 180 B.R. 629, 640 (D.Kan.1995) (holding that bankruptcy courts are not bound by district court precedent, even from their own district); with Bryant v. Smith, 165 B.R. 176, 180-81 (W.D.Va.1994) (holding that bankruptcy courts are bound by district court precedent from their own district). This court, of course, is not bound by district court precedent, and, since the standard of review would not change either way, we see no reason to decide whether district court decisions may constitute binding precedent for bankruptcy courts	{ "pile_set_name": "FreeLaw" }
442 F.3d 657 HONG ZHANG CAO, Petitioner,v.Alberto R. GONZALES, United States Attorney General, Respondent. No. 05-1524. United States Court of Appeals, Eighth Circuit. Submitted: December 16, 2005. Filed: March 24, 2006. Thomas V. Massucci, New York, NY, for petitioner. Mark S. Pestal, Asst. U.S. Attorney, Denver, CO, for respondent. Before MELLOY, COLLOTON, and BENTON, Circuit Judges. MELLOY, Circuit Judge. 1 Hong Zhang Cao ("Cao") seeks review of a final order of removal by the Board of Immigration Appeals ("BIA"). The BIA summarily affirmed, without separate opinion, the decision of an immigration judge ("IJ") denying Cao's applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). We affirm the judgment of the BIA. I. 2 Cao, a native and citizen of China, entered the United States on or about April 5, 2000, under the Visa Waiver pilot program. Cao requested asylum, withholding of removal, and protection under CAT. Cao is married to a Chinese national and has two children. Cao claims past persecution and a fear of future persecution because of a forced abortion and forced sterilization performed on his wife. 3 The facts outlined in this section are as described by Cao. In Section II, we discuss some discrepancies between Cao's testimony and documentary evidence in this matter. Cao testified that he had a customary wedding ceremony with his wife on December 4, 1987. However, he stated that his marriage was not registered until later because he was not legally permitted to marry his wife in 1987. Cao stated that a woman must be twenty-two years old before she could be legally married and she was only sixteen years old at the time of the customary wedding. 4 According to Cao's testimony, his first child was born in Changle City. After the child was born, the Village Women's Committee came to his house to have an intrauterine device ("IUD") inserted into his wife. The insertion was initially delayed because his wife was experiencing heavy bleeding. However, the Women's Committee returned two months later and the IUD was inserted. 5 At some point later, Cao's wife experienced heavy bleeding while at work. She went to the bathroom and realized that the IUD had come out. Cao and his wife did not tell anyone about the IUD coming out because they feared the government would believe they had removed it. Soon after this incident, in March 1992, Cao's wife became pregnant again. 6 On July 13, 1992, Cao registered his marriage with his wife. Despite Cao's statement that he could not legally marry his wife until she was twenty-two, he was able to register his marriage while she was still twenty-one years old. At the time Cao brought his wife to have their marriage registered, she was five-months pregnant. The pregnancy was in clear violation of China's family planning policies, but the government official registering the marriage either did not notice Cao's wife's pregnancy or chose to ignore it. 7 In August 1992, the Women's Committee allegedly forced Cao's wife to have an abortion. Cao produced an abortion certificate to support his testimony on this point. The Women's Committee also told Cao's wife that they were going to sterilize her. Cao's family moved to the Guanzhou Province to evade the local authorities' attempts to sterilize Cao's wife. However, the village leaders of their previous community were able to track Cao and his family. Cao's family received a letter from their old village leaders requesting that they return for a pregnancy test. The letter stated that Cao's wife was to undergo a pregnancy test every three months or be sterilized. Cao's wife agreed to submit to regular pregnancy tests. 8 In October 1992, Cao and his wife returned to Changle City for the scheduled pregnancy test. They discovered that Cao's wife was pregnant again. Cao and his wife wanted to raise the child and did not want an abortion. As a result, they fled to Ba Yun (another village in Guanzhou) to have the child. The pregnancy ended with the birth of Cao's second child. 9 In September 1998, Cao's father-in-law was dying of cancer in Changle City. Cao and his wife decided to go to see her father. After they arrived, Cao's father-in-law passed away. Two days after his death, a policeman and a woman arrived at the family house in Changle City and took Cao's wife away to be sterilized. Cao argued with the authorities and was taken into custody for resisting arrest. After he was released from custody, he discovered that his wife had been sterilized. 10 Soon after the sterilization, Cao attempted to leave China. He was arrested in Taiwan for not possessing a passport or visa. Authorities sent Cao back to China where he served a prison term of one year and four months. 11 When Cao was released from prison, he could not return to Changle City because his family home had been destroyed by the Chinese government. Instead, Cao continued in his efforts to leave China. Cao went to Macau, obtained a tourist passport under an alias, and left China for the United States. On his I-94 form, Cao stated that he was a citizen of Portugal, not a citizen of China. He testified that he lied about his identity to gain admission to the United States because he had been denied a passport under his real identity. Cao believes that if he returns to China, he will be imprisoned for explaining "what's going on inside China." 12 On July 18, 2003, an immigration hearing was held to evaluate Cao's claims. The IJ denied all of Cao's claims because the IJ found Cao's testimony to be not credible. II. 13 When the BIA affirms the decision of the IJ without opinion, as in the present case, we treat the decision of the IJ as the final agency decision. Mompongo v. Gonzales, 406 F.3d 512, 513 (8th Cir.2005). We will uphold an IJ's determination denying asylum unless "the evidence. . . presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The Elias-Zacarias standard was subsequently codified such that a BIA finding of fact is "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). "We review the BIA's legal determinations de novo but recognize that its interpretation of the [Immigration and Nationality Act] is entitled to deference." Nyirenda v. INS, 279 F.3d 620, 623 (8th Cir.2002). We defer to an IJ's determination of the petitioner's credibility if the IJ had a "specific, cogent reason for disbelief." Ghasemimehr v. INS, 7 F.3d 1389, 1391 (8th Cir.1993). III. 14 To be granted asylum, a petitioner must prove that he or she is unwilling or unable to return to his or her home country because of past persecution or he or she has a well-founded fear of future prosecution based on race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). In a case where forced sterilization and/or abortion is the basis of a male petitioner's claim, we allow him to stand in the shoes of his wife in claiming persecution. See In re C-Y-Z-, 21 I. & N. Dec. 915, 917-18 (BIA 1997). 15 In this case, the IJ denied Cao's claims of past and fear of future persecution because the IJ found Cao's testimony not credible. The IJ outlined five reasons for its adverse credibility finding. We address each of those reasons below. 16 The IJ's first two reasons for questioning Cao's credibility concern the details of Cao's marriage. First, the IJ noted a material discrepancy relating to the date of Cao's customary marriage. Second, the IJ was concerned about the inconsistency in Cao's testimony about the legality of his marriage. Cao testified that his customary marriage ceremony was on December 4, 1987. However, an affidavit from his wife stated that the marriage was on February 10, 1988. Further, Cao testified that he could not legally marry his wife until she was twenty-two years old. However, when they registered their marriage, she was only twenty-one years old. 17 The mere existence of inconsistencies in the record does not preclude a petitioner's claim of persecution. See Sheikh v. Gonzales, 427 F.3d 1077, 1080 (8th Cir.2005) (noting that minor inconsistencies which do not go to the core of the claim of persecution will not support an adverse credibility finding). Since nothing in the record denies that Cao is married and the date of his marriage registration is not material to this matter, the discrepancies about the date of the marriage alone cannot support an adverse credibility finding. 18 Third, the IJ found Cao's testimony about the registration itself not credible. When Cao and his wife went to register the marriage, his wife was five months pregnant. The IJ found it implausible that the government official registering the marriage did not notice or object to Cao's wife being pregnant. However, the IJ's conclusion on this issue is based only on speculation. Speculation and conjecture are insufficient for an IJ to render an adverse credibility finding. See Kaur v. Ashcroft, 379 F.3d 876, 887 (9th Cir.2004). 19 There is nothing in the record to indicate that Cao's wife was visibly pregnant at that time. Further, it is certainly reasonable that a woman can be five-months pregnant and disguise that fact to someone during a very brief ceremony. Also, Cao noted that the wedding administrator is from a different part of the government than those charged with enforcing family planning regulations. Consequently, the official may have felt no obligation to discover or report an illegal pregnancy. Therefore, we do not find this part of the IJ's adverse credibility finding to be persuasive. 20 Fourth, the IJ noted that Cao's affidavit does not mention that she underwent a forced abortion and sterilization. The IJ found this omission to be significant in its seeming inconsistency with Cao's testimony. An omission alone is normally insufficient for an adverse credibility finding, but if it goes to the "heart of the asylum claim," it does raise a credibility issue. Kondakova v. Ashcroft, 383 F.3d 792, 796 (8th Cir.2004) (quoting Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001)). Because the forced abortion and sterilization is central to Cao's asylum claim, this omission from his wife's affidavit is notable. 21 Fifth, the IJ relied upon inconsistencies between Cao's statements and the Asylum Profile from the State Department of the Fuijan Province. In the Asylum Profile, there were no reports of forced sterilizations and abortions in the region. Also, the report stated that abortion certificates, like the one produced by Cao, were only issued for voluntary abortions. These inconsistencies are of a substantive nature and go to the key issues in Cao's asylum claim. Cao has offered no concrete evidence in support of his testimony regarding the forced enforcement of China's family planning policy in the Fuijan Province. Without such evidence, there was reason for the IJ to question the credibility of Cao's testimony about the issue. See Chen v. INS, 195 F.3d 198, 204 (4th Cir.1999) (noting that "an applicant must proffer some additional evidence that his fears of [the Chinese family planning] policy are objectively reasonable"). 22 While some of the reasons offered by the IJ for an adverse credibility finding would be legally insufficient standing alone, there exists substantial evidence to support the finding. The inconsistencies and omissions in Cao's testimony and documentary evidence combined with the discrepancies between the State Department reports and Cao's testimony are sufficient to support the IJ's credibility finding. IV. 23 Because Cao has failed to meet the lower standard for asylum, he necessarily fails to meet the higher standard for withholding of removal. Turay v. Ashcroft, 405 F.3d 663, 667 (8th Cir.2005). The finding denying asylum for Cao does not necessarily mean we should deny his claims under CAT. However, the adverse credibility finding as to the underlying facts of Cao's asylum claim applies to his CAT claim as well. V. 24 For the foregoing reasons, we deny the petition for relief.	{ "pile_set_name": "FreeLaw" }
720 N.E.2d 315 (1999) 308 Ill. App.3d 441 241 Ill.Dec. 860 Wendy HINTERLONG, as Independent Adm'r of the Estate of Dorothy T. Wollin, Deceased, Plaintiff-Appellant, v. S.P. BALDWIN, et al., Defendant-Appellee. No. 2-98-1194. Appellate Court of Illinois, Second District. November 4, 1999. 316 Kenneth C. Chessick, Patricia E. Raymond, John W. Fisk, Cary S. Chessick, Joan R. Stohl, Eric R. Holdridge, Law Office of Kenneth C. Chessick, M.D., S.C., Schaumburg, for Wendy Hinterlong, Administrator, Estate of Dorothy T. Wollin. Patricia L. Argentati, Norton, Mancini, Argentati, Weiler & DeAno, Wheaton, for S.P. Baldwin, Mark J. Bowman, Lowell D. Carpenter, Dreyer Clinic, S.C. David P. Meyer, Meyer, Kreuzer & Esp, Wheaton, for Mercy Center for Health Care Services. Linda E. Unger, Vincent P. Tomkiewicz, Rivkin, Radler & Kremer, Chicago, for Dreyer HMO. Richard A. Barrett, Jr., Cassiday, Schade & Gloor, Wheaton, for Joong H. Choh, Elgin Cardiac Surgery, Ltd. John L. Schroeder, Connelly & Schroeder, Geneva, for Paul Batty M.D. Justice RAPP delivered the opinion of the court: Plaintiff, Wendy Hinterlong, as independent administrator of the estate of her deceased mother, Dorothy Wollin, appeals from summary judgment entered in favor of defendant Dreyer Health Maintenance Organization (Dreyer HMO), a/k/a Dreyer Health Plan. 317 Plaintiff contends the trial court improperly concluded that her state law claim for medical malpractice based upon a theory of vicarious liability was preempted by section 514(a) of the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. § 1144(a) (1994)). We vacate and remand. I. BACKGROUND In December 1993, while undergoing surgery to correct coronary artery disease, Dorothy suffered a massive heart attack. She died shortly thereafter. At the time of her death, Dorothy was a member of Dreyer HMO, later known as Dreyer Health Plan. In June 1994, plaintiff, as independent administrator of Dorothy's estate, brought an 18-count complaint in the circuit court of Kane County against numerous parties for negligent medical treatment that resulted in Dorothy's death. Counts XVII and XVIII were directed against defendant for wrongful death and survival actions and were premised upon a theory of vicarious liability. Defendant is structured as an "Independent Practice Association" or "IPA model" health maintenance organization (HMO). An IPA, as opposed to a "staff model" HMO, is an entity that arranges and pays for health care for its members by contracting with independent medical groups, clinics, or physicians, instead of providing health care through its own salaried employees. Defendant contracted with the Dreyer Clinic (clinic) to provide medical services to defendant's members. The clinic was a corporate entity that wholly owned defendant. The contract between the clinic and defendant provided for a system of managed care known as global capitation. Under this system, defendant paid the clinic premiums obtained from an employer, less a 10% administrative fee and a percentage for pharmacy expenses. In exchange, the clinic assumed the financial risks of providing complete medical care for defendant's members. This included the expense of treatment by specialists employed by the clinic, specialists not employed by the clinic, and hospitalization when necessary. If the total cost of care provided to all defendant's members was less than the total amount of premiums received, the clinic kept the profit. If the opposite was true, the clinic had to absorb the excess. When the clinic made a profit from its relationship with defendant, the physicians employed by the clinic received bonuses. In 1989, defendant entered into a contract with Dorothy's employer, AT&T, to arrange for health care services for eligible employees who enrolled with defendant. In exchange, AT&T paid a portion of the premiums for employees who chose defendant as its health care provider. Defendant was only one option in AT&T's comprehensive employee welfare benefit plan. Defendant entered into similar contracts with numerous other employers. Pursuant to AT&T's employee welfare benefit plan, Dorothy enrolled with defendant. Defendant required each member to choose a primary care physician (PCP) who was responsible for providing primary medical care to the member and, if necessary, making written referrals to specialists and recommending hospitalization. If a member's PCP recommended hospitalization, final approval would have to be given by the clinic's utilization review department. Defendant did not conduct independent utilization review of a PCP's recommendation. Instead, under the global capitation agreement, defendant created financial incentives for the clinic, vis à vis the physicians, to keep hospitalization and nonclinic specialist referrals to a minimum. From April 1991 through December 1993, Dorothy sought treatment from the clinic physicians for a heart condition. In her complaint, plaintiff contended that the care Dorothy received was negligent. Specifically, plaintiff cited a failure to timely diagnose and aggressively treat Dorothy's life-threatening condition, to timely 318 refer her to a specialist, and to timely hospitalize her. Plaintiff further alleged Dorothy's treating physicians were agents of defendant and stated 12 reasons why defendant was vicariously liable for Dorothy's death. Soon after plaintiff filed her complaint, defendant petitioned for removal to federal court and subsequently moved for dismissal or summary judgment based upon the preemption provision of section 514(a) of ERISA (29 U.S.C. § 1144(a) (1994)). After a hearing on the merits of defendant's preemption claim, the United States District Court for the Northern District of Illinois denied the petition for removal and remanded the case to the trial court. In its summary order denying removal, the district court relied on its earlier ruling in Smith v. HMO Great Lakes, 852 F.Supp. 669 (N.D.Ill.1994), in holding that plaintiff's claims for medical malpractice and wrongful death were not preempted by ERISA. Defendant did not appeal this ruling to the federal appeals court. Instead, upon remand, defendant filed an answer to plaintiff's complaint in which it denied each and every allegation of negligence and further denied that Dorothy's treating physicians were its agents, real or apparent. Defendant also raised three affirmative defenses, including ERISA preemption, which it had already raised and fully litigated in the district court. Following a lengthy discovery period, defendant moved for summary judgment based upon both ERISA preemption and the substantive merits of the complaint. In a detailed written order the trial court, in spite of the earlier ruling by the district court, granted summary judgment based upon ERISA preemption but stated that summary judgment would be inappropriate based upon the merits of the complaint because it determined that a genuine issue of material fact existed as to the agency relationship between defendant and the treating physicians. The trial court made findings pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)), and plaintiff timely appealed. II. DISCUSSION This case presents a first for an appellate court in this state. We must decide whether, under the facts of this case, the broad statutory shield known as ERISA (29 U.S.C. § 1001 et seq. (1994)) preempts a state law medical malpractice action based upon a theory of vicarious liability brought against an IPA-model HMO that contracted to arrange for health care services as part of a comprehensive employee benefits package established, maintained, and administered by a corporate employer. For the reasons that follow we hold that it does not. A. Standard of Review Because this case comes to us from an order granting summary judgment, we conduct a de novo review. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill.2d 107, 113, 208 Ill.Dec. 662, 649 N.E.2d 1323 (1995). Summary judgment is a drastic means of disposing of litigation and therefore should be reversed on appeal if the record reveals the presence of a material question of fact or, if none, that the moving party was not entitled to judgment as a matter of law (see 735 ILCS 5/2-1005(c) (West 1998); Zoeller v. Augustine, 271 Ill.App.3d 370, 374, 208 Ill.Dec. 17, 648 N.E.2d 939 (1995)). Plaintiff contends that summary judgment was inappropriate in this case because, as a matter of law, her medical malpractice action based upon a theory of vicarious liability was not preempted by section 514(a) of ERISA. We agree. B. Scope of Review The supremacy clause of the United States Constitution provides that the laws of the federal government "shall be the supreme Law of the Land; * * any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., art. VI, cl. 2. Through this clause Congress is vested with the power to preempt state law. Determining whether 319 state law is preempted by federal law, however, must begin "`with the assumption that the historic police powers of the States [are] not to be superceded by ... Federal Act unless that [is] the clear and manifest purpose of Congress.' [Citation.]" Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407, 422 (1992). Thus, the basic question we address is whether it was the intent of Congress in enacting a statute, such as ERISA, to preempt a particular state law. Scholtens v. Schneider, 173 Ill.2d 375, 379, 219 Ill.Dec. 490, 671 N.E.2d 657 (1996). Congressional intent to preempt state law may be gleaned from the express language of the statute if the language is clear and unambiguous; or, if not, intent may also be implied from the statute's structure and purpose. See Scholtens, 173 Ill.2d at 379, 219 Ill.Dec. 490, 671 N.E.2d 657, citing Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95, 103 S.Ct. 2890, 2899, 77 L.Ed.2d 490, 500 (1983). In analyzing claims of federal preemption, we operate under the strong presumption that Congress did not intend to supercede state law. New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co., 514 U.S. 645, 654, 115 S.Ct. 1671, 1676, 131 L.Ed.2d 695, 704 (1995). Plaintiff's claims sound in medical malpractice, which undisputably falls within the traditional ambit of state law. Therefore, defendant bears the "considerable burden" of overcoming the presumption that, in passing ERISA, Congress did not intend to displace medical malpractice claims based upon a theory of vicarious liability brought against an IPA-model HMO. See De Buono v. NYSA-ILA Medical & Clinical Services Fund, 520 U.S. 806, 814, 117 S.Ct. 1747, 1751-52, 138 L.Ed.2d 21, 29 (1997). In our view, defendant has not met its burden. As with any problem involving statutory interpretation, in ascertaining congressional intent, we begin with an analysis of the language of the statute. Scholtens, 173 Ill.2d at 380, 219 Ill.Dec. 490, 671 N.E.2d 657. Section 514(a) of ERISA provides that ERISA preempts "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan" as described in section 503 of ERISA (29 U.S.C. § 1003 (1994)). (Emphasis added.) 29 U.S.C. § 1144(a) (1994). Thus, resolution of the dispute before us requires a two-prong analysis involving the following questions: (1) whether defendant can be characterized fairly as an employee welfare benefit plan (EWBP) within the contours of ERISA, and, if so, (2) whether plaintiff's medical malpractice claim premised on a theory of vicarious liability is an action under state law that "relates to" defendant in its status as an EWBP. If the answer to either question is no, then the claim is not preempted. Because both inquires are interdependent, however, if it is easier to dispose of the controversy under the second prong (i.e., assuming for the sake of argument that an EWBP exists and finding that the claim does not relate to the plan), we will do so. C. Is Defendant an EWBP? Plaintiff contends that defendant itself is not an EWBP within the meaning of ERISA and therefore defendant cannot invoke the shield of ERISA preemption as a defense. In response, defendant asserts (without providing any authority except the definition of an EWBP found in ERISA itself) that "the law is completely settled" that "ERISA is triggered * * not because [it] was an ERISA plan, but because it administered an ERISA plan." (Emphasis in original.) By this, defendant admits that it is not an EWBP in and of itself; nevertheless, it claims that its status as an "administrator" of part of AT&T's EWBP confers ERISA's full panoply of protection upon it. We decline to address whether defendant is in fact an EWBP because it is easier for us to dispose of this matter under the second prong of the two-prong analysis set out above. In other words, we 320 assume for the sake of argument that defendant can be characterized fairly as an EWBP within the contours of ERISA and proceed to determine whether plaintiff's claims against defendant "relate to" it in its status as an EWBP. By making the assumption that defendant is an EWBP subject to ERISA, we do not intend to hold that it is or is not. However, we do recognize, contrary to defendant's characterization of the law as being "completely settled," that "there is some `confusion' as to whether [ERISA's] `tautological' definition [of an EWBP] encompasses HMOs and other managed care organizations" which arrange, pursuant to contract, to provide medical services for a company's EWBP participants. Nealy v. U.S. Healthcare HMO, 93 N.Y.2d 209, 220 n. 3, 689 N.Y.S.2d 406 n. 3, 711 N.E.2d 621, 625 n. 3 (1999) (commenting that the Secretary of Labor, charged with interpreting and enforcing the provisions of ERISA, has noted that an HMO is not an ERISA plan at all, but rather a service provider to an ERISA plan established by an employer). D. Do Plaintiff's Claims "Relate to" an EWBP? Operating under the assumption that defendant is an EWBP, we turn to whether plaintiff's medical malpractice claim "relates to" defendant in its status as an EWBP. We hold that it does not. As mentioned earlier, ERISA preempts state laws "insofar as they * * relate to any employee benefit plan." 29 U.S.C. § 1144(a) (1994). "State law" as used in this clause includes "all laws, decisions, rules, regulations, or other State action having the effect of law, of any State." 29 U.S.C. § 1144(c)(1) (1994). This encompasses the common law as well as statutory law. Due to the nature of this case, the evolution of the United States Supreme Court's ERISA preemption analysis warrants discussion. During the 1980s and early 1990s, the Supreme Court gave ERISA preemption a breathtakingly broad scope. In the 1980s the Court found that section 514(a) was "deliberately expansive." Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 46, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39, 46 (1987). Relying strictly on section 514(a)'s language, the Court at that time was of the opinion that the breadth of ERISA's preemptive reach was apparent on its face. Shaw, 463 U.S. at 96, 103 S.Ct. at 2899-90, 77 L.Ed.2d at 500-01. The Court professed that the language of section 514(a) was to be given its "broad common-sense meaning, such that a state law `relate[s] to' a benefit plan `in the normal sense of the phrase, if it has a connection with or reference to such a plan.'" Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724, 739, 105 S.Ct. 2380, 2389, 85 L.Ed.2d 728, 740 (1985), quoting Shaw, 463 U.S. at 96-97, 103 S.Ct. at 2900, 77 L.Ed.2d at 501. Employing this rigid analysis, the Court found in the vast majority of cases that the state laws being reviewed had some "connection with" or "reference to" the ERISA plan in question. Nevertheless, the Court did concede that section 514(a) was perhaps "not a model of legislative drafting." Metropolitan Life, 471 U.S. at 739, 105 S.Ct. at 2389, 85 L.Ed.2d at 740. In 1995, the Court retreated from its rigid textual analysis of section 514(a). See Travelers, 514 U.S. 645, 115 S.Ct. 1671, 131 L.Ed.2d 695. In Travelers, a unanimous Court determined that a New York statute requiring hospitals to collect surcharges from patients covered by all commercial insurers other than Blue Cross/Blue Shield was not preempted by ERISA. After years of trying to make sense of the "plain language" of section 514(a), the Court broke ranks and admitted the text is simply "unhelpful." Travelers, 514 U.S. at 656, 115 S.Ct. at 1677, 131 L.Ed.2d at 705. While reiterating that the language is expansive, the Court found that it is not limitless. Travelers, 514 U.S. at 655, 115 S.Ct. at 1677, 131 L.Ed.2d at 705. The Court questioned the wisdom of its earlier, purely textual interpretation of the language, cautioning that "[i]f `relate to' were taken to extend to the furthest 321 stretch of its indeterminacy, then for all practical purposes pre-emption would never run its course, for `[r]eally, universally, relations stop nowhere.'" Travelers, 514 U.S. at 655, 115 S.Ct. at 1677, 131 L.Ed.2d at 705, quoting H. James, Roderick Hudson xli (New York ed., World's Classics 1980). Thus, recognizing that "infinite relations cannot be the measure of pre-emption" (Travelers, 514 U.S. at 656, 115 S.Ct. at 1677, 131 L.Ed.2d at 705), the Court concluded: "We simply must go beyond the unhelpful text [of section 514(a) ] and the frustrating difficulty of defining its key term [`relates to'], and look instead to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive." Travelers, 514 U.S. at 656, 115 S.Ct. at 1677, 131 L.Ed.2d at 705. Later, in California Division of Labor Standards Enforcement v. Dillingham Construction, N.A., Inc., 519 U.S. 316, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997), a majority of the Court relied upon Travelers to find that a California prevailing wage law was not preempted by ERISA. In a concurring opinion, Justice Scalia opined that the Court's ERISA preemption analysis had been significantly changed by Travelers. He chastised the majority for not forthrightly acknowledging that the holdings of the pre-Travelers cases "have in effect been abandoned." Dillingham, 519 U.S. at 335, 117 S.Ct. at 843, 136 L.Ed.2d at 806 (Scalia, J., concurring). In De Buono, 520 U.S. at 813-14, 117 S.Ct. at 1751, 138 L.Ed.2d at 29, the Court followed Travelers again when it explored Congress's intent in enacting ERISA in order to determine if a state law would indeed fall within ERISA's preemptive scope. The Court held that a New York gross receipt tax was not preempted because it was "one of `myriad state laws' of general applicability that impose some burdens on the administration of ERISA plans but nevertheless do not `relate to' them within the meaning of the governing statute." De Buono, 520 U.S. at 815, 117 S.Ct. at 1752, 138 L.Ed.2d at 30. It then concluded, "Any state [law] * * that increases the cost of providing benefits to covered employees will have some effect on the administration of ERISA plans, but that simply cannot mean that every state law with such an effect is pre-empted by the federal statute." De Buono, 520 U.S. at 816, 117 S.Ct. at 1753, 138 L.Ed.2d at 31. In the face of Travelers and its progeny, defendant invites us to engage in the type of purely textual interpretation of the "relates to" language called into question by the Supreme Court. Defendant argues that "all state causes of action and laws not specifically provided for in the enforcement provisions [of ERISA] become subject to [its] preemption provision." It then continues, citing Travelers and Scholtens, that "a state law can `relate to' an employee benefit plan even if the effect is indirect or incidental or if the law was not intended to specifically affect the plan." Defendant's reliance upon Travelers and Scholtens is misplaced. A close reading of the portions of Travelers and Scholtens cited by defendant reveals that in both instances the opinions were discussing the state of Supreme Court ERISA preemption analysis as it existed in the 1980s and early 1990s, prior to Travelers. As a result, we decline defendant's invitation to interpret section 514(a) in the manner it proposes. Instead, in our quest to resolve this controversy, we will consider not only the language of section 514(a) but also the structure and purpose of ERISA as a whole in deciding whether the claim at issue is preempted. See Scholtens, 173 Ill.2d at 383, 219 Ill.Dec. 490, 671 N.E.2d 657. ERISA was enacted to protect the interests of participants in employee benefit plans. 29 U.S.C. § 1001(b) (1994). It subjects to federal regulation fringe benefit plans provided by employers. Shaw, 463 U.S. at 90, 103 S.Ct. at 2896, 77 L.Ed.2d at 497. In enacting ERISA, Congress found 322 that "the soundness and stability of plans with respect to adequate funds to pay promised benefits may be endangered" (29 U.S.C. § 1001(a) (1994)) due to a lack of uniformity in the regulations of such plans. ERISA applies to both pension plans and welfare plansprograms that provide benefits for contingencies such as illness, accident, disability, death, or unemployment. 29 U.S.C. § 1002(1), (2)(A) (1994). The statute sets uniform standards for welfare plans, such as fiduciary responsibilities and reporting and disclosure requirements. 29 U.S.C. §§ 1021 through 1031 (1994). Congress's intent in engrafting section 514(a) on ERISA was to establish regulation of the administration of employee benefit plans as an exclusively federal concern. Travelers, 514 U.S. at 656-57, 115 S.Ct. at 1677-78, 131 L.Ed.2d at 706. In Travelers, the Court noted that the purpose of section 514(a) is to ensure that benefit plans are subjected to a uniform body of law that minimizes the administrative and financial burden of complying with conflicting directives among states or between states and the federal government. Travelers, 514 U.S. at 656-57, 115 S.Ct. at 1677-78, 131 L.Ed.2d at 706. Thus, "`[p]reemption does not occur... if the state law has only a tenuous, remote, or peripheral connection with covered plans, as is the case with many laws of general applicability.'" Travelers, 514 U.S. at 661, 115 S.Ct. at 1680, 131 L.Ed.2d at 708-09, quoting District of Columbia v. Greater Washington Board of Trade, 506 U.S. 125, 130 n. 1, 113 S.Ct. 580, 583 n. 1, 121 L.Ed.2d 513, 520 n. 1 (1992). In summary, the Court determined that nothing in the language of section 514(a) or in ERISA's structure or purpose indicates Congress intended to displace matters of historically local concern, including state laws that govern the provision of safe medical care. Travelers, 514 U.S. at 661, 115 S.Ct. at 1680, 131 L.Ed.2d at 709. Indeed, ERISA did not create "a fully insulated legal world that renders all state law preempted whenever there is a plan in the picture." Scholtens, 173 Ill.2d at 392, 219 Ill.Dec. 490, 671 N.E.2d 657. We recognize that the Supreme Court's ERISA preemption analysis has been limited primarily to "regulatory"-type statutory provisions. The Court has not yet spoken directly on the issue of whether medical negligence claims against an HMO "relate to" an ERISA plan. However, lower federal courts and a few state courts have addressed the issue, with the majority of post-Travelers cases coming out against preemption. See Nealy, 93 N.Y.2d 209, 689 N.Y.S.2d 406, 711 N.E.2d 621 (citing Travelers and holding that a state law medical malpractice claim based upon vicarious liability brought against an HMO did not "relate to" employee benefits plan and thus was not preempted); Pappas v. Asbel, 555 Pa. 342, ___, 724 A.2d 889, 893-94 (1998) (same); In re Estate of Frappier, 678 So.2d 884, 887 (Fla. App.1996) (same); Tufino v. New York Hotel & Motel Trades Council, 223 A.D.2d 245, 250, 646 N.Y.S.2d 799, 802 (1996) (holding that a medical malpractice claim based upon vicarious liability was not preempted). In Pacificare of Oklahoma, Inc. v. Burrage, 59 F.3d 151 (10th Cir.1995), the court found that a medical malpractice claim based upon vicarious liability does not involve the administration of the plan's benefits or their level or quality but rather the doctor's negligent care and the agency relationship between the doctor and the HMO. In reaching the conclusion that the claim was not preempted, the court noted that if a state law does not affect the structure, administration, or type of benefits provided by an ERISA plan, the law should not be preempted simply because it has some economic effect on the plan. Pacificare, 59 F.3d at 154. The court identified four categories of state laws that should be preempted. These are (1) laws that regulate the type of benefits or terms of ERISA plans, (2) laws that create reporting, disclosure, funding, or vesting requirements 323 for ERISA plans, (3) laws that provide for the calculation of the amount of benefits to be paid under ERISA plans, and (4) laws that provide remedies for misconduct growing out of the administration of an ERISA plan. Pacificare, 59 F.3d at 154. According to what it termed the majority view, the court stated: "[The issue of a doctor's negligence] `"require[s] ... evidence of what transpired between the patient and physician and an assessment of whether in providing admittedly covered treatment or giving professional advice the physician possessed and utilized the knowledge, skill and care usually had and exercised by physicians in his community or medical specialty."` [Citation.] * * * [A] malpractice action `does not involve a claim for plan benefits, a claim to enforce rights under the benefit plan or a claim challenging administration of the benefit plan.' [Citation.] The action `simply involves a claim that the deceased received allegedly negligent treatment from a doctor who was "held out" by the health maintenance organization as its agent.' [Citation.]" Pacificare, 59 F.3d at 154. Other federal courts have shared essentially the same view. For example, in Dukes v. U.S. Healthcare, Inc. 57 F.3d 350, 356 (3d Cir.1995), the court found that medical malpractice claims against HMOs based upon vicarious liability for the negligence of affiliated medical personnel were not subject to removal. In reaching its conclusion, the court distinguished between a lawsuit claiming the withholding of benefits and a claim that attacked the quality of care provided. Dukes, 57 F.3d at 357. It then stated, "[T]here is no allegation here that the HMOs denied anyone any benefits that they [sic] were due under the plan. Instead the plaintiffs here are attempting to hold the HMOs liable for their role as the arrangers of their decedents' medical treatment." Dukes, 57 F.3d at 361; see also Paterno v. Albuerne, 855 F.Supp. 1263, 1264 (S.D.Fla.1994) (holding that ERISA does not preempt a vicarious liability medical malpractice claim against an HMO because such a case does not involve a claim for wrongful denial of benefits). Here, defendant asserts that our decision is controlled by Jass v. Prudential Health Care Plan, Inc., 88 F.3d 1482 (7th Cir.1996). We disagree. State courts are not bound to follow decisions of the federal district courts or circuit courts of appeal. Federal courts exercise no appellate jurisdiction over state courts; therefore, decisions of the lower federal courts are not binding on state courts (People v. Kozlowski, 278 Ill.App.3d 40, 45-46, 215 Ill.Dec. 4, 662 N.E.2d 630 (1996)), except insofar as the decision may become the law of the case (People v. Eyler, 133 Ill.2d 173, 225, 139 Ill.Dec. 756, 549 N.E.2d 268 (1989)) or the doctrines of res judicata (claim preclusion) or collateral estoppel (issue preclusion) may apply. We note, as an aside, that plaintiff raised the issue of law of the case below. The trial court rejected plaintiff's contention that defendant was estopped from raising ERISA preemption because it had previously been fully litigated in federal court. On appeal to this court, plaintiff does not again raise estoppel through law of the case or the other preclusive doctrines. We will therefore not address or comment further on the issue. Having clarified the precedential value of Jass, we are unmoved by defendant's assertion that we should follow Jass's conclusion that a medical malpractice claim based on a theory of vicarious liability brought against an IPA-model HMO is in reality a denial of plan benefits and thus subject to ERISA preemption (Jass, 88 F.3d at 1494). Jass suffers several infirmities. Most notably, Jass completely ignores Travelers and engages in the purely textual analysis of section 514(a) called into question by Travelers. Jass is also factually distinguishable from the case before us. 324 In Jass, the plaintiff sued her doctor and HMO, alleging negligence after a utilization review nurse determined a course of physical therapy following knee surgery was unnecessary. The plaintiff claimed that as a result of the HMO's denial of physical therapy she suffered permanent injury to her knee. Jass, 88 F.3d at 1485. The court held that the plaintiff's claims were preempted not because they asserted the physician's negligent treatment but because the physician's failure to treat stemmed from a denial of benefitsphysical therapyby a utilization review administrator. Jass, 88 F.3d at 1493. In our case, there was no utilization review conducted. In fact, defendant was not in the business of conducting utilization review. Defendant, instead, attempted to control medical costs through financial incentives. Thus, if a physician wished to maximize income, it was in his or her best interest to keep referrals, hospitalizations, and expensive procedures to a minimum. There simply was no allegation of denial of benefits in this case. Rather, plaintiff alleges a treatment decision was made based upon financial considerations, not medical considerations. We also believe Jass's attempt to distinguish itself from Pacificare is seriously flawed. In Jass, the court stated that Pacificare was distinguishable because "the doctor alleged to have been negligent was `one of [the HMO's] physicians.'" Jass, 88 F.3d at 1494, citing but not quoting Pacificare, 59 F.3d at 154. A close reading of Pacificare does not bear this out. In Pacificare, the plaintiff alleged vicarious liability for the medical malpractice of "a Pacificare primary care physician and alleged agent of Pacificare." Pacificare, 59 F.3d at 152. Nowhere in the opinion does it state that the physician was directly employed by the HMO as Jass implies. In Jass, the plaintiff's treating physician was "a physician named in [the HMO's] list of participating physicians" (Jass, 88 F.3d at 1485), i.e., the physician was one of the HMO's physicians. In other words, the relationship between the doctor and the HMO in Jass may be no different from the relationship between the doctor and the HMO in Pacificare. Pacificare is simply not explicit enough to make the distinction attempted in Jass. Moreover, we believe a review of the district court's opinion on which Pacificare was based conclusively reveals that the HMO in Pacificare was an IPA-model HMO rather than a staff-model HMO as suggested in Jass. In Schachter v. Pacifi-Care of Oklahoma, Inc., 923 F.Supp. 1448, 1450 (N.D.Okla.1995), the court, in setting forth its statement of facts, stated: "The defendant, PacifiCare of Oklahoma, Inc. * , is a health maintenance organization, which furnished employee health care for the employer of Schachter's deceased mother * . The defendant, Dr. Raymond W. Goen, * * was * * * the physician who provided medical care to [the deceased]. The defendant, The Wheeling Medical Group * * , was * * the employer of Dr. Goen." Schachter, 923 F.Supp. at 1450. We conclude the position taken in Pacificare and the majority of federal district courts is better than that taken in Jass and the trial court in our case. We find Lancaster v. Kaiser Foundation Health Plan of Mid-Atlantic States, Inc., 958 F.Supp. 1137, 1149-50 (E.D.Va. 1997), instructive. There, the court found that a medical malpractice claim based upon vicarious liability brought against an IPA-model HMO was not preempted by ERISA. In so finding, the court noted: "[A]n indirect negligence claim for vicarious liability inescapably `relates to' an employee benefit plan in that it requires at least minor reference to the plan in order to establish an agency relationship. But such reference does not sufficiently implicate the underlying objectives of the ERISA statute. The indirect negligence claims here do not purport to mandate or regulate an employee *325 benefit plan. Instead, the claims are directed at [the physicians'] alleged negligence and the agency relationship between [the parties]." Lancaster, 958 F.Supp. at 1150. See also Crum v. Health Alliance-Midwest, Inc., 47 F.Supp.2d 1013 (C.D.Ill. 1999); Kearney v. U.S. Healthcare, Inc., 859 F.Supp. 182, 186 (E.D.Pa.1994). Here, plaintiff's medical malpractice claim against defendant asserts at its base that the treating physicians as agents of defendant made poor medical decisions, not based on sound medical practice, but rather based on financial considerations and economic constraints. In entering summary judgment in this case, the trial court reasoned that plaintiff's complaint that Dorothy's treating physicians were negligent due to defendant's rules or financial incentives impliedly contained "elements of a denial of benefits" or at least was "intertwined" with benefit determinations. The trial court concluded that resolving plaintiff's claims would therefore require reference to the plan documents that make her claims related to or connected with the plan. We disagree. Poor medical decisions are not sufficiently analogous to the denial of plan benefits or sufficiently intertwined with benefit determinations to implicate ERISA preemption. In a case alleging medical malpractice of an HMO through vicarious liability, any reference to the plan documents would be necessary only for proving matters of agency, not for wrongful plan administration or for withholding of promised plan benefits. See Jackson v. Roseman, 878 F.Supp. 820, 826 (D.Md.1995). Medical malpractice actions are laws of general applicability. They are not intended to regulate the affairs of ERISA plans. Nor do they single out such plans for special treatment nor predicate rights or obligations on the existence of an ERISA plan. Medical malpractice actions have neither the effect of dictating or restricting the manner in which ERISA plans structure or conduct their affairs nor the effect of impairing their ability to operate simultaneously in more than one state. ERISA was enacted for the purpose of protecting individuals, not to provide loopholes through which an ERISA plan can avoid liability for its actions or the actions of its agents. Nor was ERISA enacted to provide a shield behind which to hide. See Lancaster, 958 F.Supp. at 1149-50. Without a clear indication from Congress, we will not impute to it the intention to void existing state laws of general applicability, such as medical malpractice actions, which protect the very beneficiaries of the ERISA statute. "Considerations of cost containment of the type which drive [sic] the decision making process in HMO's [sic] did not exist for employee welfare plans when ERISA was enacted." Pappas v. Asbel, 450 Pa.Super. 162, 171, 675 A.2d 711, 716 (1996). Redressing medical negligence, whether directly or indirectly, in no way runs afoul of ERISA's policies. We therefore vacate the trial court's summary judgment order in which it found that ERISA preempted plaintiff's medical malpractice action against defendant and remand the case for further proceedings. [Nonpublishable material removed under Supreme Court Rule 23.] III. CONCLUSION For the foregoing reasons the order of the circuit court of Kane County granting summary judgment in favor of defendant is vacated, and the cause is remanded for further proceedings. Vacated and remanded. INGLIS and McLAREN, JJ., concur.	{ "pile_set_name": "FreeLaw" }
798 F.2d 1450 255 U.S.App.D.C. 19, 55 USLW 2128 R. David FINZER, Father, et al., Appellants,v.Marion S. BARRY, Jr., Mayor, District of Columbia, et al. No. 84-5327. United States Court of Appeals,District of Columbia Circuit. Argued March 20, 1985.Decided Aug. 19, 1986.As Amended Sept. 9, 1986. Appeal from the United States District Court for the District of Columbia (Civil Action No. 84-0899). Raymond D. Battocchi, with whom Alfred F. Belcoure, James A. Bensfield and Steven F. Korostoff, Washington, D.C., were on brief, for appellants. William J. Earl, Asst. Corp. Counsel for Dist. of Col., with whom John H. Suda, Principal Deputy Corp. Counsel for Dist. of Col. and Charles L. Reischel, Deputy Corp. Counsel for Dist. of Col., Washington, D.C., were on brief, for appellees. R. Craig Lawrence, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Royce C. Lamberth, Asst. U.S. Atty., were on brief, for U.S., Washington, D.C., amicus curiae urging affirmance. Before WALD, Chief Judge, BORK, Circuit Judge, and DAVIS,* Circuit Judge, United States Court of Appeals for the Federal Circuit. Opinion for the Court filed by Circuit Judge BORK. Dissenting opinion filed by Chief Judge WALD. BORK, Circuit Judge: 1 Appellants are individuals who wish to carry placards opposing the policies of the Soviet and Nicaraguan governments in front of those governments' embassies, located within the District of Columbia. In the absence of a permit, such protests are barred by D.C.Code Sec. 22-1115 (1981). That same statute authorizes police to disperse congregations in front of embassies. Appellants asserted unsuccessfully before the district court that, on its face, this law violates the first and fourteenth amendments to the Constitution. They appeal the district court's holding that the statute is constitutional and its grant of summary judgment for defendants. 2 The challenged statute regulates demonstrations taking place in front of foreign embassies (or buildings occupied by representatives of foreign governments) located within the District of Columbia. It contains several subsidiary provisions but for purposes of exposition it is sufficient to note its two primary features. The first makes it unlawful to "display any ... placard ... designed ... to ... bring into public odium any foreign government ... or to bring into public disrepute political, social, or economic acts, views, or purposes of any foreign government" within 500 feet of that country's embassy, unless the demonstrators receive a permit to do so from the Chief of Police. The second feature makes it unlawful to "congregate within five hundred feet of any [embassy], and refuse to disperse after having been ordered so to do by the police authorities" of the District of Columbia.1 3 Speaking very generally, the first part of the statute--requiring a permit for the display of a sign tending to bring a foreign government into disrepute--is primarily intended to avoid affronts to the dignity of foreign governments and their diplomatic personnel. The second feature--prohibiting "congregating"--is concerned more with threats to the security of the foreign government's representatives and property. Each of these main divisions of the statute is, of course, capable of serving both purposes mentioned. In both cases, the protection is limited to an area extending 500 feet from the building. In Frend v. United States, 100 F.2d 691 (D.C.Cir.1938), cert. denied, 306 U.S. 640, 59 S.Ct. 488, 83 L.Ed. 1040 (1939), this court rejected a first amendment challenge to section 22-1115 and upheld the provision's constitutionality. In issuing the judgment we review today, the district court, relying in part on Frend, reached the same conclusion. Finzer v. Barry, Civ. Action No. 84-0899 (D.D.C. May 17, 1984), Record Excerpts ("R.E.") at 62. 4 Our opinion is, unfortunately, quite lengthy, because in addition to presenting our analysis, it is necessary that we address the numerous and varied challenges to this statute advanced by appellants and the dissent. We hold that section 22-1115 passes constitutional muster, and we affirm the district court's holding to that effect. We remand, however, for the limited purpose of addressing appellants' claim that section 22-1115 has been enforced by local authorities against persons who were not in fact engaged in activities forbidden by the statute. I. 5 Father R. David Finzer is the National Chairman of the Young Conservative Alliance of America, Inc., which he describes as "an organization of younger citizens who hold conservative views, and are dedicated to advocating and furthering those viewpoints." Declaration of Father R. David Finzer, R.E. at 15. He and three co-plaintiffs--Bridget Brooker, J. Michael Waller, and Michael Boos--initiated this action in March of 1984 against the District of Columbia, the Mayor, and the Chief of Police. The United States was granted leave to participate as amicus curiae and supported the constitutionality of the statute. 6 Plaintiffs' complaint and accompanying declarations state that they wish to conduct demonstrations of the sort described in D.C.Code Sec. 22-1115--they wish to carry signs critical of the Soviet and Nicaraguan governments within 500 feet of their embassies. Mr. Waller, for example, wishes to carry a sign bearing the words "Stop the Killing" in front of the Nicaraguan Embassy. Two of the plaintiffs claim to have been prevented in the past from demonstrating by uniformed police officers acting under the authority of section 22-1115. Additionally, they allege that the statute has been enforced against activity that was not in fact within its reach. Arguing that section 22-1115 abridges rights guaranteed by the first and fourteenth amendments to the United States Constitution, plaintiffs moved for summary judgment, seeking a permanent injunction against the provision's enforcement and a declaration of its unconstitutionality. 7 Defendants opposed this motion and filed a cross motion for summary judgment. They filed accompanying declarations from David Fields, Deputy Assistant Secretary of State for Security; Thomas D. Quinn, Special Agent in Charge of the Office of Protective Operations of the United States Secret Service; James E. Nolan, Jr., Director of the Office of Foreign Missions, Department of State; and John C. Connor, Deputy Chief of Police and Commanding Officer of the Special Operations Division of the Metropolitan Police Department in the District of Columbia. The declarations of the two State Department officials noted that the responsibility of a host state to provide appropriate protection to foreign embassies within its borders is one codified and imposed by international law, and that the degree of protection afforded by foreign governments to American diplomatic personnel abroad depends in significant part upon the protection provided by our government to foreign diplomats living in Washington, D.C. It was the considered judgment of both men that diminshing the protection provided by section 22-1115 would have a serious and adverse effect upon the relationships between the United States and many other governments and would endanger American diplomatic personnel who live and work in other countries. The other two declarants stated, on the basis of their professional experience, that section 22-1115 was necessary to the continued security of foreign embassies located in Washington, D.C. They explained that the task of protecting foreign embassies presented unique security problems, because--unlike, for example, when protecting the White House, the Capitol, or the Supreme Court--American police are prohibited from entering the premises. They may do so only upon the express prior approval of the foreign government, which, for obvious reasons, will rarely be given. The 500 foot buffer zone created by section 22-1115 compensates to some degree for the absence of any American police presence inside these buildings. R.E. at 36-58. 8 The plaintiffs did not submit any declarations in response. Instead, they filed a Statement of Material Facts in Dispute in which they claimed that they were entitled to summary judgment even if all the defendants' declarations were accepted as true, and informed the district court that they did not wish to seek discovery at the time with respect to the factual contentions made in those declarations. R.E. at 59. 9 In a Memorandum Order issued on May 17, 1984, Judge Gasch granted defendants' motion for summary judgment. He held section 22-1115 to be "necessary for the protection of the personnel and property of foreign governments located in Washington, D.C." Finzer v. Barry, Civ.Action No. 84-0899, mem. op. at 3, R.E. at 64. He found that the statute served to fulfill American obligations under international law and to protect our representatives abroad, noting that "[f]ew government interests are more compelling." Id. Judge Gasch held therefore that the statute withstood the scrutiny required by the equal protection clause and relied upon the authority of Frend in rejecting the first amendment challenges. II. 10 The appellants in Frend v. United States had been convicted of violating section 22-1115 by demonstrating in front of the Austrian and German embassies. Finding that there was no question that their activities ran afoul of the statute, the Frend court proceeded to examine the statute's constitutionality. 11 The court noted that section 22-1115 was enacted as an exercise of Congress' constitutionally vested authority to "define and punish ... Offenses against the Law of Nations," U.S. Const. art 1, Sec. 8, cl. 10, its purpose being to fulfill the United States' duty under international law "of protecting the residence of an ambassador or minister against invasion as well as against any other act tending to disturb the peace or dignity of the mission or of the member of a mission." 100 F.2d at 692, 693. Limited as the statute was to "public demonstrations calculated to arouse passions and resentments in those governments with which we have official relations," this court held that section 22-1115 was a legitimate and constitutional exercise of congressional authority. Id. at 693. 12 Although Frend is persuasive precedent, we cannot decide this case simply by citing it as the binding law of the circuit. The case was decided almost a half century ago and in the interval the Supreme Court has developed constitutional law in ways that must be taken into account. Appellants challenge section 22-1115 in part on the basis of a hybrid of equal protection and first amendment law that became part of the doctrinal landscape several decades after Frend. Indeed, much of modern first amendment law took shape after Frend was decided. We are compelled, therefore, to reexamine Frend in light of intervening precedent. Upon review, we find much of its analysis still convincing, and the basic holding fully consistent with the constitutional standards that have evolved.2 III. 13 Though it will be necessary in the course of this opinion to meet the multiple charges levelled by appellants and by the dissent upon this minor regulation of demonstrations, the core of this case lies in the relationship between the United States' national interests and international obligations and the first amendment's guarantee of free speech. The question to be determined is whether section 22-1115 achieves a permissible accommodation between the competing claims of these profound constitutional values. A. 14 Section 22-1115 was enacted pursuant to Congress' power, under article I, section 8 of the Constitution, "To define and punish ... Offenses against the Law of Nations." The need for such authority was, of course, one of the reasons a new constitution was desired, and the power was placed among the great powers granted the new government. Implementation of the law of nations by the American government was seen as crucial to the conduct of our foreign relations, a subject of pervasive concern in the Constitution. For that reason, the statute before us, though rooted in Congress' power to define and punish offenses against the law of nations, also draws sustenance from all those provisions of articles I and II that empower the national government, as a whole, to manage American intercourse with other nations. 15 In vesting Congress with the power to define, as well as to punish, offenses against the Law of Nations, article I, section 8 of the Constitution authorized Congress to derive from the often broadly phrased principles of international law a more precise code, as it determined that to be necessary to bring the United States into compliance with rules governing the international community. In enacting section 22-1115, Congress sought to guarantee to foreign diplomats, long understood as "objects of especial respect and protection,"3 the security to which they have always been entitled under legal doctrines accepted and enforced throughout the world. Since the days of Blackstone, "infringement of the rights of ambassadors" have been regarded as one of "the principal offenses against the law of nations." 4 W. Blackstone, Commentaries 68, and for as long as the United States has been a nation, those rights have been recognized to include those that are implicated here--protection from intimidation and the potential of violence, and from assaults on the dignity and peace of the embassy as well. 16 The principle that host states have a special responsibility to ensure that foreign embassies and the personnel inside them are free from threats of violence and intimidation is "solidly entrenched in the Law of Nations." 2 C. Hyde, International Law 1249 (1945). Vattel, one of the first to attempt to codify the Law of Nations, wrote in the eighteenth century that embassies 17 being of such great importance in the universal society of nations, and so necessary to their common well-being, the persons of ministers charged with those embassies are to be held sacred and inviolable among all nations.... This safety is particularly due to the minister, from the sovereign to whom he is sent. To admit a minister, to acknowledge him in such character, is engaging to grant him the most particular protection, and that he shall enjoy all possible safety. It is true, indeed, that the sovereign is bound to protect every person within his dominions, whether native or foreign, and to shelter him from violence: but this attention is in a higher degree due to a foreign minister. 18 Vattel, The Law of Nations 464-65 (1863) (emphasis in original). Vattel went on to note that while an act of violence done to a "private person" was an "ordinary transgression," which the sovereign of the country in which it occurred was free to pardon, a similar act against a foreign ambassador was "a crime of state, an offence against the law of nations," of which the power to pardon was vested in the sovereign "who has been offended in the person of his representative." Id. at 465. The need for special measures to ensure protection is thus a function of both the unique sensitivity of the position and the strength of feeling that may often be aroused against nations which, while perhaps in some respects adversarial to ours, are ones with which we need to maintain diplomatic channels of communication. 19 The duty to safeguard the peace and dignity of the embassy has equally strong roots. Vattel explained: 20 The respect which is due to sovereigns should redound to their representatives, and especially their ambassadors, as representing their master's person in the first degree. Whoever offends and insults a public minister commits a crime the more deserving of severe punishment, as he might thereby involve his country and his sovereign in very severe difficulties and trouble. 21 Vattel, supra, at 463. Thus, the tearing down in Philadelphia in 1802 of the flag of the Spanish minister, "with the most aggravating insults," was considered actionable in the Pennsylvania courts as a violation of the law of nations. 4 J. Moore, Digest of International Law 627 (1906) (quoting letter from Secretary of State Madison to Governor McKean (May 11, 1802)). A complaint by the British government in 1794 concerning a "riot committed by a number of persons tumultuously assembled before the house of a foreign consul, requiring him to deliver up certain persons supposed to be resident with him, and insulting him with improper language," was determined not to be subject to prosecution in the United States only because a consul was not considered a public minister. 1 Op. Att'y Gen. 41-42 (1794). Indeed, Attorney General William Bradford, in 1794, published an opinion in which he noted that the law of libel, when applied "in the case of a foreign public minister, ... is strengthened by the law of nations, which secures the minister a peculiar protection, not only from violence, but also from insult." 1 Op. Att'y Gen. 52 (1794). Accord 1 Op. Att'y Gen. 73 (1794) ("it is usual [for foreign nations] to complain of insults to their ambassadors, and to require the parties to be brought to punishment"). The longstanding principle of diplomatic immunity reflects the same concern. One of the statutes enacted by the First Congress protected ambassadors from arrest and from suit. Any person who sought to prosecute or serve a writ upon an ambassador was subject to up to three years' imprisonment, as were his attorney and any official who sought to execute the writ. Act of Apr. 30, 1790, ch. 9, Secs. 25-26, 1 Stat. 112, 117-18.4 22 It was assumed by the framers and ratifiers of the Constitution that our obligations under international law would be honored. In the course of their rebellion, the American colonies were quick to assure the world that the "law of nations [would be] strictly observed." 14 J. Cont.Cong. 635 (1779). The Continental Congress, lacking meaningful authority, had to content itself with passing a resolution urging the states to provide judicial remedies for infringements of the rights of ambassadors. 21 J.Cont.Cong. 1136-37 (1781). This resolution was apparently ineffective, for Edmund Randolph was later, at the constitutional convention, to identify as one of the defects of the Articles of Confederation that "they could not cause infractions of treaties or of the law of nations, to be punished," and to note as an example that "[i]f the rights of an ambassador are invaded by any citizen it is only in a few states that any laws exist to punish the offender." 1 M. Farrand, The Records of the Federal Convention of 1787, at 19, 25 (1911). In arguing for ratification, John Jay subsequently characterized it as "of high importance to the peace of America that she observe the law of nations." The Federalist No. 3, at 13 (P. Ford ed. 1898). Accord Dickinson, The Law of Nations as Part of the National Law of the United States, 101 U.Pa.L.Rev. 26, 55-56 (1952) ("the Constitution was framed in firm reliance upon the premise, frequently articulated, that ... the Law of Nations in all its aspects familiar to men of learning in the eighteenth century was accepted by the framers, expressly or implicitly, as a constituent part of the national law of the United States"). 23 As we have demonstrated, the framers understood that the protection of foreign embassies from insult was one of the central obligations of the law of nations. See supra, pp. 1455-56. Indeed, the Act of April 30, 1790, which provided for the imprisonment of anyone who sought to bring legal action against an ambassador, see supra p. 1456, was enacted by a Congress that consisted of many of the framers of the Constitution, along with their contemporaries. That Act flatly denied access to the courts, which is a form of petitioning the government, and yet was assumed to be constitutional. As the Supreme Court has shown, it is often instructive to examine the practices at the time of the Constitution's framing as a guide to understanding the meaning of its provisions. See Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). 24 These were among the considerations that motivated the Congress that enacted section 22-1115. These principles were repeatedly invoked during the debate on the Senate floor. Senator Pittman, the sponsor of this provision, commented: 25 I believe that since the beginning of government the inviolability of ambassadors and ministers has been universally recognized in all civilized countries. Even in times of vicious wars special ambassadors from one of the hostile countries to the other have gone without guards, realizing that the honor of the country to which they were going was sufficient to protect their lives and to protect them in the performance of their duties. If this were not so, intercourse between governments would be practically impossible. 26 81 Cong.Rec. 8587 (1937). The issue of the law's constitutionality was the subject of some discussion, and Senator Pittman argued strenuously that there was no constitutional right to do that which was regulated by the statute: 27 --to make an offensive demonstration in front of an embassy or in front of a legation, the residence of a diplomat, who is our guest here, who depends on us wholly for his protection not only against murder, not only against insult, but against any character of annoyance or interference that will bring the hatred of the people of his country against our people. 28 Id. at 8589. 29 The requirements imposed by international law have changed somewhat since the days of Vattel, since the founding of the Republic, and even since the era in which section 22-1115 was enacted. The legal principles embodied in section 22-1115, however, have gained rather than lost force in the intervening years. Article 22 of the 1961 Vienna Convention on Diplomatic Relations, to which the United States is a signatory, sets out duties expected of a host state in regard to the mission premises of foreign nations. It states: 30 1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission. 31 2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. 32 3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution. 33 Basic Documents in International Law 219 (Ian Brownlie ed. 1983) (emphasis added). The principles embodied in the Vienna Convention were for the most part already established under customary international law. According to Leonard Meeker, who as Legal Adviser to the State Department testified in favor of Senate ratification, "[t]he 1961 Vienna Conference examined the articles in the light of modern conditions, surveying the body of law and practice which had developed over the years regarding the rights, duties, and privileges of diplomatic missions" and "recognized the great need for an agreed international standard of treatment." Hearing on the Vienna Convention on Diplomatic Relations Before the Subcomm. of the Senate Comm. on Foreign Relations, 89th Cong., 1st Sess. 2 (1965). 34 Article 22 of the Vienna Convention was derived from draft article 20, which was adopted in 1958 by the International Law Commission. In its commentary on this provision, the Commission stated that the receiving state bore a "special duty," and that it "must, in order to fulfill this obligation, take special measures--over and above those it takes to discharge its general duty of ensuring order." II Yearbook of the International Law Commission 1958 at 78, 95. The Department of State has cited section 22-1115 as the concrete implementation by the United States of its legal obligations under paragraph two of article 22 of the Vienna Convention. Hearing on the Vienna Convention on Diplomatic Relations Before the Subcomm. of the Senate Comm. on Foreign Relations, supra, at 49.5 35 We think it clear beyond quibble that since the founding of our nation adherence to the law of nations, and most particularly that branch of the law that demands security for the persons and respect for the dignity and peace of foreign emissaries, has been regarded as a fundamental and compelling national interest. It is also clear that the founders, who explicitly gave Congress the power to enforce adherence to the standards of the law of nations, which they understood well, saw no incompatibility between this national interest and any guaranteed individual freedom. B. 36 It must not be forgotten that a determination by the political branches concerning the obligations of the United States is also a determination about the conduct of American foreign policy. Defining and enforcing the United States' obligations under international law require the making of extremely sensitive policy decisions, decisions which will inevitably color our relationships with other nations. Such decisions "are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility ...." Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 436, 92 L.Ed. 568 (1948). 37 A number of judicial doctrines embody the "classical deference [owed by courts] to the political branches in matters of foreign policy." Regan v. Wald, 468 U.S. 222, 242, 104 S.Ct. 3026, 3039, 82 L.Ed.2d 171 (1984). For example, the Act of State doctrine, see supra note 4, "concerns the competency of dissimilar institutions to make and implement particular kinds of decisions in the area of international relations," and derives from the "strong sense" that an absence of judicial restraint in that area "may hinder rather than further this country's pursuit of goals both for itself and for the community of nations as a whole in the international sphere." Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423, 84 S.Ct. 923, 937, 11 L.Ed.2d 804 (1964). The political question doctrine requires that courts abstain from cases where there "is found a textually demonstrable constitutional commitment of the issue to a coordinate political department," Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962), foreign affairs exemplifying perhaps the most prominent such commitment. See Goldwater v. Carter, 444 U.S. 996, 1002-06, 100 S.Ct. 533, 536-39, 62 L.Ed.2d 428 (1979) (Rehnquist, J., joined by Burger, C.J., and Stewart and Stevens, JJ., concurring in the judgment). Similarly, the Court has repeatedly characterized immigration policy, "interwoven with ... the conduct of foreign relations," Harisiades v. Shaughnessy, 342 U.S. 580, 588-89, 72 S.Ct 512, 518-19, 96 L.Ed. 586 (1952), as "largely immune from judicial control." Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1477, 52 L.Ed.2d 50 (1977) (quoting Shaughnessy v. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953)). These lines of doctrine are unified by the recognition that there are certain classes of decisions which courts are institutionally less suited to make.6 38 Deference to the judgment of Congress and the President in these matters is, of course, by no means absolute. But this is not a case in which we are asked to believe any implausible thing. It is obvious that ill treatment of ambassadors to the United States will adversely affect the interests of the United States. It is also obvious that the protection accorded those ambassadors by section 22-1115 is a limited one and regulates speech to a very minimal extent. Strictly speaking, it may be doubted whether there is any need for any particular deference to the judgment of the political branches in order to uphold this statute. But if there is such a need, it is amply met. 39 We have here an unusually strong case for judicial deference, over and above the traditional and general requirement of restraint in the area of foreign relations, for we are asked to review a statute which both Congress and successive Presidents have declared to be necessary to fulfill our obligations under both customary international law and a treaty which we have signed. It has long been understood that the interpretation given by the executive branch of the country's responsibilities under the treaties to which it is a signatory are entitled to "great weight." See Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-85, 102 S.Ct. 2374, 2379-80, 72 L.Ed.2d 765 (1982); Kolovrat v. Oregon, 366 U.S. 187, 194, 81 S.Ct. 922, 926, 6 L.Ed.2d 218 (1961). This necessarily shapes the nature of the scrutiny to which we subject the justifications offered for section 22-1115, for in this context a court cannot lightly dispute a determination by the political branches that the statute meets important international obligations, that the interests at stake are compelling, or that those interests cannot be met by a statute with a more narrow reach. When a provision is enacted in order to bring the United States into compliance with international law, and when those obligations are reaffirmed by treaty, a court must give careful consideration before it sets aside that which the legislative and executive branches have deemed necessary to fulfill the nation's international responsibilities. It would be quite improper for the judiciary to disregard international obligations that are inseparable from our nationhood. C. 40 We accept, as highly pertinent to the compelling interests served by section 22-1115, the uncontradicted assertions made in the government affidavits, which describe the sensitive foreign policy concerns the statute implicates. Contrary to the suggestion made by the dissent, we do not uphold the statute "simply because the government has sent its lawyers into court to defend it." Dissent at 1489. The presence of a first amendment claim requires that the court examine the balance struck by the political branches. The deference we owe is not to the government's legal judgment that the statute is constitutional, but to their factual discussion of the nature and depth of the foreign relations interests that are involved. (As we have said, with or without such deference, it is obvious that these interests are genuinely present.) Once we accept that these interests exist, it becomes the responsibility of the court to determine whether they justify the statute before us. 41 The four uncontradicted declarations submitted by defendants below indicate some of the special concerns justifying the unique measures imposed by section 22-1115.7 The two State Department officials cite the Vienna Convention as the source of the international obligation honored by the statute. Declaration of James E. Nolan, Jr., R.E. at 46; Declaration of David Fields, R.E. at 36-37. The Vienna Convention, as we have explained, codified both the responsibility to provide security to foreign embassies and the responsibility to protect them from affront. The affidavits do not explain, nor need they, that it constitutes an affront to display a sign that characterizes members of a government as, for example, "killers." Expert judgment is hardly necessary on such a point. What the affidavits provide is a detailed description of the special difficulties associated with ensuring the security of foreign embassies, and the consequences of failing to do so. 42 Both David Fields--the State Department official responsible for coordinating security arrangements for diplomatic personnel in the District--and James Nolan--Director of the Office of Foreign Missions--attested to the existence of a direct relationship between the perception held by other governments of the strength of security provided their diplomats here and the extent of protection they choose to provide ours. In Nolan's words, "[t]o compromise on the security provided to foreign missions here is to compromise on the security of our personnel in our missions overseas. What happens in terms of security provided to foreign diplomatic personnel and premises here has a direct impact on the protection afforded U.S. missions and personnel abroad." Declaration of James E. Nolan, Jr. at 2, R.E. at 47. Accord Declaration of David Fields at 2, R.E. at 37. These concerns were very much in the mind of Congress when it enacted section 22-1115. Senator Pittman explained that "the motive that actuates us today is to have the foreigners upon whom we must depend for the protection of our citizens friendly to us." 81 Cong.Rec. 8485 (1937). This was echoed by Cordell Hull, then Secretary of State, who urged passage of the statute in a letter to Senator Pittman: "Unless we extend such reasonable protection to representatives of other governments, we cannot hope to receive protection for our representatives abroad." Id. at 8486. Foreign governments may not all be expected to preserve the same equanimity in the face of hostile demonstrations that we require of domestic government. Moreover, foreign governments, not being subject to United States law, particularly constitutional law, as American officials are, have ways of retaliating against American interests and Americans, whether official representatives or private citizens, abroad. 43 As the declarations of the Secret Service agent who heads the Office of Protective Operations, Thomas Quinn, and the Commanding Officer of the Special Operations Division of the Metropolitan Police Department, Deputy Chief of Police John Connor, reveal, there are unique obstacles to providing adequate security to foreign embassies--the most significant of which is the inability of police personnel to establish a presence inside the buildings. The Quinn declaration is worth quoting at length: 44 2. In many respects the obstacles confronting the Secret Service in providing security for foreign embassies, legations and consulates are much greater than those encountered in protecting personnel and property of the United States. At the White House and at the residence of the Vice President, for example, the Secret Service maintains a presence inside the structures which enables it to deploy a defensive network consisting of a number of manned perimeter posts radiating out from a centralized command center. The Secret Service's permanent on-site presence has also facilitated the installation of sophisticated surveillance equipment which enables Secret Service personnel to continuously monitor the area between the building and the fence which surrounds the site. Although the task of insuring the safety of the White House complex and the residence of the Vice President is extremely difficult, it would be impossible were the Secret Service subject to the same legal constraints that control Secret Service operations at foreign embassies, consulates, and legations. 45 3. The structures which house the diplomatic operations of foreign nations provide a tangible focal point to those wishing to demonstrate against the policies of the foreign government. Recent events underscore the fact that demonstrations near embassies or other official foreign government buildings, even if initially peaceful, exacerbate tensions and often lead to violent confrontations between the police and demonstrators. However, in contrast to the White House and other official buildings of the United States, Secret Service personnel are prohibited by international law and comity from entering onto the premises of a foreign embassy, legation, or consulate except with the expressed prior approval of the foreign government. Consequently, at such locations, the Secret Service has no centrally located defensive command center, has a minimal amount of intrusion detection equipment at its disposal, and, perhaps most important, has no secondary or fall-back defensive position which would otherwise be available if the Secret Service were permitted to position personnel inside the protected premises. 46 Declaration of Thomas D. Quinn at 2-3, R.E. at 42-43. The 500-foot buffer therefore provides "a necessary zone for police response in those instances when the perimeter is breached." Declaration of John C. Connor at 2, R.E. at 49.8D. 47 It has long been understood that the right to demonstrate may be made to depend in part on the site of the protest. The Supreme Court has upheld the constitutionality of laws regulating protests in front of a courthouse on the basis of the State's "legitimate interest in protecting its judicial system from the pressures which picketing near a courthouse might create." Cox v. Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 479, 13 L.Ed.2d 487 (1965). It has upheld the application of a general trespass statute to demonstrations at jails, jails having been "built for security purposes." Adderley v. Florida, 385 U.S. 39, 41, 87 S.Ct. 242, 244, 17 L.Ed.2d 149 (1966). It has upheld the exclusion of political candidates from military bases, the function of military bases being "to train soldiers" rather than host political events. Greer v. Spock, 424 U.S. 828, 838, 96 S.Ct. 1211, 1217, 47 L.Ed.2d 505 (1976). And it has upheld the regulation of expressive activity near a school when such activity might disturb the educational activities inside. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Each of these cases makes clear that the nature and extent of first amendment rights may vary with the location at which their exercise is sought. 48 Appellants offer extensive analogies to prior cases involving protests in front of the White House, the Capitol, and the Supreme Court, but the regulations in those cases simply did not implicate the same set of interests addressed by section 22-1115. First, shielding government officials from public protest is incompatible with our democratic structure, which relies on public criticism as a means of promoting responsive government. Foreign ambassadors, in contrast, have no similar obligation to be accessible to public attack, and our polity does not have the same interest in ensuring that they are. Second, we cannot ignore the fact that American diplomats living overseas are always to some degree at risk. The perception abroad that our government is diminishing the protection accorded the embassies to whom we are host would, we are told, seriously compound that risk. Finally, and most fundamentally, we face here a question of living up to our obligations under international law and a treaty. These considerations distinguish the issues presented here from those involving protests in front of the White House, the Capitol, and the Supreme Court. 49 Section 22-1115, then, is a statute supported by a compelling governmental interest and one which imposes only a very minor geographic limitation on speech. It is impossible for us to see how the compelling interest at stake could be served with a regulation that had any significantly smaller impact on speech. 50 The statute that Congress has crafted proscribes an opposition demonstration only within a narrowly defined locus. Plaintiffs are free under section 22-1115 to hold an anti-Soviet demonstration anywhere in the city but within 500 feet of the Soviet Embassy. Appellants presumably feel that the embassy location would generate heightened visibility and best help them succeed in getting their message across. But the first amendment does not guarantee an optimal setting for speech; there is no right to the backdrop most interesting to press photographers or television cameramen. See Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298 (1981); Adderley v. Florida, 385 U.S. at 47-48, 87 S.Ct. at 247-48; White House Vigil for the ERA Committee v. Clark, 746 F.2d 1518 at 1520, 1538 (D.C.Cir.1984). Inevitably, many of the most desirable places to demonstrate will be buildings and areas that for other reasons require special protective measures. We think Congress has met an unusually difficult problem with a balanced attempt to restrict no more speech than necessary.9 51 The obligations of the United States under international law, reaffirmed by treaty, do not, of course, supersede the first amendment. Neither, however, has it ever been suggested that the first amendment is incompatible with the United States' most basic obligations under the law of nations. The two must be accommodated and section 22-1115 accomplishes an accommodation well within the range of the permissible. That may be seen by imagining a shift of the balance in either direction. Were we to hold that the first amendment requires Congress to allow protests and demonstrations up to the gate of an embassy, there would be very little left of the United States' international obligation to preserve the peace, dignity, and security of foreign representatives in our nation's capital. Peace and dignity would be destroyed outright, while, as a practical matter, the task of repulsing invasions of the embassy and its grounds would be left largely to the foreign nation's security forces. Violence between American citizens and foreign security forces in Washington, D.C., is hardly calculated to improve relations between governments or to be thought by the international community to be an adequate discharge of America's international obligations. If, on the other hand, Congress tried to protect foreign representatives from all affronts, it would have to rule off limits all utterances anywhere tending to bring foreign governments into disrepute. That, of course, is unthinkable. The first amendment would have been destroyed over wide areas in the name of international law. What has been done through section 22-1115 is to give first amendment freedoms the widest scope possible consistent with the law of nations. Appellants, and all other Americans, may freely express their sentiments about the actions of the Soviet Union and Nicaragua on radio and television, in print, by speech or placard, and they may do so anywhere in the United States, but they may not carry the described placard or congregate within 500 feet of the embassy of the nation concerned. To regard that trifling limitation, enacted under a power explicitly given by the Constitution, as a threat to freedom of speech seems to us a considerable exaggeration. E. 52 The dissenting opinion offers a number of objections to our analysis. At this point we undertake to respond to the related arguments that the statute serves no compelling governmental interest, that it is both overinclusive and underinclusive, and that it is unconstitutional because there is a less restrictive alternative available. We think that these arguments are not only defective but that, in an important respect, the first and the third contradict one another. 53 The dissent regards the interest in maintaining our nation's adherence to longstanding principles of international law as not compelling. In the dissent's view, that interest is so far from compelling that, aside from providing an initial source of authority for the congressional enactment, the law of nations does not bear at all on the question of that enactment's constitutionality. This line of attack requires the dissent to trivialize the compelling national interests that are reflected in international law. When these interests are given their appropriate weight, however, the dissent's constitutional argument--which is premised on its utter rejection of those interests--is revealed as beside the point. 54 The dissent's analysis appears to rest on the assumption that this court must either hold that international law "supersede[s]" constitutional requirements (as we are charged with doing, dissent at 1482), or conclude that international law is irrelevant and conduct the analysis as if no principle of international law were present (as the dissent does). Both propositions would be incorrect. 55 If international law were, as the dissent views it, just another code of rules, like the common law of negligence or statutory law governing commercial transactions, it would of course offer little that need be weighed against a constitutional provision. As a matter of formal description, leaving aside the real interests in play, it is true that in the American legal hierarchy, the Constitution trumps all other law. But it is also true, as the dissent systematically overlooks, that other law sometimes expresses values and concerns that are of legitimate constitutional dimension. In such cases, the assertion that the Constitution cannot be overridden by ordinary law is true but analytically empty. As we have tried to make clear, international law in the aspect dealt with here is important not in the merely formal sense just described but because it embodies American interests that are themselves given weight in the Constitution and that must, for that reason, find accommodation with the first amendment. Those interests have to do with the place of the United States among nations, with the respect it is accorded, with the raising or lowering of tensions between our country and others, with the conduct of our foreign policy, primarily by the President but also in some measure by Congress in ways specified by the Constitution, and, in extreme cases, with war and peace. When, in the considered judgment of the branches charged by the Constitution with the responsibility for these matters, a minor regulation of picketing is necessary to preserve the peace and dignity of foreign emissaries, it is preposterous to say that no interest is present that courts need to respect and weigh. 56 While the dissent appears to concede that "the nature of an embassy and our responsibilities as international hosts do weigh in the balance as to what is permissible regulation of free speech in that particular place," dissent at 1483, it chooses to ignore completely the definitions given those responsibilities by Congress, the President, and codified and customary international law in favor of its own. One reads the dissent's analysis of the dignity interest in vain for a hint that any such responsibilities are involved here. Dissent at 1485-87. The dissent rejects this interest on the basis of a generalization--people ought not be shielded from speech they find distasteful--that has never been applied in this context, as if the context were irrelevant. Any "weighing" the dissent has done is invisible. We think the founders would have been quite surprised to learn that the document in which they constituted the government precludes the enactment of a statute to honor one of the core principles of the law of nations because that interest is not "compelling." 57 The dissent also employs an all-or-nothing theory of compelling governmental interests to argue, so far as one can tell, that the United States must either abandon any attempt to protect the peace and dignity of foreign embassies or impose nationwide censorship over all modes of expression that might conceivably insult any foreign government. Dissent at 1481 - 82. The dissent notes that the government has never sought to ban all conceivable affronts to foreign governments, and concludes from this that America's international obligation is "flexible," id. at 1485, thus not compelling, and hence, in effect, constitutionally non-existent. Going to the other extreme, the dissent wonders how, if section 22-1115 is supported by a compelling governmental interest, the ban can be so limited. The dissent implies that our analysis would support a nationwide suppression of any criticism of foreign governments, which the dissent finds "worrisome." Id. at 1487. The Vienna Convention specifically requires protection of embassy premises, not of foreign sensibilities about what is printed in American newspapers. But that fact aside, the dissent's is a startling mode of constitutional analysis: faced with a spectrum between competing constitutional values, a court must override one value completely and take the other to its extreme. A court faced with the competing constitutional demands of fair trials and press freedom could resolve the issue, apparently, only by prohibiting any press reports of any criminal proceedings or by throwing the entire process open, even to the extent of allowing television cameras into the deliberations of the grand and petit juries. Either result would be absurd. We can uphold, for example, a decibel limit applied to soundtrucks without fear that the same rationale--preserving the public peace--would equally well support the silencing of all speech everywhere. The everyday business of judging is the exercise of judgment, of balance, of accommodation, not the announcement that no value may be admitted into the calculus which, if carried to its extreme and applied without regard to competing values, would produce an unacceptable result. 58 The dissent challenges also our holding that the statute is sufficiently tailored, and concludes that the regulation is both overinclusive and underinclusive. However, its discussion measures the statute only against the interest in security, having eliminated the interest in peace and dignity from the analysis. Since we have shown that this second interest is valid as well, we need express no judgment on whether the security interest, standing alone, would be sufficient to justify the constitutionality of section 22-1115. 59 The dissent argues in addition, however, that even if the statute were adequately tailored it would be unconstitutional because there exists a less restrictive alternative: a statute barring all demonstrations within five hundred feet of an embassy. It seems somewhat odd to describe an alternative that restricts more speech as "less restrictive." While there certainly is more involved in the examination of alternatives than simply "comparing the number of syllables that are uttered" under each, dissent at 1493, an alternative statute that restricts every exercise of expression regulated by the statute before us and other, presently unregulated, speech activities as well, is not (whatever other virtues it may possess) a less restrictive alternative.10 60 The dissent takes an unwarranted step when it concludes that section 22-1115 is unconstitutional because a broader time, place, or manner regulation would be constitutionally acceptable and would accomplish the same ends. While Congress is free to enact such a statute, it need not do so.11 Under the dissent's theory, the law upheld in Cox v. Louisiana, which prohibited picketing near a courthouse "with the intent of influencing any judge, juror, witness, or court officer," ought to have been struck down because the local government was free to ban all picketing near a courthouse. The law in Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310, which forbade adult theatres from locating within 1,000 feet of other adult theatres, ought to have been invalidated because such a restriction could lawfully have been applied, and therefore could only lawfully have been applied, to all theatres. The dissent's position requires as well that we regard the unpublished order issued by a panel of this court (Judges Wright, Leventhal and Robb) in Jackalone v. Andrus, No. 79-2359 (D.C.Cir. Nov. 19, 1979), as wrong. In Jackalone, we "accept[ed] the representation of the State Department that a demonstration at Lafayette Park has an unacceptable potential for danger to the hostages now being held in the American Embassy in Tehran," and upheld its prohibition. Id. While that order, being unpublished, is not precedent, we think it instructive to note that the dissent's analysis would have required that the prohibition on demonstrations relating to the Iranian situation that was upheld in the order be voided, with the government allowed to choose only between permitting the demonstration or banning all demonstrations in that area.12 61 The dissent's analysis thus reads a grave threat to liberty in every statutory distinction related to the purpose of the statute, and inexorably leads to a requirement of a total ban within the proscribed area. This would present a new element in first amendment jurisprudence--a "most restrictive alternative" doctrine. The cure suggested is far broader than the problem. One supposes that Father Finzer, if he won his case on such a ground, might reasonably consider his victory Pyrrhic. Nothing is solved by such a "solution." 62 The dissent's assertion that it would be constitutional to prohibit all demonstrations near embassies--an assertion necessary to its claim that the present statute is unconstitutional because there exists a "less restrictive" alternative--undercuts another key premise of its argument because it cannot be squared with the dissent's rejection of any valid interest in protecting the peace and dignity of embassies. As the dissent agrees, a law prohibiting a lone protester carrying a sign of any sort bears no relation to safeguarding the physical security of the building and its occupants. Dissent at 1488. The only conceivable interest that would support such a restriction of speech is that of dignity and peace. The dissent admits as much when it states that its proposed total ban "would provide greater protection from the dangers to both dignity and security than the current regulation does." Dissent at 1495. The dissent's endorsement of the constitutionality of such a statute is a recognition, therefore, that political speech near an embassy poses a special problem that is of constitutional magnitude, and that problem is the one the dissent elsewhere denigrates, the need to maintain the peace and dignity of foreign emissaries. The dissent thus necessarily concedes implicitly what it denies explicitly. 63 The dissent compounds its analytic difficulties by suggesting (without explanation) that this interest, while not "compelling," might be "significant" and that it therefore would justify a statute that is content-neutral but not one that is content-based. Dissent at 1496 n. 23. The dissent never reveals the process by which it calibrates these standards, so there is no way of knowing why the interest in honoring international obligations, and the foreign policy concerns implicated by those obligations, rise so far and no further. Certainly there is nothing in the dissent's analysis of the dignity interest that provides the answer. That discussion, as we have noted, approaches this interest by completely abstracting it from the international context in which it arises, and rejects our holding that it is compelling simply by noting that individuals may not be "shield[ed] ... from hearing things they find offensive," when that offensiveness is based "on the fact that the audience disagrees." Id. at 1485-86. 64 There are at least two answers to this truism. The first is that the proposition was designed for members of the American political community. They may not be shielded from speech with which they disagree because the competition of ideas is central to our democratic process. That rationale has nothing to do with giving offense to a foreign ambassador. The dissent never addresses this point. It merely notes that public criticism of foreign governments may affect the domestic political debate. While the assertion is true, it does nothing to salvage the dissent's challenge to the interest in preserving the peace and dignity of the embassy, since that challenge is grounded in the principle that there is no legitimate interest in shielding listeners from speech they find offensive. The identity of the listener is relevant to the question of when this principle applies. 65 The second answer is that, were it applicable here, the proposition advanced would make it impossible to sustain the dissent's position. The interest in shielding people from political speech with which they disagree is neither compelling nor important nor legitimate, and cannot justify a statute enacted for that end even if, in order to make it more constitutionally palatable, the legislature bans favorable speech at the same time. If the serious and substantial foreign policy concerns we have described are not present, then a content-neutral statute passed in order to forestall critical speech (by banning all speech) would be unconstitutional. If, as we believe, and as the governmental branches entrusted with judgment on these matters have asserted, these concerns are in fact deeply implicated, they are quite clearly compelling. IV. 66 We turn now to the challenge presented by appellants, which is in some respects quite different from that made by the dissent. For obvious reasons, the appellants do not suggest that prohibiting their demonstration would be permissible as long as others are prohibited as well. While they urge upon us several distinct grounds for reversing the decision below, they too emphasize the issues of content and viewpoint discrimination. As we have explained, the first provision of the statute they seek to invalidate applies only to demonstrations in which signs are displayed that are designed to bring a foreign government into "public odium" or "public disrepute." Their legal challenge relies heavily on this element of the statute as the root of its constitutional infirmity, raising claims grounded in the first amendment guarantees of free speech and assembly and the fourteenth amendment guarantee of equal protection. 67 Content-based restrictions have been held to raise both first and fourteenth amendment claims because in the course of regulating speech, they differentiate between types of speech. Compare Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (exclusion of religious speech from public forum violates first amendment right of free speech) with Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (exemption of labor picketing from ban on picketing near schools violates fourteenth amendment right of equal protection). Under either theory, such a statute is valid only if "necessary to serve a compelling state interest and ... narrowly drawn to achieve that end." Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983); accord Carey v. Brown, 447 U.S. 455, 461-62, 100 S.Ct. 2286, 2290-91, 65 L.Ed.2d 263 (1980). 68 Appellants do not concede that this is the relevant test. Instead, they point to language in Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), and Regan v. Time, 468 U.S. 641, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984), which might seem to suggest a total ban on content-based restrictions of any sort. Were appellants correct, first amendment law would have been revolutionized. The Court, it would have to be supposed, has overruled subsilentio New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (heightened protection accorded writings about "public figures"), Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) (upholding obscenity regulation), and Chaplinsky v. New Hamsphire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (upholding prohibition of use of "fighting words"), as well as a host of other decisions too numerous to mention here. No such upheaval has taken place. In Mosley, the Court invalidated a city ordinance that prohibited all picketing within one hundred and fifty feet of a school, except peaceful labor picketing of any school involved in a labor dispute. Although the opinion in Mosley contains dicta suggesting that content-based restrictions are "never permitted," 408 U.S. at 99, 92 S.Ct. at 2292, the Court in that case in fact conducted the traditional analysis and determined that the statute in question was not sufficiently tailored to its objectives. Id. at 100-101, 92 S.Ct. at 2292-93. Were content-based restrictions automatically unconstitutional, that discussion would have been unnecessary. In Regan v. Time, the Court found unconstitutional a statutory scheme which made it a crime to photograph securities or obligations of the United States unless "for philatelic, numismatic, educational, historical, or newsworthy purposes," 18 U.S.C. Sec. 504 (1982), finding that a determination of newsworthiness or educational value was necessarily content-based. The government defendants, however, had declined to defend the constitutionality of the content-based regulation as written, arguing that the provision in question was not in fact mandatory. 468 U.S. at 649 n. 5, 104 S.Ct. at 3267. Although the majority opinion includes the assertion that "[r]egulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment," id. at 648-49, 104 S.Ct. at 3267 the absence of the traditional balancing analysis can likely be attributed to the refusal of the government to put forward any governmental interest served by the provision as written for the Court to balance. We note that in a case decided after Regan, this court declined to adopt the extreme view urged by appellants here and reaffirmed the continuing validity of the "narrowly tailored to compelling state interest" test. White House Vigil for the ERA Committee v. Clark, 746 F.2d 1518, 1526 n. 66 (D.C.Cir.1984). 69 Appellants argue alternatively that even if content-based restrictions are generally subject to a balancing test, section 22-1115 is not. They point out that this statute represents not only content discrimination, but viewpoint discrimination as well. While a prohibition of, for example, all political speech near an embassy would be a content-based restriction arguably subject to the standard described above, a prohibition of speech that brings a foreign government into disrepute is a viewpoint-based restriction that appellants contend is per se unconstitutional. They maintain that the fact that the statute is viewpoint-discriminatory, "standing alone," renders it invalid, Reply Brief for Plaintiffs-Appellants at 1-2. This is presumably why they characterized the declarations submitted below by defendants as "not relevant nor material to any issue involved in this case." Brief for Plaintiffs-Appellants at 58. 70 We do not think the law is more severe with respect to viewpoint-based restrictions than it is to content-based restrictions. Although some academic commentators have urged that there be different tests for those content-based restrictions that are viewpoint-neutral and those that are not,13 the Supreme Court has maintained a uniform standard. See Carey v. Brown, 447 U.S. at 462 n. 6, 100 S.Ct. at 2291 n. 6. Indeed, the suggestion that a statute which is not viewpoint-neutral is automatically invalid was put to rest in Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), which upheld the constitutionality of laws prohibiting members of the armed forces from making speeches which "bring discredit upon the armed forces," 10 U.S.C. Sec. 934 (1982).14 71 Statutes that regulate speech in ways that affect different viewpoints differently may well be less likely to be upheld than statutes which affect all viewpoints equally, but that is simply because there are fewer situations that justify differentiation according to the speaker's viewpoint. The standard for justification remains the same.15V 72 We stated in Part III our holding that the interests which section 22-1115 was enacted to serve are indisputably compelling. Appellants have not seriously contested that point, although neither have they conceded it. Their argument is rather that regardless of the importance of the statute's ends, the means it establishes are unconstitutionally vague, standardless, facially overbroad, and discriminatory. We now take up each set of claims in turn. A. 73 The issue of vagueness requires no lengthy discussion. Whatever ambiguity may exist at the fringes, section 22-1115 applies clearly and directly to the activities in which the parties who brought this action wish to engage. The complaint they filed made precisely that admission: "[P]laintiffs wish peacefully to carry banners, placards, signs and devices which depict messages critical of foreign governments, and their acts and policies. They wish to do so on the public streets and sidewalks in the District of Columbia, within 500 feet of the official buildings of the foreign governments whose acts and policies they intend to criticize." Complaint at 3-4, R.E. at 6-7. There is no ambiguity, therefore, in the statute's application to the conduct primarily at issue. See Young v. American Mini Theatres, 427 U.S. 50, 58-59, 96 S.Ct. 2440, 2446-47, 49 L.Ed.2d 310 (1976) (holding it "unnecessary" to consider vagueness challenge to an ordinance "unquestionably applicable" to the parties before the Court). 74 Nor in any event is section 22-1115 unconstitutionally vague. With this statute, as with virtually all statutes, it is undoubtedly the case that a skilled legal "imagination can conjure up hypothetical cases in which the meaning of these terms will be in nice question." American Communications Association v. Douds, 339 U.S. 382, 412, 70 S.Ct. 674, 690, 94 L.Ed. 925 (1950). Nevertheless, its language is straightforward. As this court has previously observed, "[s]ection 22-1115 meticulously specifies the consequences against which it erects protection for foreign governments." Zaimi v. United States, 476 F.2d 511, 526 (D.C.Cir.1973). Both demonstrators and law enforcement officers are given a clear description of the activity the statute proscribes, and there is no reason to believe that a substantial amount of conduct outside its scope is being deterred. Section 22-1115 defines the offense "with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement," Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983), and that is all that is required. B. 75 Appellants challenge that portion of section 22-1115 which forbids congregating within five hundred feet of the official buildings after police authorities have ordered dispersal on the ground that the provision does not contains standards defining when such orders can be given. They cite only one case in support of this argument--Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). They assert that Shuttlesworth is "dispositive," because section 22-1115--like the statute struck down in Shuttlesworth--confers "absolute discretion" on city officials to prevent a public demonstration. Brief for Plaintiffs-Appellants at 53. The dissent agrees with this argument, and finds controlling our decision in United States v. Abney, 534 F.2d 984 (1976) (per curiam). We disagree; the statutes are more different than they are similar, and their differences are constitutionally relevant. The statute in Shuttlesworth governed all demonstrations taking place in the public streets of Birmingham. Demonstrators were required to obtain a permit from the city, which could be denied if the relevant commission determined "in its judgment [that] the public welfare, peace, safety, health, decency, good order, morals or convenience" so required. 394 U.S. at 149, 89 S.Ct. at 937. The regulation in Abney required anyone wishing to sleep, camp or loiter in Lafayette Park for more than four hours to obtain a permit from the Superintendent. The final clause of section 22-1115, in contrast, governs only the sensitive areas surrounding foreign embassies and other such official buildings. It establishes no permit procedure applicable to all demonstrations, but authorizes policemen who are on the scene to order dispersal. 76 We find unconvincing the dissent's argument that procedures requiring permits, such as those invalidated in Shuttlesworth and Abney, are constitutionally indistinguishable from the police discretion involved here. Police have always possessed authority to require people to move when a statute supplies the criteria that guide and confine police discretion. This court upheld two such statutes granting police discretion no broader than that given by section 22-1115 in Washington Mobilization Committee v. Cullinane, 566 F.2d 107 (D.C.Cir.1977). Section 22-1121(2) of the District of Columbia Code, provides: 77 Whoever, with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby--.... 78 (2) congregates with others on a public street and refuses to move on when ordered by the police; 79 shall be fined not more than $250 or imprisoned not more than ninety days, or both. 80 This statute requires the police to judge what constitutes a breach of the peace and what circumstances may lead to a breach of the peace, judgments of the same nature as those required by section 22-1115. Additionally, Article VI, Sec. 5a of the District's police regulations, known as the Police Line Regulation, authorizes a police officer to clear an area of the size he considers "necessary" for a variety of purposes when fires, accidents, etc., or "other occasions cause or may cause" persons to collect. Every person "shall comply with any necessary order or instruction of any police officer."16 This court, in reversing the district court's invalidation of the regulation as allowing "unfettered discretion," pointed out that it could not be known in advance what would be necessary on particular occasions so that "the regulation's definition of the scope of police discretion in functional terms is reasonable, and ... meticulous specificity is not required." 566 F.2d at 119. 81 The case before us is equally clear. The authority to disperse is given by a statute that has specific purposes. The authority may be exercised, therefore, only when the police reasonably believe that a threat to the security or peace of the embassy is present. The dissent would not suggest, we are confident, that a court would sustain a conviction under this statute or refusal to disperse upon a policeman's order if the policeman had acted out of personal malice, to prevent the sidewalk sale of neckties, or in order to interrupt what he suspected to be a conversation contemplating the sale of drugs. It is not a question of requiring proof of an "abuse of power" before voiding this provision. Dissent at 1499. We do not believe the provision grants police the power to disperse for reasons having nothing to do with the nearby embassy. In a word, the purposes of the statute supply the necessary criteria just as much as a "breach of the peace" ordinance does. The dissent refers to this as a "narrowing" construction, dissent at 1497, but we think it is simply the most plausible construction, one following the unexceptional principle that statutes are construed in light of the purposes behind their enactment. The dissent insists upon giving the statute the most expansive construction conceivable, one unrelated to the legislative purpose. We can see no reason for doing so, aside from the fact that it is easier to attack the inflated version. The discretion given by section 22-1115, being cabined by the statute's purposes, is no broader than essential and is, therefore, constitutionally permissible.17 C. 82 Appellants next contend that the statute is overbroad, and sufficiently so to require facial invalidation. The overbreadth doctrine in first amendment law has taken a number of different forms, none of which provides grounds for sustaining appellants' facial attack. 83 First, overbreadth constitutes an exception to traditional rules of standing, an exception applicable only in first amendment cases. Litigants to whom a statute is constitutionally applied cannot generally seek its invalidation because it infringes the rights of hypothetical individuals not before the court. In order to avoid the chilling effect of an overbroad regulation of speech, however, such a challenge will be permitted under the first amendment. See, e.g., Schaumburg v. Citizens for Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). 84 Second, when the overbreadth of a statute is substantial with reference to its "plainly legitimate sweep," Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973), and a narrowing construction is unavailable, facial invalidation will be in order. Overbreadth thus serves as both a jurisdictional doctrine and as a substantive doctrine of first amendment law. In such cases, the fact that some of the activity regulated may constitutionally be subject to restrictions is insufficient to save the statute. See, e.g., Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). 85 Third, where the party challenging the statute is himself engaged in protected speech which the overbroad statute seeks to punish, a court will follow the more traditional practice--invalidate the statute to the extent that it reaches protected conduct, while leaving the remainder intact. In such instances, the Court leaves in force that portion of the statute that regulates activity in a constitutionally permissible manner. See, e.g., Brockett v. Spokane Arcades, Inc., --- U.S. ----, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). 86 While appellants regard their own planned activities as protected, they do not offer any limiting construction to this court. They seek instead a facial invalidation on grounds of overbreadth. The Supreme Court has characterized the facial invalidation of a statute because of overbreadth as "manifestly, strong medicine," to be employed "sparingly." Broadrick v. Oklahoma, 413 U.S. at 613, 93 S.Ct. at 2916. The Court has therefore held that "particularly where conduct and not merely speech is involved, ... the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Id. at 615, 93 S.Ct. at 2917. When the central requirement of substantiality is met, it is often because the statute contains a fundamentally illegitimate predicate for government action, or was premised on an unsupported assumption that purported to tie its means to its ends. For example, in Coates v. Cincinnati, the Supreme Court struck down a city ordinance forbidding three or more persons from assembling on a sidewalk and conducting themselves "in a manner annoying to persons passing by." 402 U.S. at 611, 91 S.Ct. at 1686. The statute was overbroad because, while many annoying activities--such as disturbance of the peace--could constitutionally be regulated, "mere public intolerance or animosity cannot be the basis" for such a law. Id. at 615, 91 S.Ct. at 1689. In Schaumburg v. Citizens for a Better Environment, an ordinance prohibiting street solicitations by charitable organizations that did not use at least 75% of their receipts for "charitable purposes" was invalid because--despite the fact that some of these organizations were undoubtedly subject to regulation--the percentage figure was not a relevant measure of the integrity of the organization, or the threat it posed to public safety or residential activity, which were the interests asserted to be at stake. 444 U.S. at 636, 100 S.Ct. at 835. In such cases, what renders a statute's overbreadth substantial is that the error taints the entire provision--the statute "in all its applications directly restricts protected First Amendment activity and does not employ means narrowly tailored to serve a compelling governmental interest." Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 965-66 n. 13, 104 S.Ct. 2839, 2851-52, 81 L.Ed.2d 786 (1984) (emphasis added). Even when all its applications are not so tainted, a statute may be substantially overbroad when its potential for application to protected activity overwhelms its potential for application to unprotected activity. 87 Our analysis is guided by Broadrick v. Oklahoma, in which the Court explained: 88 [T]he plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from "pure speech" toward conduct and that conduct--even if expressive--falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect--at best a prediction--cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. 89 413 U.S. at 615, 93 S.Ct. at 2917 (emphasis added). 90 Appellants have not made anything like the showing of substantial overbreadth needed to justify a facial invalidation. They argue that the statute is overbroad because 91 [i]t prohibits any form of peaceful expression by any member of the public who displays a sign designed to disagree with a foreign government's views. It goes so far as to prohibit anyone with an anti-Soviet lapel button from walking within 499 feet of the Soviet Embassy. 92 Brief for Plaintiffs-Appellants at 50-51. 93 Any statute that sets clear limits--and so avoids the charge of vagueness--will be subject to this sort of overbreadth attack. It might be noted that the statute does not apply when someone with an eight-foot, anti-Soviet sign stands 501 feet from the Soviet Embassy. The only cure for the kind of overbreadth appellants complain of would be a statute that carefully correlated the size of signs and lettering with the permissible degree of distance from the Embassy. The person wearing the lapel button might be allowed to go up to ten feet from the property while the person with the eight-foot sign might not be allowed within a thousand feet. The first amendment does not require such a complex and difficult-to-police sliding scale. Congress has made a reasonable attempt to balance the interests protected by the first amendment and the combined interests of United States foreign policy and obligations under international law. The balance struck is, as it should be, favorable to first amendment interests. 94 In addition to the need to ensure security, the other requirement imposed by the Vienna Convention--the maintenance of the peace and dignity of the embassy premises--is clearly contained within section 22-1115's "plainly legitimate sweep," and demonstrations, even those by lone protestors, may threaten fulfillment of that obligation without necessarily posing a threat of violence. Appellants thus offer us no real basis on which to conclude that section 22-1115 is overbroad or substantially so.18 D. 95 Appellants have offered one further argument meriting discussion--that the content-based restriction itself is not narrowly tailored to serving the interests at stake and is therefore unconstitutional.19 Were we to accept this argument, we would have to strike the statute in its entirety. We can imagine other statutes, however, in which the element of content discrimination would be more neatly severable--statutes, for example, which exempt narrow categories of speech from regulations otherwise universally applicable.20 In such instances, if the court were to strike only the element of discrimination and leave a flat and neutral prohibition in place, it would be narrowly tailoring the statute by broadening its application--a peculiar outcome, but one that would end the equal protection problem. We note this anomaly to illustrate the potential clash between the first amendment doctrines of overbreadth and equality. As a legislature narrows a statute to ensure that no more speech is regulated than is absolutely necessary, it begins differentiating among types of speech activities. A total prohibition, in contrast, is the most neutral statute of all. 96 The differentiation at issue in this case is easy to justify. This statute was enacted in order to protect foreign embassies from the potential of violence, and threats to its peace and dignity, and to enhance the security of our own diplomats and citizens overseas. Demonstrations called to express support for foreign governments in front of their embassies simply do not threaten these interests. Congress was not obliged to regulate such demonstrations for the sake of symmetry, and its decision not to do so does not disable it from regulating demonstrations that do threaten these interests. It is precisely because this statute is narrowly tailored that it contains a content-based restriction. The content-based portion of section 22-1115 is thus tailored to serve two compelling interests simultaneously--it regulates expressive conduct that may threaten to undermine American compliance with international law and the safety of foreign and American diplomats, while leaving unregulated expressive conduct that does not. It would turn overbreadth analysis on its head to maintain that Congress is required to regulate more speech than necessary. 97 There is some force to the argument that a broad regulation which affects all speech equally raises fewer constitutional problems than one which regulates less aggregate speech but discriminates while doing so. At the very least, they raise different problems. However, the fundamental concern underlying the disfavored status accorded content-based restrictions is not implicated by section 22-1115. There is no "preferred view" the government is seeking to promote, nor a minority view it seeks to suppress. In fact, there is no single point of view targeted at all; under the most reasonable interpretation of the statute, see supra note 18, what is prohibited in front of the East German Embassy is permitted in front of the West German one, and vice versa.21 We therefore do not find the distinction embodied in section 22-1115 troublesome, although it is indisputably content-based. A principle of international law that shields embassies from various forms of hostile activity is itself necessarily content-based. In order to protect the safety, peace and dignity of foreign embassies, Congress need not prohibit speech activities that it deems do not implicate such concerns, any more than a locality that wished to prohibit the shouting of "Fire!" in a crowded theatre would be constitutionally required to outlaw the shouting of "Encore" as well.22VI. 98 The dissent's apocalyptic version of what is at stake here requires that we once more attempt to place this case in realistic perspective. The dissent argues as though the statute before us attempted the general suppression of entire categories of speech rather than merely preventing the offering of political insult within the immediate vicinity of a foreign embassy. The placard provision of the statute involves only the latter and, for that reason, the dissent's extensive quotations about the central role of the first amendment in our national life are, to say the least, disproportionate. This is simply not a statute that threatens "our free speech birthright," the "silencing of Americans in their views," the "distort[ion of] the marketplace of ideas," or the "mutilat[ion of] 'the thinking process of the community.' " Dissent at 1477, 1487, 1490. The excitement generated by such rhetoric is quite spurious in the context of the 500-foot radius in which this regulation operates. 99 The dissent objects to section 22-1115 on the ground that it bars only the carrying of hostile placards and not of supportive placards within 500 feet of an embassy. The ground for this objection is that the narrower prohibition distorts the marketplace of ideas by allowing the presentation of one side only. 100 This objection is entirely theoretical; indeed, if the word may be used in a pejorative sense, it is merely academic. There simply is not and never has been a problem with carriers of supportive placards. More to the point, there is not and never has been political debate about the merits of foreign governments and their policies within 500 feet of their embassies. The dissent's argument conjures up a picture of rival speakers at podiums before the Nicaraguan embassy while the nation watches. There is simply no reality in that picture. The debate about Nicaragua is carried on in innumerable fora in Washington and across the nation but no such debate has entered the marketplace of ideas and our nation's political process from the area bounded by a radius extending 500 feet from 1627 New Hampshire Avenue, N.W. If preventing Finzer from displaying a sign critical of the Sandinistas at that address has mutilated the thinking process of the community, the effect has not been noticeable. 101 In response, the dissent makes reference to the anti-apartheid demonstrators who have picketed the South African Embassy this last year, and to the significance of their protest in shaping the public debate. Dissent at 1499-1500. It is difficult to know what point the dissent seeks to make with this example. The "less restrictive" alternative favored by the dissent would have prohibited those demonstrations as thoroughly as section 22-1115. The question is whether the public debate has in any way been warped out of shape because these demonstrations are prohibited and some wholly imaginary supportive demonstrations are not. To state the question is to answer it. VII. 102 While we hold therefore that section 22-1115 is constitutional, we remand to the district court with instructions to make factual and legal findings with respect to one further issue. The Complaint and Declarations below contained allegations of incidents in which police officers, claiming to be enforcing section 22-1115, prevented some of the appellants from engaging in activity which section 22-1115 plainly does not proscribe. For example, Finzer claims to have been prevented from kneeling on the sidewalk directly in front of the Soviet Embassy to pray silently, Declaration of Father R. David Finzer at 2, R.E. at 16, and Brooker describes an occasion in which she was told she could not stand in front of the Soviet Embassy "to say the Lord's Prayer." Declaration of Bridget Brooker at 2, R.E. at 22. The record does not reveal the context in which these incidents took place, but we note that the first part of section 22-1115 applies only when a protestor is carrying a sign of some sort, and the second part applies only when a congregation of people has been ordered to disperse. See Zaimi v. United States, 476 F.2d 511 (D.C.Cir.1973). If neither of these conditions applied, then the appellants were wrongfully prevented from conducting their protest. While the District of Columbia Corporation Counsel has indicated that appellants will not be prosecuted for such activity, Defendants' Statement of Material Facts in Dispute, R.E. at 34, we have no similar statement before us from the Office of the United States Attorney in Washington, D.C., which also has prosecutorial jurisdiction over these matters. If section 22-1115 has been interpreted to prohibit conduct that is in fact clearly beyond its scope, a declaratory judgment prohibiting official interference with activities outside its proper reach would be appropriate. VIII. 103 We wish to reiterate, in conclusion, the special circumstances that surround the provision whose constitutionality we have upheld. It represents an exercise by Congress not simply of the police power, but of its authority and responsibility under the Constitution to impose upon citizens what it understands to be the obligations required by international law. It does not eliminate any point of view from our political discourse, but sets aside the space immediately surrounding foreign embassies as an area free from hostile protest. The unique restrictions imposed are justified by the unique interests that are at stake, interests which include the safety of American personnel living abroad in a time in which international incidents provide regular reminders of the precariousness of their position. We think Congress acted within its authority when it required that these demonstrations take place elsewhere in the District. We therefore affirm the constitutionality of section 22-1115, and remand this case to the district court for a determination of whether the local authorities have exceeded the scope of their statutory authority. 104 It is so ordered. WALD, Chief Judge, dissenting: 105 Perhaps no two national interests engender so much deserved passion as the security of our citizens at home and abroad and the freedom of these same citizens to speak out on issues of public importance. Recent times have, unfortunately, taught us that we cannot always have a full measure of both. But even within the shadow of treachery and terrorism, we must not too hastily surrender our free speech birthright to phantom national security interests and international obligations. We must at the least demand reasonable proof that genuine issues of security or treaty obligations are implicated. The survival of our most cherished freedoms in time of trial requires that courts carefully scrutinize the strength of competing foreign relations and free speech interests and ensure that the "delicate balance" is rightly struck. 106 Everyone involved in this case is all too cognizant of the dangers right now facing our embassies abroad and the embassies of foreign sovereigns in our own country. I would be reluctant to challenge the validity of a 100 or even a 500 foot ban on picketing or demonstrating in front of an embassy based on genuine security concerns. That is not, however, what is involved in this case. This case involves the discriminatory application of a ban to some demonstrators but not others, based not on the need to protect the embassy's security but on the more amorphous need to prevent affronts to the "dignity" of the embassy. 107 I realize, too, that we must inevitably defer to the superior knowledge and responsibilities of the political branches of our government on the risks involved in certain courses of conduct in foreign affairs. But I am equally convinced that we must adamantly protect free speech and the right to express political dissent, not just about our own country's but about other countries' policies. Debate over such essential matters must not be unnecessarily restricted, particularly if there is no offsetting gain to security at home and abroad. To permit fears of irrational behavior by others to so dominate our thinking that we do not insist on proof that substantial restrictions on free speech are in fact required by "national interests and international obligations," maj. op. at 1455, presents risks to our basic freedoms that are more deadly than any terrorists' blows. 108 A painstaking assessment of the plaintiffs' facial attack on the constitutionality of this statute leads me to conclude that parts of it violate the first amendment. The majority makes an eloquent case for upholding the statute in its entirety because Congress1 and the executive, the branches charged with protecting foreign countries' presence here and our own citizens abroad, have approved it. It is inappropriate, the majority argues, for the judiciary to scrutinize too severely the decision of those branches that this particular law is "necessary to fulfill our obligations." Maj. op. at 1459-60 Summing up its case for superdeference, the opinion concludes that 109 a court cannot lightly dispute a determination by the political branches that the statute meets important international obligations, that the interests at stake are compelling, or that those interests cannot be met by a statute with a more narrow reach. 110 Id. 111 The majority's warning is intimidating but, like much of the free speech/national security debate, assumes that a choice rather than an accommodation must be made between the two goals. Although the majority rightly identifies the core issue in this case as the need to strike a permissible accommodation "between the United States' national interests and international obligations and the first amendment's guarantee of free speech," maj. op. at 1455, the only accommodation it recognizes as legitimate is that struck by Congress or the executive. It is too willing, in my view, to sacrifice first amendment freedoms to the generality of political decisionmaking in the area of foreign affairs without carefully inquiring whether international obligations and national security concerns are really implicated at all, and if they are, whether the statute fulfills those interests with the least amount of intrusion into cherished constitutional rights. 112 Thus, the fatal flaws I see in the statute and in the District Court's decision summarily upholding it have nothing to do with the degree of deference we must give to the assessments of the other branches on matters of foreign affairs. Rather, they involve quintessentially legal judgments about accommodating one aspect of the Law of Nations, relating to "appropriate" safeguarding of an embassy's "dignity," with the dictates of first amendment law, already established in Supreme Court decisions. I am, to paraphrase a recent Supreme Court pronouncement on deference in the context of foreign affairs, 113 cognizant of the interplay between [this case] and the conduct of this Nation's foreign relations, and [I] recognize the premier role which both Congress and the Executive play in this field. But under the Constitution, one of the judiciary's characteristic roles is to interpret [that document], and [I] cannot shirk this responsibility merely because our decision may have significant political overtones. 114 Japan Whaling Association v. American Cetacean Society, --- U.S. ----, ----, 106 S.Ct. 2860, 2865, 92 L.Ed.2d 166 (1986). There is still room for the courts to levy "severe scrutiny" before upholding a law which on first glance looks like a classic, textbook example of prohibited viewpoint discrimination and unbridled police discretion. 115 D.C.Code Sec. 22-1115 suffers from numerous constitutional infirmities. Section I sets out the standards that are used in analyzing content-based speech restrictions and establishes that the majority's reliance on the Law of Nations does not alter those standards in any significant way. Section II reviews the interests that the government relies on to justify the statute, and concludes that the only "compelling" interests involved in this case are those related to security; protecting the "dignity" of embassies, unless it can be directly tied into a security interest, cannot justify a content-based distinction. Section III tests the statute against the D.C. government's asserted security interest, and demonstrates that the statute is both fatally overinclusive and underinclusive. Moreover, even if its fit with those security interests were tighter, its viewpoint discrimination would still be constitutionally unjustifiable since a viewpoint-neutral regulation is readily available that would advance legitimate security interests in a manner far less restrictive of free speech values. Finally, Section IV turns to the second clause of the statute and concludes that its vesting in police officers of standardless discretion to disperse a congregating group is facially unconstitutional. I. THE APPROPRIATE STANDARD OF SCRUTINY A. Content-Based Distinctions 116 "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Department v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289, 33 L.Ed.2d 212 (1972). Unlike content-neutral time, place, or manner restrictions where the government has a relatively light burden to carry in justifying regulation, the government has an exceptionally heavy burden to bear when it seeks to justify a content-based restriction on speech. See Regan v. Time, Inc., 468 U.S. 641, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984); Widmar v. Vincent, 454 U.S. 263, 270, 102 S.Ct. 269, 274, 70 L.Ed.2d 440 (1981); Police Department v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). The government must demonstrate that the statute "is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). As part of the "necessary" and "narrowly drawn" inquiries, the government must show that "no adequate alternative" exists that would be less restrictive of speech.2 Carey v. Brown, 447 U.S. 455, 465, 100 S.Ct. 2286, 2292, 65 L.Ed.2d 263 (1980). See also Gay Student Services v. Texas A & M University, 737 F.2d 1317, 1331 (5th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1860, 85 L.Ed.2d 155 (1985); Frumer v. Cheltenham Township, 709 F.2d 874, 877 (3d Cir.1983). In short, whenever the government has regulated speech on the basis of content, the Court has applied the "most exacting scrutiny," Widmar, 454 U.S. at 276, 102 S.Ct. at 277 "to determine whether there is any method of achieving the state's ... purposes ... which has a lesser effect on protected expression." Tacynec v. City of Philadelphia, 687 F.2d 793, 798 (3d Cir.1982), cert. denied, 459 U.S. 1172, 103 S.Ct. 819, 74 L.Ed.2d 1016 (1983). 117 There is no doubt that D.C.Code Sec. 22-1115 is a content-based statute.3 It prohibits only demonstrations involving signs4 that hold the foreign government up to public odium or disrepute, while allowing signs that do not. In their briefs and arguments before this court, "[n]either appellees nor amicus dispute[d] the fact that Sec. 22-1115 is a content based act." Brief for Amicus Curiae United States of America at 16. The majority recognizes this.5 See maj. op. at 1475.B. The Law of Nations 118 Before proceeding to analyze the "compelling" interests advanced by the D.C. government in support of the statute, I will address the linchpin in the majority's rationale for upholding the statute: that the United States has a special duty under the customary Law of Nations and Article 22 of the Vienna Convention on Diplomatic Relations "to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity." 23 U.S.T. 3227, 3237, T.I.A.S. No. 7502; see maj. op. at 1457. The opinion cites Senator Pittman, the sponsor of Sec. 22-1115, as relying on the Law of Nations for the obligation of a host country to protect a foreign embassy against not only physical invasion but "an offensive demonstration ... not only against insult, but against any character of annoyance or interference that will bring the hatred of the people of his country against our people." See maj. op. at 1457. 119 Senator Pittman's rhetorical protectorate is a tall order indeed and, if taken literally, would include a ban against offensive editorials in the local newspapers as well as critical citizens parading in front of the embassy. The Vienna Convention is, after all, not limited to the "premises" of the embassy but prohibits any "impairment of its dignity," see supra at 1481, presumably referring to the dignity of a nation or its officials, not a building. Yet it is quite clear that the Law of Nations embodies no such requirement. The United States government has often cited the constitutional limitations on its ability to curtail freedom of expression in response to complaints by foreign embassies of insult or annoyance by American citizens. In the 1930s, the Constitution was invoked to fend off requests by the German government to stop the showing of an anti-Hitler film in Chicago and to prevent a mock trial of Hitler from taking place in Madison Square Garden. In 1941, the Egyptian prime minister complained to the United States about an article in Foreign Affairs calling the King of Egypt a "quisling," but was mollified by our government's explanation that it could do nothing but apologize since its Constitution contains guarantees of freedom of the press. M. Whiteman, 5 Digest of International Law 160-62, 168 (1965). 120 Our government has similarly invoked the first amendment in response to complaints of insult stemming from protected activities in the vicinity of foreign missions and consulates. When, in 1958, the Soviet delegation to the United Nations complained about a demonstration in front of its building, the United States declined to take action, explaining that it could not "associate itself with any attempts to abrogate the constitutional rights of residents of the United States to gather in peaceful assembly and to express their beliefs and convictions." M. Whiteman, supra, Vol. 7 at 385 (1970). Several years later, the United States again rebuffed a Soviet complaint, contending that no principles of international law were violated when a synagogue across the street from the Soviet mission erected a plaque pointedly referring to "the cry of the oppressed ... Jewish Community in the Soviet Union." Id. at 384. More recently, in 1979, the United States refused to act when the Soviets complained about demonstrations near their San Francisco consulate, noting that the protest was peaceful and legal under 18 U.S.C. Sec. 112. M. Nash, Digest of United States Practice in International Law 674 (1979). 121 Under the majority's broad brush analysis of the relationship between the Law of Nations and the first amendment, the United States probably could and indeed should have taken all of the requested actions. Its refusal to do so suggests that its officials entertain, as I do, serious doubts about "the framers['] underst[anding] that the protection of foreign embassies from insult was one of the central obligations of the law of nations." Maj. op. at 1457.6 At a minimum, these tolerated insults and annoyances visited upon foreign diplomats by United States citizens clearly illustrate that our government's obligations under the Law of Nations are not as rigidly circumscribed as Senator Pittman and the majority would have us believe. The mere fact that the United States' obligation is flexible does not, of course, mean that it is not compelling, cf. maj. op. at 1465, but does indicate that first amendment interests can be accommodated under the Law of Nations without imposing the constitutionally dubious strictures of Sec. 22-1115. 122 The reasonableness and flexibility of the Law of Nations is further illustrated by the quite temperate language of Article 22 of the Vienna Convention, the obligations of which are purportedly fulfilled in part by Sec. 22-1115. Article 22 provides only that governments have a "special duty" to take "appropriate" steps to protect the peace and dignity of the mission. 23 U.S.T. 3227, 3237, T.I.A.S. No. 7502. The commentary on the draft of this Article states that "in order to fulfill this obligation [a government must] take special measures--over and above those it takes to discharge its general duty of ensuring order." M. Whiteman, supra, Vol. 7 at 373 (1970). There is nothing in this language to indicate that consideration of what is "appropriate" should not encompass consideration of what is constitutional. See infra at 1485 & n. 10. 123 Article I, Sec. 8 of the Constitution enumerates the areas within which Congress is generally authorized to act. As part of an extensive list, clause 10 provides that Congress has the power "[t]o define and punish ... Offences against the Law of Nations." Congress certainly may draw on Article I's Law of Nations clause for its general authority to enact D.C.Code Sec. 22-1115. But that being said, the Law of Nations does not answer the question of whether Congress, in enacting some of the provisions of Sec. 22-1115, has violated the first amendment's provision that "Congress shall make no law ... abridging the freedom of speech." The Law of Nations clause, like the commerce clause or any other source of congressional authority, can be exercised only subject to express limitations found elsewhere in the Constitution. 124 Indeed, the majority opinion, after a nine-page discourse on the Law of Nations, finally recognizes this ultimate legal truth and concedes that "[t]he presence of a first amendment claim requires that the court examine the balance struck by the political branches," maj. op. at 1460, although only after admonishing that the examination must be conducted with superdeference to the conclusions of the political branches. The majority's attempt to lean so heavily and for so long on the Law of Nations to justify a statute that it implies might otherwise violate the first amendment is constitutionally troublesome, to say the least. See maj. op. at 1462 (the issue in this case is fundamentally "a question of living up to our obligations under international law and a treaty"). 125 The Supreme Court has made clear that principles of international law and treaties cannot supersede our Constitution. In Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), the Court explained that "[i]f our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes." Id. at 14, 77 S.Ct. at 1229. The Court found it "obvious" that "no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution." Id. at 16, 77 S.Ct. at 1230. See also Geofroy v. Riggs, 133 U.S. 258, 267, 10 S.Ct. 295, 297, 33 L.Ed. 642 (1890), ("It would not be contended that [the treaty power] extends so far as to authorize what the Constitution forbids."). Similarly, the most recent Restatement of Foreign Relations Law explains that "rules of international law and provisions of international agreements of the United States are subject to the Bill of Rights and other prohibitions, restrictions or requirements of the Constitution and cannot be given effect in violation of them." Restatement of Foreign Relations Law Sec. 131 comment a (Tent. Final Draft, July 15, 1985); see also L. Henkin, Foreign Affairs and the Constitution 251-54 (1972). 126 While invocation of congressional authority to punish offenses against the Law of Nations cannot override the first amendment, the concerns embodied in the Law of Nations can be evaluated to determine whether they rise to the level of "compelling interests" which warrant narrowly tailored restrictions on free speech. Just as "the nature and extent of first amendment rights may vary with the location at which their exercise is sought," maj. op. at 1462, the nature of an embassy and our responsibilities as international hosts weigh in the balance as to what is permissible regulation of free speech in that particular place. See L. Henkin, supra, at 254 ("One may expect that the national interest in war and peace and even lesser concerns of foreign relations would have important weight in any balance."). Contrary to the majority's suggestion, I do not "overlook[] that other law sometimes expresses values and concerns that are of legitimate constitutional dimension." Maj. op. at 1464. I examine both the dignity and security interests protected by the Law of Nations. See infra at 1484-87. 127 The Law of Nations, standing alone, does not, however, constitute an automatic "compelling interest" which justifies any limitation on free speech in the vicinity of embassies. Because I do not believe there is a compelling interest to weigh here, I fail to see how my analysis can be characterized as an "all-or-nothing" approach to first amendment balancing of "competing constitutional values." Cf. maj. op. at 1465. Simply because an interest is recognized in the compendious Law of Nations does not confer upon it the status of a compelling interest that must override any other constitutional guarantee. To say that it does would be to recognize de facto the Law of Nations as superior to the Constitution--a result which has been soundly rejected by the Supreme Court. We would agree, I presume, that no law could forbid black persons from demonstrating in front of embassies of countries that officially practice segregation on the grounds that it would "insult" them or be offensive to their dignity. 128 A treaty, like any other statute, represents Congress' assessment of the national interest. In reviewing both treaties and statutes against first amendment challenges, the court may not simply defer to that congressional judgment. To the contrary, the Supreme Court has instructed that the defender of any such law or regulation restricting free speech, be it of congressional or state origin, has the affirmative burden of proving its constitutionality. See Philadelphia Newspapers, Inc. v. Hepps, --- U.S. ----, 106 S.Ct. 1558, 1564, 89 L.Ed.2d 783 (1986). Legislative enactments of content-based speech restrictions have always been subjected to more severe scrutiny than other laws. In these supersensitive first amendment areas, the mere fact that Congress passed the act in the first place simply does not weigh in so heavily as it does in other kinds of constitutional inquiries. Resort to the Law of Nations cannot short-cut the arduous process of constitutional adjudication that requires a careful assessment of the particularized justification for any law that impinges free speech as severely as this one does. We must ask whether the abridgement is truly "necessary" to attain a compelling interest, and even if it is, whether it has been crafted in a way to restrict as few fundamental rights as possible. On this record, both questions must be answered with a resounding "No." II. THE ASSERTED INTERESTS 129 The D.C. government asserts that D.C.Code Sec. 22-1115 serves two separate compelling interests: first, it directly protects the security of foreign embassies and thereby it indirectly protects the security of our own embassies in foreign countries. Second, it helps preserve foreign embassies' dignity by shielding them from the insult of demonstrations that hold their governments up to public odium or disrepute. Our task is to decide whether these asserted interests are sufficiently compelling to justify overriding the free speech interests of citizen demonstrators. A. Security Interest 130 Our government has a unique and compelling interest in maintaining security for foreign embassies in Washington and in making efforts to increase the security of United States embassies abroad. Accordingly, statutory prohibitions must be upheld if they can be shown to be directly tied to these security interests7 and properly crafted to advance these interests with minimal restrictions on free speech. Such security interests have been held to be important enough to justify content-neutral restrictions on speech in the vicinity of embassies and missions. CISPES v. FBI, 770 F.2d 468, 472-75 (5th Cir.1985); Concerned Jewish Youth v. McGuire, 621 F.2d 471, 474-76 (2d Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1352, 67 L.Ed.2d 337 (1981). But the majority and I agree that the security interest cannot justify much of the content-based statute before us. See infra at 1487-90. Hence, we must look to some other interest which may serve to explain the statute's prohibitions. The government asserts that its interest in preserving the "dignity" of the embassies so qualifies. B. "Dignity" Interest 131 It is not at all apparent that the D.C. government's asserted interest in preserving foreign embassies' "dignity" is a compelling interest capable of overriding the constitutional guarantee of free speech. The courts in CISPES and Concerned Jewish Youth relied solely on security interests to affirm content-neutral speech prohibitions in the vicinity of consulates and missions, making no reference to the dignity interest asserted here. The majority nonetheless accepts, without question or analysis, the government's assertion that the statute is valid because it protects foreign embassies from the "insult" of being exposed to signs that oppose their governments' policies. The majority's calculus is that (a) since preservation of the dignity of embassies is required by the Law of Nations and (b) since the sign restriction is somehow related to the preservation of the dignity of the embassies, then (c) the sign restriction passes constitutional muster.8 132 The majority's reasoning grossly misstates the relevance of the Law of Nations to this case. While the Law of Nations does impose some obligation to protect the dignity of foreign embassies, that obligation is flexible and does not require protection from all insult, especially at the expense of constitutional guarantees. See supra at 1481-82. In enacting protection for foreign emissaries outside the District of Columbia, for example, Congress has managed to fulfill its obligations to protect the dignity and security of foreign officials through the use of criminal penalties punishing harassment and through other content-neutral restrictions.9 See 18 U.S.C. Sec. 112 (1982). Certainly the Law of Nations does not have a special District of Columbia provision imposing extra duties on host governments here.10 133 I cannot accept the majority's conclusion that the preservation of an embassy's dignity is such a compelling interest that it can justify the content-based restriction on speech embodied in this statute. Settled first amendment principles establish that shielding listeners from hearing things they find offensive or politically distasteful is not an interest capable of supporting suppression of protected speech. Even crude, vile, or sexually explicit speech may not generally be forbidden because of its communicative impact. See Bethel School District No. 403 v. Fraser, --- U.S. ----, 106 3159, 3164, 92 L.Ed.2d 549 (1986) ("use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point"); Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 71-72, 103 S.Ct. 2875, 2882-83, 77 L.Ed.2d 469 (1983) (rejecting "offensiveness" interest even where less protected, commercial speech is involved); Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971) ("The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is ... dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner."); Coates v. City of Cincinnati, 402 U.S. 611, 615, 91 S.Ct 1686, 1689, 29 L.Ed.2d 214 (1971) ("Our decisions establish that mere public intolerance or animosity cannot be the basis for abridgment of these constitutional freedoms."). 134 How much stronger the impediment when the offensiveness of the speech is based on the fact that the audience disagrees with the political message of the speaker. See Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 1365, 22 L.Ed.2d 572 (1969). As the Supreme Court has recognized, 135 a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute ..., is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. 136 Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131 (1949). So precious is our freedom of speech that courts have felt compelled to protect politically oriented exercises of free speech as offensive, and potentially inflammatory, as Nazi marches and Ku Klux Klan rallies. See Collin v. Smith, 578 F.2d 1197 (7th Cir.) (Nazi rally in Skokie, Illinois), cert. denied, 439 U.S. 916, 99 S.Ct. 291, 58 L.Ed.2d 264 (1978); Knights of Ku Klux Klan v. East Baton Rouge Parish School Board, 578 F.2d 1122 (5th Cir.1978) (Ku Klux Klan rally). The Supreme Court has held that the first amendment even requires states to tolerate advocacy of the use of force or of law violations except "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969) (emphasis added); see also Hess v. Indiana, 414 U.S. 105, 108, 94 S.Ct. 326, 328, 38 L.Ed.2d 303 (1973) (per curiam). 137 The government nonetheless asks us to break new doctrinal ground here and to recognize a compelling interest in shielding foreign emissaries from speech which they find offensive because of its political content.11 The majority asserts that because foreign officials have no obligation to be accessible to public protest or to participate in the clash of ideas central to our democratic process, the general ban against censoring unpopular speech is inapposite here. Maj. op. at 1462, 1467. I disagree. This key first amendment principle is based on the need to protect the rights of the speaker and so its application does not generally turn on the type of listener involved.12 Furthermore, there can be no clear-cut division between foreign and domestic political debate--limiting speech addressed to foreign embassies will inevitably affect the competition of ideas in the United States. Current anti-apartheid protests in front of the South African embassy are very much a part of the domestic political debate about appropriate United States responses to the South African regime. 138 The notion that the Law of Nations permits or requires silencing of Americans in their views on foreign governments' policies to avoid assault on the dignity of the embassy is too radical a departure from recognized first amendment principles to be accepted on the D.C. government's or the majority's say-so. If the protection of a foreign emissary's dignity is as compelling an interest as the majority believes, how can the ban on criticism be limited to an area within 500 feet of an embassy? Surely if the dignity interest is so compelling, and its compelling nature is evaluated under the majority's superdeferential standards, there is nothing to prevent suppression of insulting speech in many other forms and locations. These worrisome implications of the majority's dignity rationale make this truly a case about "the general suppression of entire categories of speech rather than merely preventing the offering of political insult within the immediate vicinity of a foreign embassy." Maj. op. at 1476. 139 Only if the District can show some interest that transcends the foreign government's sensitivity to insult in response to peaceful picketing would the first amendment allow suppression of political expression by American citizens. That interest could logically only be threats to the security of the embassy and its personnel or a threat of retaliation to our citizens and embassies abroad. III. CUSTOM TAILORING 140 In addition to showing that any content-based restriction on speech is supported by a compelling governmental interest, the government must also demonstrate that the restriction is not only narrowly tailored to achieve that interest, but is the least restrictive alternative available. See supra at 1479-80. The statute "in issue here is fatally overinclusive in some respects and fatally underinclusive in others." Erznoznik v. City of Jacksonville, 422 U.S. 205, 218, 95 S.Ct. 2268, 2277, 45 L.Ed.2d 125 (1975) (Douglas, J., concurring). The statute is overinclusive because no compelling interest in maintaining security has been shown to justify a prohibition on signs; it is underinclusive because a prohibition directed solely to anti-embassy speech cannot be justified when pro-embassy speech is likely to pose many of the same security risks. Moreover, even if the statute's viewpoint-discriminatory restriction were demonstrably related to the proffered security interests, the only constitutionally acceptable solution would be to create a viewpoint-neutral time, place, or manner restriction, i.e., relegating both pro- and anti-foreign government viewpoints to a forum outside of the 500 foot zone. A. Overinclusiveness 141 As discussed in Section II, the only compelling interest that could justify the free speech restriction of this statute is security. However, while the second clause of the statute--the congregating prohibition--is readily recognizable as a security measure, there is no evidence whatsoever in the record to support on security grounds the restriction of the first clause, which allows demonstrators within 500 feet of the embassy provided that they do not hold signs that hold the embassy's government or officers up to "public odium" or "public disrepute." 142 The State Department affidavits assure us that "not all demonstrations are prohibited under section 22-1115. Vigils or protests which do not involve the use of placards or banners, and leafletting when the handout is not facially 'odious' are allowed so long as the demonstrators do not congregate within the '500 foot' perimeter." See Affidavit of Deputy Chief John C. Connor, J.A. at 51 (discussing candlelight vigil that was deemed permissible); Defendants' Statement of Material Facts as to Which There is No Genuine Issue, point 7. Nothing in the record explains how or why this restriction on certain kinds of signs is related to the government's interest in maintaining embassy security. There is, for example, no claim, as there certainly was in White House Vigil for ERA Committee v. Clark, 746 F.2d 1518 (D.C.Cir.1984), that the sign restrictions are necessary to preserve visibility for security reasons or to prevent their use as weapons. Id. at 1532-34. The majority admits that "a law prohibiting a lone protester carrying a sign of any sort bears no relation to safeguarding the physical security of the building and its occupants. The only conceivable interest that would support such a restriction of speech is that of dignity and peace." Maj. op. at 1467.13 143 Since I do not believe that this statute can be upheld merely because it protects embassies from insult, the only constitutionally acceptable justification for upholding the controversial sign provisions of the statute is that countries offended by hostile demonstrators might turn face and refuse to protect our embassies or citizens abroad.14 Indeed, the majority repeatedly hammers home this appalling spectre. Yet it is worth noting that none of the affidavits provided by the State Department and Secret Service representatives ever assert a direct link between our protecting foreign embassies from insult and the security of our foreign citizens abroad.15 See, e.g., Affidavit of James E. Nolan, Jr., Director of the Office of Foreign Missions, Department of State, J.A. at 47 ("what happens in terms of security provided to foreign diplomatic personnel and premises here has a direct impact on the protection afforded U.S. missions and personnel abroad") (emphasis added). 144 Thus, while the record before us supports to some degree the proposition that lessening the security of foreign embassies in this country might have adverse repercussions on our embassies abroad, there is not one word of evidence regarding what might happen if we allow marchers in front of the embassy to carry signs that hold the foreign government up to "public odium." Speculation could as easily run either way: that any reduction in the level of tranquility or good will around the embassy might lead to repercussions on our embassies abroad; or that given the government's contention that foreign governments closely scrutinize our policies regarding their embassies, and respond in an "eye for an eye" fashion, the only consequence that might ensue is that our own embassies would be subjected to "insult" signs by other countries' citizens.16 The point is, of course, that mere speculation is not sufficient at least where there is no obvious relationship between the insult suffered from unsympathetic signs held in front of an embassy here and foreign governments' significant retaliation against our citizens abroad. If any disagreeable gesture to a foreign government is sure to turn into such retaliation, we are already endangering our nonresident citizens' lives by permitting embassy demonstrators at all, regardless of the presence or absence of signs. The silence of the record on this point belies any contention that there is a nexus between exposure to signs that disagree with a foreign government's policy and enhanced risk to Americans in that foreign country. Some affirmative evidence must surely be required to justify an explicitly content-based restriction on free speech. 145 The majority scrupulously fails to scrutinize the evidence actually submitted to the trial court to see whether it supports the D.C. government's claim that the sign provision is narrowly enough tailored to serve the compelling interests of national security. According to the majority, "[t]he four uncontradicted declarations submitted by defendants below indicate some of the special concerns justifying" D.C.Code Sec. 22-1115. Maj. op. at 1460. Far from "indicating" "some" of the concerns, the affidavits constituted the entire evidentiary record which the District Court had before it in deciding whether summary judgment was appropriate, and not one word in any of them documents or even predicts adverse effects if we were to allow insulting signs in front of embassies. Elementary rules of civil procedure dictate that summary judgment should not have been granted in the absence of any evidence indicating that the ban on signs was necessary to protect embassy security at home or abroad. 146 We cannot uphold the statute simply because the government has sent its lawyers into court to defend it. It is our job to demand facts and evidence to show that the asserted justification really exists. As the Supreme Court has explained, a reviewing court's duty in first amendment cases is "to make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression." Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843, 98 S.Ct. 1535, 1543, 56 L.Ed.2d 1 (1978). Virtually all first amendment cases involve "delicate" issues, and many implicate foreign relations. See, e.g., New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam) (rejecting government's attempt to restrain publication of Pentagon Papers on national security grounds). Yet, none of these landmark first amendment cases suggests the hands-off approach that the majority now uses to justify virtual abdication of judicial responsibility to closely scrutinize first amendment abridgements of pure political speech. See supra at 1484 n. 8. B. Underinclusiveness 147 When the government makes a distinction based on the content of speech, it must demonstrate that this distinction is a close fit to its asserted interests. It is true that the Supreme Court 148 frequently has upheld underinclusive classifications on the sound theory that a legislature may deal with one part of a problem without addressing all of it. See, e.g., Williamson v. Lee Optical Co., 348 U.S. 483, 488-89, 75 S.Ct 461, 464-65, 99 L.Ed. 563 (1955). This presumption of statutory validity, however, has less force when a classification turns on the subject matter of expression. "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Dept. of Chicago v. Mosley, 408 U.S., at 95, 92 S.Ct. at 2289. Thus, "under the Equal Protection Clause, not to mention the First Amendment itself," id., at 96, even a traffic regulation cannot discriminate unless there are clear reasons for the distinctions. 149 Erznoznik v. City of Jacksonville, 422 U.S. 205, 215, 95 S.Ct. 2268, 2275, 45 L.Ed.2d 125 (1975). 150 The Court's treatment of content-based distinctions, which in many ways resembles its treatment of disfavored classifications such as race under the equal protection clause, is based on the proposition that such classifications are inherently suspicious and even dangerous, in and of themselves. Thus, content-based distinctions require a far stronger showing of narrow tailoring than more neutral classifications. Even a cursory analysis of the nature and effect of content distinctions reveals why. 151 First, "when regulation is based on the content of speech, governmental action must be scrutinized more carefully to ensure that communication has not been prohibited 'merely because public officials disapprove the speaker's views.' " Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980) (quoting Niemotko v. Maryland, 340 U.S. 268, 282, 71 S.Ct. 325, 333, 95 L.Ed. 267 (1951) (Frankfurter, J., concurring)). Especially when the "purported concern [is] to avoid controversy excited by particular groups," distinctions "may conceal a bias against the viewpoint advanced by the excluded speakers." Cornelius v. NAACP Legal Defense and Educational Fund, Inc., --- U.S. ----, 105 S.Ct. 3439, 3455, 87 L.Ed.2d 567 (1985). 152 Moreover, content-based restrictions and, to an even greater extent, viewpoint-based restrictions distort the marketplace of ideas by allowing only one side of the debate to speak at the chosen forum. "[B]ecause by effectively excising a specific message from public debate, they mutilate 'the thinking process of the community' and are thus incompatible with the central precepts of the First Amendment," such statutes are not tolerated save in the most exceptional circumstances. Stone, Content Regulation and the First Amendment, 25 Wm. & Mary L.Rev. 189, 198 (1983) (quoting A. Meiklejohn, Political Freedom 27 (1960)). 153 Given these special concerns, underinclusiveness is not so readily acceptable in laws embodying content-based distinctions. The fact that the law fails to address the entire problem "undercut[s] the asserted importance of the government interest said to support the restriction." Id. at 206; see Carey v. Brown, 447 U.S. 455, 465 & n. 9, 100 S.Ct 2286, 2292 n. 9, 65 L.Ed.2d 263 (1980) ("overinclusiveness and underinclusiveness of the statute's restriction ... undermine [state's] claim that the prohibition ... can be justified by reference to the State's interest in maintaining domestic tranquility"). See generally Karst, Equality As a Central Principle in the First Amendment, 43 U.Chi.L.Rev. 20 (1975). 154 Examination of D.C.Code Sec. 22-1115 and its purported security justifications reveals that it is indeed severely underinclusive. The statute prohibits demonstrations with signs that disapprove of the embassy government's position, but allows demonstrations with signs that support it. Yet, the government's own affidavit lends support to the view that violence can as easily erupt from an "initially peaceful" demonstration as from an openly hostile one. Affidavit of Thomas D. Quinn, Special Agent in Charge in the Office of Protective Operations of the United States Secret Service, J.A. at 42. No affidavit suggests that demonstrations including signs of one viewpoint are more prone to outbreaks of violence with the police or other members of the public. Thus, there is no ground in this record for the majority's conclusion that demonstrations expressing support for an embassy's position "simply do not threaten" the interests of the foreign government in avoiding violence and maintaining its dignity. Maj. op. at 1474-75. Imagine demonstrators carrying signs in front of the South African Embassy announcing, "We Support Apartheid." Surely they would engender as much potential for violence and indignity as signs reading, "We Condemn Apartheid." Would a 1939 Nazi demonstration in front of the German Embassy with signs praising the Third Reich threaten the peace less than demonstrators decrying that regime?17 155 Moreover, even if documented, the argument that pro-embassy views are less dangerous than anti-embassy ones has no constitutional acceptability. It was soundly rejected in Mosley, where the city argued that "although it permits peaceful labor picketing, it may prohibit all nonlabor picketing because, as a class, nonlabor picketing is more prone to produce violence than labor picketing." 408 U.S. at 100, 92 S.Ct. at 2292. The Supreme Court disagreed, and instead laid down the rule that: 156 Predictions about imminent disruption from picketing involve judgments appropriately made on an individualized basis, not by means of broad classifications, especially those based on subject matter. Freedom of expression, and its intersection with the guarantee of equal protection would rest on a soft foundation indeed if government could distinguish among picketers on such a wholesale and categorical basis. "[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Tinker v. Des Moines School District, 393 U.S. 503 at 508, 89 S.Ct. 733 at 737, 21 L.Ed.3d 731. 157 Mosley, 408 U.S. at 100-01, 92 S.Ct. at 2292-93. Similarly here, the mere prediction that anti-government demonstrations are likely to create more of a security threat than pro-government demonstrations is simply too broad a proposition to justify a classification on the basis of viewpoint like the one enshrined in Sec. 22-1115. 158 C. Neutrality As the Least Restrictive Alternative 159 Finally, and most fundamentally, the statute could not pass constitutional scrutiny even if the fit between the content-based classification and the government's asserted compelling interest in security were neat or even if one accepted the majority's tenuous "dignity" justification. The Supreme Court's first amendment decisions instruct that the government has a duty, when it adopts a content-based restriction on speech, to show that it is the least restrictive means possible to accomplish a compelling interest. See supra at 1479-80. That showing cannot be made here where a valid content-neutral time, place, or manner restriction is an available alternative to the viewpoint-based restriction. 160 The majority concludes that the content distinction is justified anyway because the alternative of prohibiting both viewpoints within 500 feet of the embassy will restrict even more speech. This conclusion wholly ignores the "equality principle" that the Supreme Court has recognized in first amendment jurisprudence. The Court has on several occasions subordinated the first amendment interest in total aggregate speech to the first amendment interest in maintaining equality among speakers and, more importantly, viewpoints. 161 1. The "Greater" Power Does Not Necessarily Include the Lesser 162 There is more to the constitutional guarantee of free speech than quantitative measuring, i.e., simply ensuring that the most people are allowed to say the most words possible. The Supreme Court has indicated that the Constitution tolerates, and may even require, some broader restrictions on speech in order to avoid the evil of narrower content-based classifications. For example, in Schacht v. United States, 398 U.S. 58, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970), the Court struck down a provision of a federal statute that authorized an actor to wear a military uniform while portraying a serviceman in a theatre or motion picture so long as "the portrayal does not tend to discredit that armed force." Id. 398 U.S. at 59-60, 90 S.Ct. at 1557. Acknowledging that a broad prohibition on wearing "our military uniforms without authority is, standing alone, a valid statute," id. at 61, the Court nonetheless held that the narrower prohibition violated the first amendment, because it discriminated in favor of and against particular viewpoints. 163 Similarly, in Police Department v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), and in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), the Court struck down statutes incorporating content distinctions even though broader, content-neutral restrictions on picketing would apparently have passed muster. Again, in Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980), the Court struck down an Illinois statute that barred all picketing of residences except for "the peaceful picketing of a place of employment involved in a labor dispute." Id. 447 U.S. at 457, 100 S.Ct. at 2288. The Court stressed that it should not be 164 understood to imply, however, that residential picketing is beyond the reach of uniform and nondiscriminatory regulation.... " 'The crucial question, however, is whether [the Illinois statute] advances that objective in a manner consistent with the command of the Equal Protection Clause.' Reed v. Reed, 404 U.S. , 76, [, 92 S.Ct. 251, 254, 30 L.Ed.2d 225] [ (1971) ]." Police Department of Chicago v. Mosley, 408 U.S., at 99, 92 S.Ct. at 2292. And because the statute discriminates among pickets based on the subject matter of their expression, the answer must be "No." 165 Id. 447 U.S. at 470-71, 100 S.Ct. at 2295-96. See also Erznoznik v. City of Jacksonville, 422 U.S. 205, 215 n. 13, 95 S.Ct. 2268, 2276 n. 13, 45 L.Ed.2d 125 (1975) (indicating that "narrowly drawn nondiscriminatory traffic regulation" would be upheld even though more narrowly drawn discriminatory regulation was invalid). 166 This theme is consistent with the principle that the "constitutional guarantee of free speech 'serves significant societal interests' wholly apart from the speaker's interest in self-expression." Pacific Gas & Electric Company v. Public Utilities Commission, --- U.S. ----, 106 S.Ct. 903, 907, 89 L.Ed.2d 1 (1986). As Justice Brennan has explained, "[t]he First Amendment embodies more than a commitment to free expression and communicative interchange for their own sakes; it has a structural role to play in securing and fostering our republican system of self-government." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 587, 100 S.Ct. 2814, 2833, 65 L.Ed.2d 973 (1980) (Brennan, J., concurring). It thus borders on the frivolous to suggest that the first amendment, or its "narrowly tailored" component, can be meaningfully applied by comparing the number of syllables that are uttered regardless of their content or the extent to which the government is providing an optimal forum to one side only of a political debate. In the words of a leading commentator, "the first amendment is concerned, not only with the extent to which a law reduces the total quantity of communication, but also--and perhaps even more fundamentally--with the extent to which the law distorts the public debate." Stone, supra p. 29, at 198. Once these core values are taken into account, it is not at all "odd to describe an alternative that restricts" more words, but preserves equality, as less restrictive of first amendment freedoms. See maj. op. at 1465. 167 2. Viewpoint Discrimination and the Available Alternatives 168 The dangers of content discriminatory speech limitations are at their zenith when the discrimination is based not on the type of subject matter in general but on the particular viewpoint of the speaker. See Stephan, The First Amendment and Content Discrimination, 68 Va.L.Rev. 203, 233 (1982). Contrary to the majority's suggestion,18 the Supreme Court has 169 never held that government may allow discussion of a subject and then discriminate among viewpoints on that particular topic, even if the government may entirely exclude discussion of the subject from the forum. In this context, the greater power does not include the lesser because for First Amendment purposes exercise of the lesser power is more threatening to core values. Viewpoint discrimination is censorship in its purest form and government regulation that discriminates among viewpoints threatens the continued vitality of "free speech." 170 Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 61-62, 103 S.Ct. 948, 963-64, 74 L.Ed.2d 794 (1983) (Brennan, J., dissenting) (emphasis added). Indeed, in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), the plurality, while suggesting the legitimacy of some content-based distinctions, was careful to point out that viewpoint discrimination was not involved in the case. Id. 427 U.S. at 67-68, 96 S.Ct. at 2450-51. 171 The driving concept of the first amendment to promote a marketplace of ideas is twisted out of shape when, through governmental action, only one side of the debate is permitted access to the premium selling booth. While the Constitution does not guarantee speakers the best possible media exposure, see Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298 (1981), it does guarantee competitors equal access to such exposure. Above all else, the first amendment "forbids government to interfere with the competition of ideas." Georges v. Carney, 691 F.2d 297, 300 (7th Cir.1982). The viewpoint distinction in D.C.Code Sec. 22-1115 violates this core principle with a vengeance. 172 D.C.Code Sec. 22-1115 is obviously a viewpoint-based regulation. A picketer's access to the 500 foot zone turns exclusively on whether his signs applaud or condemn the government of the embassy. Yet the majority suggests that because the statute applies equally to those who wish to protest against the East German and the West German embassies, it does not illegitimately discriminate among viewpoints. Maj. op. at 1475. The majority's argument is silly. Issues and controversies do not divide themselves neatly along national lines like paired legislative votes. The statute does engage in viewpoint discrimination when anyone who wishes to disagree with any country's policy is banned from picketing at that country's embassy, while those supporting it are welcomed. Indeed, the legislative history reveals no small amount of intolerance for groups who choose to demonstrate against other countries' policies.19 173 It is still not clear whether the heightened special fears associated with viewpoint-based regulation mean that our Constitution will never tolerate regulation based on the speaker's viewpoint.20 In Carey v. Brown, 447 U.S. 455, 465, 100 S.Ct. 2286, 2292, 65 L.Ed.2d 263 (1980), however, the Court did explain that it "might agree that certain state interests may be so compelling that where no adequate alternatives exist a content-based distinction--if narrowly drawn--would be a permissible way of furthering those objectives" (emphasis added). We need not resolve the ultimate issue in this case.21 It is enough that an obvious and constitutionally acceptable alternative is available here, i.e., a viewpoint-neutral restriction on all demonstrating in the vicinity of an embassy. The existence of this obvious alternative serves to further condemn the viewpoint discriminatory Sec. 22-1115. 174 I can think of few scenarios more antithetical to first amendment values than one involving two groups--one pro-foreign government, one anti-government--simultaneously approaching an embassy with signs. The policemen's task under Sec. 22-1115 is to discern the viewpoint of each speaker and allow one group to pass the 500 foot barrier while forcing the other group to stay behind it. Those barred from the forum are not only deprived of access, but are also forced to watch their competitors take over the forum for their exclusive use. How much less odious to first amendment freedoms and values if all embassy demonstrators were forced to respect the 500 foot limit?22 175 Thus, I do not believe that D.C.Code Sec. 22-1115 is the least restrictive method of dealing with the interests that the government has proffered, even if these interests are legitimate and compelling ones. A viewpoint-neutral regulation prohibiting all embassy-related sign holding in the 500 foot zone around the embassy would provide greater protection from the dangers to both dignity and security than the current regulation does,23 would remove the problem of viewpoint discrimination, and would provide an equally accessible forum for all speakers outside of the 500 foot zone.24 176 Everyone agrees that embassies deserve to be protected against genuine dangers to their security, even if that means total prohibitions against demonstrations within close range. What we do not agree on is whether dignity interests can rise to a level compelling enough to justify protecting embassies by using a ban on free speech that discriminates in an arbitrary and unnecessary way between those who may demonstrate in front of embassies and those who may not. Certainly a fair and rational law which embodies no such discrimination could not be perceived in any foreign quarter as a lesser protection for foreign representatives, warranting retaliatory action against Americans living in their country. IV. STANDARDLESS DISCRETION 177 The second clause of Sec. 22-1115 makes it unlawful "to congregate within 500 feet of any such building or premises, and refuse to disperse after having been ordered so to do by the police authorities of the said District." D.C.Code Sec. 22-1115. In short, congregation (provided that there are no signs) anywhere within 500 feet of the embassy--up to the very gates--is permissible, unless the police decide it is not, and order the crowd to disperse. 178 Undoubtedly the District may grant authority to its police to disperse crowds and preserve the public peace under certain circumstances. See Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). But in describing that authority, the Supreme Court has been careful to point out that it must be "appropriate, limited discretion, under properly drawn statutes or ordinances." Id. at 558, 85 S.Ct. at 466. For example, in the area of licensing, the Court has declared that "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 938-39, 22 L.Ed.2d 162 (1969). Similarly, the Supreme Court has insisted that the "legislature establish minimal guidelines to govern law enforcement" officials in the exercise of their discretion. Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (quoting Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974)). Standards are, ironically, deemed essential in other cases to avoid the very possibility, ensconced in the statute here, of public officials' taking the speaker's content and viewpoint into account in determining whether to license, or in this case, disperse, a gathering. See generally Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 964 n. 12, 104 S.Ct. 2839, 2851 n. 12, 81 L.Ed.2d 786 (1984); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 628-32, 100 S.Ct. 826, 831-34, 63 L.Ed.2d 73 (1980); Hynes v. Mayor of Oradell, 425 U.S. 610, 620, 96 S.Ct. 1755, 1760, 48 L.Ed.2d 243 (1976); Staub v. City of Baxley, 355 U.S. 313, 321-25, 78 S.Ct. 277, 281-84, 2 L.Ed.2d 302 (1958); Lovell v. City of Griffin, 303 U.S. 444, 451-53, 58 S.Ct. 666, 668-69, 82 L.Ed. 949 (1938). 179 But Sec. 22-1115 provides no guidance at all as to when the police should and should not disperse a "congregating" group. In Zaimi v. United States, 476 F.2d 511, 515 (D.C.Cir.1973), this court explained that the second section of the statute, i.e., the congregating provision, is "functionally" separate from the first part, dealing with signs. This court clearly held that the portion of the ordinance prohibiting congregating was not qualified by the first portion of the ordinance. Id. at 527. Thus the majority cannot, consistent with circuit precedent, save this portion of the ordinance from facial invalidity by interpreting the ordinance to allow the police to order dispersal only when they "reasonably believe that a threat to the security or peace of the embassy is present." Maj. op. at 1472.25 While the majority by judicial fiat reads into the second part of the ordinance an overriding purpose of protecting the dignity of the embassy, maj. op. at ---- & n. 17, that purpose is nowhere to be found in the language of that part of the ordinance. In addition, only a narrowing interpretation by a state court or legislature can be relied upon to qualify a potentially standardless restriction on speech so as to overcome a constitutional challenge. Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972); Hill v. City of Houston, Texas, 764 F.2d 1156, 1164-65 (5th Cir.1985). 180 This statute is thus very different from the majority's example, D.C.Code Sec. 22-1121(2), which this court upheld in Washington Mobilization Committee v. Cullinane, 566 F.2d 107 (D.C.Cir.1977). See maj. op. at 1471. On its face, Sec. 22-1121(2) penalizes one who "with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby--(2) congregates with others on a public street and refuses to move on when ordered by the police." The ordinance had, however, been interpreted by this court earlier, acting as a local court (before the present D.C. local court system was created), to apply only to conduct which constitutes a nuisance or creates a substantial risk of provoking violence. Id. at 116. Relying on this narrowing construction of the phrase "breach of the peace," we found that the ordinance was constitutional. Id. at 116-17.26 But, as I have explained, Mobilization Committee's limiting technique is not available with respect to Sec. 22-1115. See supra at 1471-72. 181 Our disposition of this issue is controlled by this court's decision in United States v. Abney, 534 F.2d 984 (D.C.Cir.1976) (per curiam), where we struck down the conviction of a protestor who, while protesting in Lafayette Park, violated a regulation which provided that "[s]leeping, loitering or camping with intent to remain for a period of more than four hours in any park area, is prohibited, except upon proper authorization of the Superintendent." Id. at 985 (emphasis added). The court held that 182 [t]he regulation gives the Superintendent authority to grant permission to sleep in the park beyond the time limit specified, but it contains no "narrow, objective, and definite standards to guide the licensing authority" [citing Shuttlesworth ] to guard against the danger of arbitrary action or de facto censorship of certain points of view. If the Shuttlesworth standard of "public welfare, peace, safety, health, decency, good order, morals, or convenience" is facially unconstitutional, the totally unfettered discretion granted to the Superintendent here cannot survive constitutional challenge. 183 Id. at 985-86. These principles apply equally to the totally unfettered discretion given to the police in Sec. 22-1115. See Cox v. Louisiana, 379 U.S. 559, 573, 85 S.Ct. 476, 485, 13 L.Ed.2d 487 (1965); Association of Community Organizations for Reform Now v. Municipality of Golden, Colorado, 744 F.2d 739, 747 (10th Cir.1984). 184 Some sense of the amazing breadth of discretion accorded police to disperse congregations by Sec. 22-1115 can be gleaned by comparing it to other statutes recently declared invalid by the courts. In Beckerman v. City of Tupelo, Mississippi, 664 F.2d 502 (5th Cir.1981), for example, the court invalidated a parade ordinance which authorized the chief of police to deny a permit upon finding that "the conduct of the parade will probably cause injury to persons or property or provoke disorderly conduct or create a disturbance." Id. at 507. The court held that the term "provoke disorderly conduct" was susceptible of a broad interpretation, which would allow the chief of police "to deny permits to those seeking to engage in protected activity," id. at 508, and explained that: 185 No narrowing construction has been offered by the Tupelo City Council or the Mississippi courts. Because we do not sit as a "super" state legislature, we may not impose our own narrowing construction onto the ordinance.... We fully recognize the fact that Tupelo enacted the ordinance in good faith and intends to apply it in a fair manner. We cannot, however, overlook the substantial potential for overbroad application of the ordinance. 186 Id. at 509. See also Association of Community Organizations for Reform Now v. Municipality of Golden, Colorado, 744 F.2d 739 (10th Cir.1984); Cinevision Corp. v. City of Burbank, 745 F.2d 560, 571 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 2115, 85 L.Ed.2d 480 (1985). 187 The majority tries to avoid the confrontation with these recent precedents27, first by feebly attempting to distinguish Shuttlesworth and Abney. See Maj. op. at 1470-71. Even if these were the only cases on point, the distinction that the majority draws between permits in general and "sensitive areas," maj. op. at 1471, would be illogical. There is nothing about "sensitive areas" that makes it impossible to carefully draft a statute delineating the standards by which the police are to exercise their authority to disperse congregating groups. 188 The majority also suggests that "a court would [not] sustain a conviction under this statute for refusal to disperse upon a policeman's order if the policeman had acted out of personal malice [or] to prevent the sidewalk sale of neckties." Maj. op. at 1472. That answer, however, ignores the longstanding first amendment doctrine that "[p]roof of an abuse of power in the particular case has never been deemed a requisite for attack on the constitutionality of a statute purporting to license the dissemination of ideas." Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940); see also Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938). 189 But the fact is that this is not even a case where a speaker is attempting to challenge a licensing scheme without having asked for and been denied a license. The plaintiffs here alleged that on multiple occasions the police used this standardless statute to prevent them, on penalty of arrest, from peacefully congregating. That is clearly enough for a facial attack on the statute, and I simply do not understand how the court can principledly avoid it. The dispersion portion of the law is patently void for lack of any governing criteria. V. CONCLUSION 190 The majority opinion, by blindly deferring to the political branches and unquestioningly accepting their assertion of an ill-defined interest in protecting foreign emissaries from annoyance and insult, effectively gouges out an enormously important category of political speech from first amendment protection. The fact that some regulation of speech is needed to serve a compelling interest in preserving security, and the fact that some deference is due to coordinate branches, does not, however, mean that the court has no role in assuring that the regulatory scheme is fine-tuned in accordance with constitutional principles. If the court were to accept its mandate and invalidate this statute, Congress could easily draft an alternative that would be just as protective of security, but far less abhorrent to the first amendment. 191 The majority attempts to ignore well-settled constitutional principles by emphasizing what it perceives to be the trivial nature of the restrictions at issue here. See, e.g., maj. op. at 1476-77. But what may seem trivial to the majority is obviously not so trivial to those who brought this suit, nor to those anti-apartheid protestors whose arrests in front of the South African embassy we followed on the front pages and on the evening news for over a year; they have risked and suffered arrest in order to gain access to what they perceive to be the most effective forum in which to express their convictions.28 There is, so far, no constitutional principle setting out hybrid rules of scrutiny for "trivial" viewpoint regulation of free speech. 192 Given the passage of a half century since Sec. 22-1115 was enacted, and the dramatic developments in our first amendment jurisprudence during these five decades, I hope that Congress will revisit this statute and show it has the constitutional sense to do what this court will not. 193 I respectfully dissent. * Sitting by designation pursuant to 28 U.S.C. Sec. 291(a) 1 The full text of D.C.Code Sec. 22-1115 (1981) reads as follows: It shall be unlawful to display any flag, banner, placard, or device designed or adapted to intimidate, coerce, or bring into public odium any foreign government, party, or organization, or any officer or officers thereof, or to bring into public disrepute political, social, or economic acts, views, or purposes of any foreign government, party, or organization, or to intimidate, coerce, harass, or bring into public disrepute any officer or officers or diplomatic or consular representatives of any foreign government, or to interfere with the free and safe pursuit of the duties of any diplomatic or consular representatives of any foreign government, within five hundred feet of any building or premises within the District of Columbia used or occupied by any foreign government or its representative or representatives as an embassy, legation, consulate, or for other official purposes, except by, and in accordance with, a permit issued by the Chief of Police of the said District; or to congregate within five hundred feet of any such building or premises, and refuse to disperse after having been ordered so to do by the police authorities of the said District. 2 We note that the same conclusion has recently been reached by the Superior Court of the District of Columbia, which upheld Sec. 22-1115 against precisely the same challenges presented here. United States v. Brown, No. M-10901-83 (D.C.Super.Ct. Jan. 20, 1984) 3 President Fillmore, Message to Congress, Dec. 2, 1851, 6 J. Moore, International Law Digest 813 (1906) 4 The Act of State doctrine is a reflection of judicial adherence to a similar principle: courts will allow what may be an expropriation to take place rather than inquire into the representations made by a foreign government with respect to acts within its borders, in part out of a reluctance to "give offense," Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 432, 84 S.Ct. 923, 942, 11 L.Ed.2d 804 (1964), and in order to "avoid disrespect for foreign states." Sec. 469 comment a Restatement of Foreign Relations Law (Revised) (Tent.Draft No. 7, 1986) 5 As we have indicated, Article 22 of the Vienna Convention created no new law, but rather codified doctrine that already existed. In similar fashion, the Harvard Draft Convention on Diplomatic Privileges and Immunities, published in 1932, provided that: A receiving state shall protect the premises occupied or used by a mission, or occupied by a member of a mission, against any invasion or other act tending to disturb the peace or dignity of the mission or of the members of a mission.... 26 Am.J.Int'l L. 20-21 (Supp.1932). According to the commentary accompanying the Convention: Protection against invasion of the premises of a mission ... means protection against any attempt to enter the premises against the will of the chief or other members of the mission. The duty, however, goes further than that. The receiving state is under a duty to protect the premises against any acts tending to interfere with the enjoyment or possession of such premises.... The special duty of protection of premises would include protection against crowds or mobs collected in the vicinity of the premises for the purpose of expressing abuse, contempt or even disapprobation of the sending state or of its mission, or of the members of a mission. A similar duty would seem to exist to protect such premises against so-called "picketing," this being an act tending to disturb the peace and dignity of the mission. Id. at 56-57. 6 Contrary to the suggestion made by the dissent, dissent at 1484 n. 8, first amendment cases are no exception to this principle. See Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) 7 Appellants claim that the district court's reliance on the assertions contained in these declarations was improper and in the event their argument that the statute is facially unconstitutional is rejected, they urge that we remand the case so that the assertions can be contested at trial. Appellants misconceive the responsibility of a party opposing a motion for summary judgment. The mere mention to the district court that plaintiffs "vigorously dispute" statements made in declarations, R.E. at 60, without any supporting citations to the record, see Local Rule 1-9(i), will not serve to call into question the contentions made by the opposing parties. See Fed.R.Civ.P. 56(e) ("When a motion for summary judgment is made and supported ... an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.") 8 The Fields Declaration cites an incident that illustrates the importance of this buffer: Another example of this problem occurred recently in connection with a demonstration near the Soviet Embassy here by a group of Afghans protesting the Soviet invasion of Afghanistan. The demonstrators broke through police lines, but due to the 500-foot distance separating them from the Embassy premises, police were able to re-establish control, making a number of arrests in the process, before the demonstrators could reach the building. Had the distance separating the demonstrators from the Embassy been less, the results probably would have been quite different, and property damage and personal injury to the embassy and its occupants might well have resulted, with potentially serious consequences for U.S. foreign relations and the security of U.S. personnel overseas. Declaration of David Fields at 3-4, R.E. at 38-39. 9 Appellants suggest that the existence of 18 U.S.C. Sec. 112(b) (1982) demonstrates that Congress could have achieved the same ends with a narrower statute. 18 U.S.C. Sec. 112(b) regulates demonstrations near embassies and other buildings owned by foreign governments outside the District of Columbia, and is somewhat less restrictive than Sec. 22-1115 of the D.C.Code. The unstated premise of this argument, however, is that the governmental interests at stake in these two statutes are indistinguishable. In fact, the same Congress that enacted Sec. 112(b) in its present form--amending a more restrictive version than had been enacted some years before--left Sec. 22-1115 alone. There are several plausible reasons why Congress might choose to differentiate between the two. The greater concentration of embassies in the District of Columbia, and the special visibility of the capital, may well make enhanced protection necessary. In addition, Congress relies to some extent on the state and local governments to provide whatever additional measures are necessary to protect foreign nationals, aware perhaps that security needs may differ from state to state. See Concerned Jewish Youth v. McGuire, 621 F.2d 471, 475 (2d Cir.1980) (18 U.S.C. Sec. 112(b) did not set "maximum standards of protection," and left open possibility of local authorities using "stricter controls"). Therefore, the fact that Congress generally exercises much more direct and specific authority over municipal activities in the District of Columbia than those in other cities may well explain the differences between the measures adopted in the two statutes. We note in this regard that the authority of the United States Secret Service over matters involving the protection of foreign embassies is substantially greater for those embassies located within the District than for those located outside. 3 U.S.C. Sec. 202 (1982) 10 The dissent is correct when it points out that "the 'greater' power does not necessarily include the lesser." Dissent at 1492. Therefore, the fact that a broad, content-neutral prohibition would be constitutional does not, by itself, imply that all less broad, content-based statutes are necessarily constitutional too. In Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), Grayned v. Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), and Carey v. Brown, 447 U.S. 455, 461-62, 100 S.Ct. 2286, 2290-91, 65 L.Ed.2d 263 (1980), the mere fact that total antipicketing laws might be constitutional did not justify laws that permitted some picketing but not others on the basis of content. In those cases, however, the statutes were infirm not because there was a constitutionally acceptable content-neutral alternative, but because the distinctions embodied in the statutes were not narrowly tailored to serve compelling government interests 11 The dissent's heavy reliance on Schacht v. United States, 398 U.S. 58, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970), is misplaced. The viewpoint-discrimination in Schacht did not serve any legitimate governmental interest. It appears from the decision that the government did not claim otherwise, and chose to defend its position on other grounds 12 The dissent need not be troubled by our citation of this unpublished order. The Circuit Rule only forbids citing such orders "as precedent," Western Union Telegraph Co. v. FCC, 773 F.2d 375, 377 n. 1 (D.C.Cir.1985), which we do not do. We mention Jackalone only because it serves to illustrate a realistic scenario in which the dissent's theory would require an incorrect result. While the regulation under which the permit in Jackalone was denied is content-neutral, it is clear from the brief that the government's rationale for forbidding the demonstration by Iranian students in front of the Iranian embassy was that the demonstration was likely to attract hostile onlookers, and that news reports describing and televising Americans shouting obscenities at Iranian students in front of the embassy would have endangered American diplomatic personnel in Iran by angering the Iranian government. This judgment was made on the basis of the content and viewpoint of the demonstration, and on the nationality of the demonstrators. While this is an extreme example, the parallels to Sec. 22-1115 are evident, since the dissent's requirement that neutral prohibitions be chosen over non-neutral ones is not affected by the strength of the governmental interest involved 13 See, e.g., Farber, Content Regulation and the First Amendment: A Revisionist View, 68 Geo.L.J. 727 (1980); Stephan, The First Amendment and Content Discrimination, 68 Va.L.Rev. 203 (1982); Stone, Restrictions of Speech Because of its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U.Chi.L.Rev. 81 (1978) 14 Contrary to the suggestion made by the dissent, dissent at 1493 n. 18, we do not attribute "relevance to the Court's silence" in Parker, for the Court was not silent. In the course of rejecting the overbreadth challenge, the Court held that Levy's conduct--illegal because of the content of his public statements, 417 U.S. at 736-37, 739, 94 S.Ct. at 2552-53--was "unprotected under the most expansive notions of the First Amendment" and that the regulations at issue "may constitutionally prohibit" it. Id. at 761, 94 S.Ct. at 2564. The dissent correctly notes that the reasoning in Parker relies heavily on the military context of these regulations. We therefore do not regard Parker as dispositive in this case, except insofar as it demonstrates that the suggestion by appellants that all viewpoint distinctions are per se unconstitutional is unfounded--a suggestion about which the dissent is ambivalent. Dissent at 1494 15 Under the most recent Supreme Court precedent, Sec. 22-1115 may not in fact qualify as a content-based statute. In City of Renton v. Playtime Theatres, Inc., --- U.S. ----, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), the Court found constitutional a zoning ordinance that prohibits "adult" motion picture theatres from locating within one thousand feet of any residential zone, single- or multiple-family dwelling, church, park, or school. Writing for six members of the Court, Justice Rehnquist explained that while the ordinance "treats theatres that specialize in adult films differently from other kinds of theatres," it nevertheless was aimed not at the content of the films "but rather at the secondary effects of such theatres on the surrounding community." Id. at --- U.S. at ----, 106 S.Ct. at 929 (emphasis in original). It was thus "completely consistent with our definition of 'content-neutral' speech regulations as those that 'are justified without reference to the content of the regulated speech.' " Id. (quoting Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976) (emphasis added in City of Renton )). Similarly, Sec. 22-1115, while differentiating on the basis of the content of the speech, is justified by reference to content-neutral values--the need to adhere to principles of international law and to provide sufficient protection to foreign embassies. Because we are not entirely sure, from City of Renton alone, whether Sec. 22-1115 is the sort of statute that can be analyzed under the standard applicable to content-neutral time, place and manner restrictions, and because we believe it meets the more stringent standard to which content-based restrictions have traditionally been held, we focus on that latter standard 16 The pertinent text of the Police Line Regulation is as follows: Sec. 5a. When fires, accidents, wrecks, explosions, parades, or other occasions cause or may cause persons to collect on the public streets, alleys, highways, or parkings, the Chief of Police, inspector, captain of police, or officer acting for him, may establish such area or zone as he considers necessary for the purpose of affording a clearing for: (1) the operation of firemen or policemen; (2) the passage of a parade; (3) the movement of traffic; (4) the exclusion of the public from the vicinity of a riot, disorderly gathering, accident, wreck, explosion, or other emergency; and (5) the protection of persons and property. Every person present at the scene of such an occasion, shall comply with any necessary order or instruction of any police officer. No person shall enter such area or zone, unless duly authorized by the person in command on such an occasion; Provided, That bona fide representatives of the press and bona fide insurance adjusters or underwriters and such other persons as the Chief of Police may authorize to be within such space, and who shall have plainly exposed to view the press pass or fire pass described in this section, shall be permitted within the lines established by the Police Department under the conditions named in the following paragraph.... 17 The dissent states that we have ignored circuit precedent by reading the second clause of Sec. 22-1115 as we do. The precedent to which the dissent refers is Zaimi, 476 F.2d at 515, in which we held that the second clause was functionally separate from the first. The dissent misunderstands our analysis. We do not believe that the second clause is limited by the first, i.e., that police may order dispersal only where the congregation is displaying signs of the sort described. Rather, we believe the provision is limited by the general purposes which motivated the enactment of the statute as a whole, i.e., protection of the peace and security of the embassy. Dispersals may only be ordered in accord with those purposes 18 Appellants also contend that the statute is substantially overbroad because it regulates criticism of any foreign government in front of any foreign embassy. In other words, the statute, in appellants' view, prohibits an anti-Israel demonstration in front of the Syrian Embassy. We think this construction implausible in light of the purposes behind the provision's enactment. We think it in any event precisely the sort of challenge that ought to be made by an individual prevented from so demonstrating, and one which, if successful, would call for a limiting construction rather than facial invalidation. In the absence of any evidence that the statute has ever been applied in such a fashion, we will not entertain such a challenge now. See Regan v. Time, 468 U.S. at 649-52, 104 S.Ct. at 3267-69 (overbreadth challenge "unavailing" when there is "no evidence" that the statute will be interpreted as feared) 19 Appellants also maintain that the exception to Sec. 22-1115 for labor picketing, codified in Sec. 22-1116, is an unconstitutional content-based restriction. We reject this argument for the reason given by the three-judge court in Jewish Defense League v. Washington, 347 F.Supp. 1300 (D.D.C.1972) 20 The law invalidated by the Supreme Court in Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), was one such statute. It prohibited all picketing within 150 feet of a school, except peaceful picketing of any school involved in a labor dispute. The Court held that the statute violated the equal protection clause, but never explained its decision to strike the statute rather than the exemption 21 In a declaration filed below, Father Finzer stated: "I ... believe that my conservative colleagues and I are being discriminated against because of the nature of our political beliefs." Declaration of Father R. David Finzer at 5, R.E. at 19. Appellants have supplemented the record before us with a press release issued by the city government, entitled "District Drops Charges in South Africa Case." In this press release, District of Columbia Corporation Counsel Inez Smith Reid announced that the District would be dropping charges against five persons who crossed a police barricade during a demonstration at the South African Embassy. Ms. Reid said: It would be untenable for the Office of the Corporation Counsel to prosecute these five individuals who demonstrated peaceably to call attention to the gross injustices which result from the South African policy of apartheid. We are aware that the United States Attorney for the District of Columbia has dropped charges against several of those arrested at the South African Embassy. For us not to do so would set an inconsistent policy with respect to the prosecution of those arrested at the South African Embassy. Finally, no significant District of Columbia interest would be served by these prosecutions. These five individuals were arrested pursuant to local laws, while those the U.S. Attorney decided not to prosecute had been arrested pursuant to Sec. 22-1115. We do not have before us any similar documents from the U.S. Attorney's office and we decline to speculate, absent substantial evidence, about its motives and rationales. We note, however, that a statute constitutional on its face may not be applied in an unconstitutional manner. Yick Wo v. Hopkins, 118 U.S. 356, 65 S.Ct. 1064, 30 L.Ed.220 (1886). The boundaries of prosecutorial discretion are quite wide, but they are not limitless. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962). Because the plaintiffs before us have not pressed a claim of selective prosecution, we offer no opinion on the constitutional issues such a claim might raise. 22 The dissent misses the point of this analogy, dissent at 1495 n. 22, which is that when only one particular category of speech threatens the legitimate interest the legislature seeks to promote, other, nonthreatening categories need not necessarily be regulated as well. The dissent compares Sec. 22-1115 to a law allowing theatre-goers to shout "Encore" but not "Boo." If shouting "Boo," but not "Encore," had the same effect as shouting "Fire," then the law could permissibly regulate the shouting of "Boo" and "Fire" while leaving "Encore" alone 1 The majority speaks often and fondly of the need to defer to Congress' balancing of free speech interests and the dictates of the Law of Nations, but acknowledges that the balance reached in 1937, before any of the relevant Supreme Court decisions on content-discrimination issued, must be reassessed in light of those dramatic changes in first amendment jurisprudence. See maj. op. at 1454 Recent congressional action in the area casts doubts on whether today's Congress agrees that D.C.Code Sec. 22-1115 reflects the right constitutional balance. From 1972 to 1976, the statute that governs embassies in the fifty states penalized anyone who (1) parades, pickets, displays any flag, banner, sign, placard, or device, or utters any word, phrase, sound or noise, for the purpose of intimidating, coercing, threatening, or harassing any foreign official or obstructing him in the performance of his duties, or (2) congregates with two or more persons with the intent to perform any of the aforesaid acts. 18 U.S.C. Sec. 112. In 1976, however, Congress amended Sec. 112 to eliminate the prohibition on banners, signs, placards, or devices. The amendment was explained on the ground that the old statute "raises serious Constitutional questions because it appears to include within its purview conduct and speech protected by the First Amendment." H.R.Rep. No. 1614, 94th Cong., 2d Sess. 6 n. 9, reprinted in 1976 U.S.Code Cong. & Ad.News 4480, 4484 n. 9; S.Rep. No. 1273, 94th Cong., 2d Sess. 8 n. 9 (1976). Thus, even though the pre-amendment Sec. 112 was far less restrictive of speech than D.C.Code Sec. 22-1115 is, Congress thought it necessary to amend it to conform with the dictates of the first amendment. This post-enactment history is not, of course, evidence of how Congress feels about the D.C.Code provision's constitutionality. It is evidence, however, that Congress has re-evaluated the proper balance between embassy security and first amendment interests and that the 1937 statute, now part of the local District of Columbia Code, may no longer reflect Congress' current views as to where that balance lies. See infra at 1465 n. 10. 2 "The term 'narrowly tailored,' so frequently used in our cases, has acquired a secondary meaning. More specifically, as commentators have indicated, the term may be used to require consideration whether lawful alternative and less restrictive means could have been used." Wygant v. Jackson Board of Education, --- U.S. ----, 106 S.Ct. 1842, 1850 n. 6, 90 L.Ed.2d 260 (1986) (Powell, J., plurality opinion) By contrast, the Supreme Court has instructed that "less-restrictive-alternative analysis ... has never been a part of the inquiry into the validity of a [content-neutral] time, place, and manner regulation. It is enough that the ... restriction substantially serves the Government's legitimate ends." Regan v. Time, Inc., 468 U.S. 641, 657, 104 S.Ct. 3262, 3272, 82 L.Ed.2d 487 (1984) (emphasis added); see also White House Vigil for ERA Committee v. Clark, 746 F.2d 1518, 1528-29 (D.C.Cir.1984) (refusing to apply least-restrictive-alternative analysis to content-neutral time, place, and manner restriction). 3 Indeed, even more threatening to our constitutional values, it is a viewpoint-based statute. See infra at 1492-96 4 The first clause of the statute encompasses "any flag, banner, placard, or device." For convenience sake, I shall refer to this entire class as signs 5 The majority suggests, however, that under City of Renton v. Playtime Theatres, Inc., --- U.S. ----, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), "Sec. 22-1115 may not in fact qualify as a content-based statute." Maj.op. at 1469 n. 15. In that case, the Supreme Court held that zoning of adult theatres designed to "protect the city's retail trade, maintain property values, and generally 'protec[t] and preserv[e] the quality of [the city's] neighborhoods, commercial districts, and the quality of urban life,' not to suppress the expression of unpopular views," did not trigger the scrutiny reserved for typical content-based regulations. 106 S.Ct. at 929. The Court found the "resolution of [the] case largely dictated by [the] decision in Young v. American Mini Theatres, Inc., [427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) ]." Renton and Young, however, are obviously and dramatically different from the case at bar In upholding the Renton ordinance, the Court stressed that the "ordinance does not contravene the fundamental principle that underlies our concern about 'content-based' speech regulations: that 'government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.' " Id. 106 S.Ct. at 929 (quoting Mosley, 408 U.S. at 95-96, 92 S.Ct. at 2289-90; see also Young, 427 U.S. at 67-68, 96 S.Ct. at 2450-51 (opinion of Stevens, J.). In this case, the government has done just that. Unlike the Renton ordinance, D.C.Code Sec. 22-1115 turns on the viewpoint of the speaker, and there can be no denying that one of the predominant reasons for the restriction is to prohibit the airing of views that are disfavored by those occupying foreign embassies. See infra at 1493. The fact that the statute was indeed enacted in order to shield foreign emissaries from the content of speech eliminates any analogy to Renton where the Court held that the ordinance was only aimed at "secondary effects." 106 S.Ct. at 929. Here, a major part of the perceived evil is the content of the speech itself, and the emotive impact of it. If listeners' reaction to the content of speech is deemed to be a "secondary" effect, then there is nothing left at all of the content-based distinction doctrine. Yet, on the day it decided Renton, the Court also issued its decision in Pacific Gas & Electric Co. v. Public Utilities Commission, --- U.S.----, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986), in which it reaffirmed the content doctrine. Id. 106 S.Ct. at 914 ("For a time, place, or manner regulation to be valid, it must be neutral as to the content of the speech to be regulated."). Finally, it is important to keep in mind that Renton was dealing with the issue of adult theatres. For good or for bad, the Supreme Court has adopted the view that not all speech is privy to the same protection. As Justice Stevens explained in Young, "[w]hether political oratory or philosophical discussion moves us to applaud or to despise what is said, every schoolchild can understand why our duty to defend the right to speak remains the same. But few of us would march our sons and daughters off to war to preserve the citizen's right to see 'Specified Sexual Activities' exhibited in the theaters of our choice." 427 U.S. at 70, 96 S.Ct. at 2452. Along the continuum, there can be no doubt that political speech, such as that abridged in this case, is entitled to the utmost protection. See Brown v. Hartlage, 456 U.S. 45, 52, 102 S.Ct. 1523, 1528, 71 L.Ed.2d 732 (1982); In re Primus, 436 U.S. 412, 437-38, 98 S.Ct. 1893, 1907-08, 56 L.Ed.2d 417. See generally Bork, Neutral Principles and Some First Amendment Problems, 47 Ind.L.J. 1, 20 (1971). 6 Many of the majority's examples--protections against acts of violence such as the tearing down of flags or tumultuous riots--are readily recognized as involving our government's obligations to protect the embassy's security rather than its dignity. See maj.op. at 1455-57 7 Because I find no demonstrated connection between the hostile sign prohibition and the fear of foreign retaliation in this case, I need not decide whether fear of a foreign government's actions in response to peaceful criticism may ever justify infringement of an American citizen's constitutional rights. I admit to grave concerns about the degree or circumstances under which a foreign government's threats, through a grand-scale heckler's veto, can justify abridgement of constitutional rights. An admittedly extreme example makes the point: if some foreign country threatened to attack Americans abroad unless we rescind voting rights for blacks in the United States, that could hardly justify such discrimination 8 At another point the majority argues that the "dignity" interest must be accepted as compelling because "a court cannot lightly dispute a determination by the political branches ... that the interests at stake are compelling." Maj.op. at 1459. The majority never explains, however, which political branch made this determination, and when they made it. Was Congress so omniscient that in 1937 it could anticipate future developments in first amendment law and carry out analyses that had not yet been developed? The fact is that recent congressional action casts doubt about whether Congress still thinks that the statute reaches a correct constitutional balance. See supra note 1. Thus, even if this notion of super-deference had a role to play in compelling interest scrutiny, there is no support for it in this case More generally, where the Supreme Court has desired lower courts to modify their usual methods of review in first amendment cases, it has clearly told us so. See Goldman v. Weinberger, --- U.S. ----, 106 S.Ct. 1310, 1313, 89 L.Ed.2d 478 (1986) ("Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society."). Deference to the political branches is not otherwise as broad in the first amendment context as in some other areas, even when issues of foreign affairs are involved. See supra at 1483; New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam). 9 The statute punishes whoever congregates with two or more other persons within one hundred feet of a listed diplomatic building with intent to "intimidate[ ], coerce[ ], threaten[ ], or harass[ ] a foreign official or an official guest or obstruct[ ] a foreign official in the performance of his duties." Relying on the complete content-neutrality of the statute, and only on the government's asserted security interest, the Fifth Circuit held in CISPES that the statute was constitutionally permissible. 770 F.2d at 472-75 10 Despite the majority's attempts to vest the "dignity" interest with a congressional imprimatur, Congress' post-Vienna Convention enactments dealing with consulates and missions outside the District of Columbia have been far less concerned with protecting foreign emissaries against insult and far more sensitive to first amendment values than Sec. 22-1115. Despite the long-standing nature of the Law of Nations' alleged concern with protecting embassies from annoyance and insult, until 1972 the only statutory protection afforded foreign diplomats outside D.C. was against violent acts. See 18 U.S.C.A. Sec. 112 (1969). In 1972 the statute was amended to restrict harassing demonstrations near embassies in order "to protect the peace, dignity and security of foreign officials." S.Rep. No. 1105, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Ad.News 4316, 4328; see supra at 1478 n. 1. The Senate was concerned about the first amendment implications of this prohibition, however, and added a provision to the final bill, still codified at 18 U.S.C. Sec. 112(d) (1982), explaining that "[n]othing contained in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the first amendment to the Constitution of the United States." Id., reprinted in 1972 U.S.Code Cong. & Ad.News at 4330. Congress remained concerned about the free speech implications of its actions, however, and when it revisited Sec. 112 four years later it repealed the picketing provisions, citing constitutional concerns. See supra at 1478 n. 1. Congress is presumably satisfied that 18 U.S.C. Sec. 112 fulfills its duties under the Vienna Convention, even though it no longer contains anything remotely like the restrictions embodied in Sec. 22-1115 and expressly directs that it be interpreted so as not to abridge first amendment rights. This congressional pronouncement is far more persuasive on the requirements of the Law of Nations and the Vienna Convention and their relation to the first amendment than the decades-old provisions of Sec. 22-1115, enacted before the Vienna Convention and many of the important developments in first amendment law 11 This is not a case, like those cited by the majority, maj. op. at 1462, where the nature of the demonstration site is functionally incompatible with free speech. We are dealing here with public sidewalks. First, no aesthetic or traffic rationale has been set forth for the sign ban. If one had, then presumably signs in support of the embassy's government would be equally forbidden. See Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966) (upholding content-neutral regulation of speech on jail premises). Nor is this a case like Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), where the explicit constitutional value of preserving fair trials justified a viewpoint-neutral restriction that prohibited expression designed to influence judicial proceedings in the vicinity of a courthouse 12 The Court has created an exception when the audience is schoolchildren. Bethel School District, --- U.S. at ----, 106 S.Ct. at 3164. Foreign emissaries are not, like America's youth, in need of civic training or special protection from sexually explicit speech. Neither does the Law of Nations constitute them as a class apart, entitled to exercise a heckler's veto in violation of constitutional principles. Cf. supra at 1484 n. 7 13 The majority explains that the first part of the statute --requiring a permit for the display of a sign tending to bring a foreign government into disrepute--is primarily intended to avoid affronts to the dignity of foreign governments and their diplomatic personnel. The second feature--prohibiting "congregating"--is concerned more with threats to the security of the foreign government's representatives and property. Maj. op. at 1452 (emphasis added). 14 Even this justification raises serious constitutional questions. See supra at 1484 n. 7 15 The majority attempts to overcome this evidentiary gap by pointing out that the affidavits mention the Vienna Convention, which codifies this country's obligation to protect both the security and dignity of embassies. Maj. op. at 1460. That treaty does not, however, provide evidence of a nexus between protecting embassies from insult and avoiding retaliation abroad any more than it provides evidence of a link between security interests and retaliation. "Expert judgment" is equally necessary in both cases 16 The major sponsor of the Senate Joint Resolution culminating in D.C.Code Sec. 22-1115, did proffer at one point the explanation that the sign provision was designed to prevent the communication of ideas that threaten to bring the hatred of people upon us whose embassy is thus besmirched.... [A]ll the armies that can be furnished will not protect our men and women in China and Japan if we arouse and incur the hatred not of those governments but of their people by speaking unkindly or in a manner to bring into odium their Governments and their people. 81 Cong.Rec. 8589 (comments of Sen. Pittman, Aug. 10, 1937). Thus, it is evident that part of the statute's purpose, at least in its major sponsor's mind, was to protect the security of American citizens living abroad by diminishing the risk of incurring a foreign people's anger. See also id. at 8485 (comments of Senator Pittman, Aug. 7, 1937) The opinion of a senator in 1937 that protecting foreign embassies from exposure to adverse signs was necessary to protect American nationals in foreign countries cannot, of course, be viewed as dispositive then, much less 50 years later. See Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843, 98 S.Ct. 1535, 1543, 56 L.Ed.2d 1 (1978) ("Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake"). Unlike most duly-enacted laws which are presumed constitutional, the government bears the burden of proving the constitutionality of laws infringing on first amendment rights. See generally Philadelphia Newspapers, Inc. v. Hepps, --- U.S. ----, 106 S.Ct. 1558, 1564, 89 L.Ed.2d 783 (1986). The fact is, however, that even Senator Pittman rejected the hypothesis that an affront to the dignity of the embassy might have official repercussions. In response to a question as to whether the efforts of foreign governments to protect American nationals are dependent on the passage of the resolution, he responded that the foreign governments "no matter whether or not we protect them against insults and annoyance and possibly riot and physical injury, will do what they can to protect our citizens in their countries; but there is danger of physical injury when great and angry crowds meet in the way that has been referred to." 81 Cong.Rec. 8485 (remarks of Sen. Pittman, Aug. 7, 1937). It is thus apparent that the years have brought a shift in the governmental interest that is asserted to support the statute. This shift in the interests that the statute serves is not, in and of itself, problematic. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 71, 103 S.Ct. 2875, 2882, 77 L.Ed.2d 469 (1983) ("insufficiency of the original motivation does not diminish other interests that the restriction may now serve"). Such a change of interests served does, however, highlight the need for clear articulation and support for the current interests. 17 Although these examples are clear-cut, the kind of ideological line-drawing by government officials that may be necessary in some cases to decide which signs are supportive and which are critical of foreign governments is an additional constitutional problem in implementing the statute 18 The majority suggests that, in one case, the Supreme Court has tolerated viewpoint-based regulation of speech. See maj. op. at 1469 (citing Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974)). Nothing in Parker supports this proposition. First, although the statute was arguably viewpoint-based, Parker did not challenge that aspect of it before the Court. Moreover, even if we attribute relevance to the Court's silence on that issue, we cannot ignore the Court's repeated admonitions that its ruling in Parker was unique to the military context. The Court stressed that " '[i]n the armed forces some restrictions exist for reasons that have no counterpart in the civilian community.... Speech that is protected in the civilian population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected.' " Id. at 758-59, 94 S.Ct. at 2562-63 (quoting United States v. Priest, 45 C.F.R. 338, 344 (1972)) 19 Discussing the protests that he received about the statute, Senator Pittman stated: Whence come these protests against the joint resolution? Have we heard the American Legion appealing to us ...? Have we heard the Veterans of Foreign Wars appealing to us ...? Have we heard the Daughters of the American Revolution protesting that by the enactment of this resolution we are destroying constitutional rights? * * * No! Telegrams are coming to us, but who are they from? Some day before our committee we will find out who is sending them.... 81 Cong.Rec. 8590 (remarks of Sen. Pittman, August 10, 1937) 20 Schacht v. United States is one of the only modern Supreme Court decisions dealing with a viewpoint-discriminatory statute. After wearing an army uniform in a street skit protesting American involvement in the Vietnam war, Schacht had been convicted of violating 18 U.S.C. Sec. 702, which forbids unauthorized wearing of the uniform of the armed forces of the United States. Schacht defended himself on the basis of 10 U.S.C. Sec. 772(f), which provided that "[w]hile portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a theatrical or motion-picture production may wear the uniform of that armed force if the portrayal does not tend to discredit that armed force." (emphasis added). After explaining that a blanket prohibition on unauthorized wearing of a uniform would be valid, 398 U.S. at 61, 90 S.Ct. at 1558, the Court nonetheless struck down the conviction, holding that: In the present case Schacht was free to participate in any skit at the demonstration that praised the Army, but ... he could be convicted of a federal offense if his portrayal attacked the Army instead of praising it.... Clearly punishment for this reason would be an unconstitutional abridgment of freedom of speech. The final clause of Sec. 772(f), which leaves Americans free to praise the war in Vietnam but can send persons like Schacht to prison for opposing it, cannot survive in a country which has the First Amendment. To preserve the constitutionality of Sec. 772(f) that final clause must be stricken from the section. Id. at 63,90 S.Ct. at 1559. Significantly, the Court never looked to any potential justifications or compelling interests that might lie behind the distinction. On the other hand, language in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), might be read to support the theory that some viewpoint discriminatory statutes could pass muster, at least in the school setting. See id. 393 U.S. at 511, 89 S.Ct. at 739 ("the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible"). But see Bethel School District No. 403 v. Fraser, --- U.S. ----, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986) (different first amendment standards apply in the school setting). 21 Because of the existence of an alternative to viewpoint discrimination in this case, I need not decide this issue. What the majority terms as ambivalence, maj. op. at 1469 n. 14, I prefer to think of as adherence to the long-standing principle of deciding constitutional issues as narrowly as the case allows 22 The majority argues that my approach is inconsistent with the Supreme Court's decision in Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), and this court's unpublished order in Jackalone v. Andrus, No. 79-2359 (D.C.Cir. Nov. 19, 1979). Maj. op. at 1466. The majority misconstrues the import of those decisions, and exaggerates the scope of my approach. Cox was decided in 1965, well before the Supreme Court developed its special rules for dealing with content-based restrictions. In any event, the statute there, while arguably content-based, was clearly not viewpoint-based and thus did not implicate the same concerns as the one here As for Jackalone, I find it troublesome that the majority ignores the Circuit Rule which, as the majority concedes, provides that unpublished orders are not citable as precedents. Maj. op. at 1466. See also Western Union Telegraph Co. v. FCC, 773 F.2d 375, 377 n. 1 (D.C.Cir.1985) (admonishing counsel not to cite unpublished orders) (per Scalia, J., with Mikva, J., and Bork, J., concurring). While the majority seems to assume that a case is not cited "as precedent" unless it controls the decision, traditionally a case is used as precedent whenever it is "considered as furnishing an example or authority for an identical or similar case afterwards arising." Black's Law Dictionary 1059 (5th ed. 1979) (emphasis added). The majority clearly relies on Jackalone for its quality as precedent, and Rule 8(f) itself indicates that unpublished cases are only to be cited for purposes such as res judicata "which turn on the binding effect of the judgment, and not on its quality as precedent." Under the dictionary definition of precedent and the history of circuit practice under Rule 8(f) there is no support whatsoever for the majority's use of Jackalone in its decision. In any case, the fact that the order in Jackalone was all of three sentences and set out no background facts renders it useless even as an instructive guide. If, as the briefs tend to indicate, Jackalone merely held that the government rightfully denied a permit since, in view of the hostage crisis, there was "a clear and present danger to the public safety, good order, or health," see 36 C.F.R. Sec. 50.19(d)(2), there is no inconsistency. Such a regulation would be clearly content-neutral. Although the majority asserts that the regulation in Jackalone was actually applied based on the content and viewpoint of the speech, maj. op. at 1466 n. 12, the government's brief in Jackalone denies this. Brief for Federal Appellants at 11. If the Park Service had promulgated a permanent regulation banning all anti-Iranian demonstrations in the park, I certainly would argue that a viewpoint-neutral regulation should have been substituted. We, of course, have no idea from the order if the court in Jackalone even considered the "content" issue, which makes it even more farfetched to suggest that Jackalone represents the judgment of a panel of this court on any issue before us. The majority's failure to recognize the differing impacts of content-based and viewpoint-based regulation is again evidenced by its own hypothetical which asks whether "a locality that wished to prohibit the shouting of 'Fire!' in a crowded theatre" should not "be constitutionally required to outlaw the shouting of 'Encore' as well." Maj. op. at 1475. The majority misses the point that the fire/encore distinction is a content-based one, while Sec. 22-1115 is viewpoint-based. Building on the analogy, Sec. 22-1115 is equivalent to telling the audience they may yell encore, but may not boo at the end of a performance that they dislike. 23 Such a ban might be upheld solely on the basis of the important governmental interest in protecting embassy security. Cf. CISPES v. FBI, 770 F.2d at 468, 472-75 (5th Cir.1985); Concerned Jewish Youth v. McGuire, 621 F.2d 471 (2d Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1352, 67 L.Ed.2d 337 (1981). The fit between a total ban and the security interest would be tighter than that between Sec. 22-1115 and the security interst, which is not narrowly served by a content- and viewpoint-based restriction. Such a statute would still provide more protection than the general embassy statute, 18 U.S.C. Sec. 112, discussed supra at 17. This extra protection might, depending on the factual showings made, be reasonable in light of the peculiar security concerns in the District of Columbia, such as those the government discussed in its affidavits It is also possible that a content-neutral ban could be upheld, at least in part, based on the government's asserted "dignity" interest. Although I have concluded that dignity does not rise to the level of a compelling interest so as to justify the content-based restrictions of Sec. 22-1115, it might qualify as a "significant" enough interest to justify a content-neutral ban. Contrary to the majority's suggestion, maj. op. at 1466-67, there is no inconsistency in this position unless one sees fit to ignore two decades of Supreme Court precedent establishing dramatically different levels of scrutiny for content-based and content-neutral regulation of speech. See supra at 1479. 24 This is not to say that this balance would be the same in each and every case involving content-based distinctions. For example, where the goal of neutrality would require broad, outright prohibitions on otherwise protected speech, that might not be considered an acceptable alternative. See Redish, The Content Distinction in First Amendment Analysis, 34 Stan.L.Rev. 113, 136-37 (1981); Comment, Equal But Inadequate Protection: A Look at Mosley and Grayned, 8 Harv.C.R.-C.L.L.Rev. 469, 476 (1973). Similarly, even if one assumes that the Court treated the statute in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), as a traditional content-based distinction, but see supra note 5, any content-neutral statute there would have required forcing all theatres to move to the outskirts of the city. This is far different from establishing a 500 foot neutral zone. Moreover, since the objective in Young was to segregate the adult theatres, requiring all theatres to be in a single area would hardly have accomplished the goal. Finally, as the court in Young stressed, that statute did not involve viewpoint discrimination. See Young, 427 U.S. at 67-68, 96 S.Ct. at 2450-51 In this case, by contrast, a blanket bar against protests in the 500 foot zone would leave opportunities for expression elsewhere, as required of a content-neutral time, place, and manner regulation. See Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 654, 101 S.Ct. 2559, 2567, 69 L.Ed.2d 298 (1981) (discussing requirement of adequate alternative forum). As the majority repeatedly points out, closing off a 500-foot zone around embassies is a limited impingement on speech, if applied across-the-board. The majority's analysis is, of course, totally inapposite to the statute at hand, which involves a content-based restriction. The availability of a forum 500 feet away is only relevant when a content-neutral statute is involved, since the Court has "consistently rejected the suggestion that a government may justify a content-based prohibition by showing that speakers have alternative means of expression." Consolidated Edison Company, 447 U.S. at 541 n. 10, 100 S.Ct. at 2335 n. 10. 25 In Frend v. United States, 100 F.2d 691 (D.C.Cir.1938), cert. denied, 306 U.S. 640, 59 S.Ct. 488, 83 L.Ed. 1040 (1939), the court interpreted the permit provision of the statute's first clause in a manner that avoids this difficulty. The clause makes it unlawful to display the listed items within 500 feet of the listed buildings "except by, and in accordance with, a permit issued by the Chief of Police of the said District." Nonetheless, the court amazingly concluded that the statute [b]y its terms ... makes it a misdemeanor to do the prohibited things, and the provision authorizing the Superintendent of Police to issue a permit must be read as authorizing its issuance subject to the prohibitions of the resolution. That is to say, that only in those cases in which its use will not harass or bring into public odium the representatives of foreign governments, does power to issue exist. Id. at 694. This reading of the statute, is, of course, nonsensical. Only those who wish to engage in what is enumerated in the statute need to seek permits, yet, according to Frend permits may not be issued to anyone who intends to do that which is enumerated. Nonetheless, that portion of Frend does represent the law of the circuit until overruled by the full circuit or by the Supreme Court. Undoubtedly taking this into account, plaintiffs have not challenged the licensing scheme of the statute's first clause. 26 The D.C. police line regulation, also cited by the majority and upheld by this court, specified five emergency situations in which police could set up an exclusionary zone and order people away. Because the regulation specified which specific situations triggered its use, and did so without "rely[ing] on subjective terms to define proscribed conduct," 566 F.2d at 117-18, it was also found to be constitutional 27 The local District of Columbia courts have recognized the applicability of this doctrine in dealing with similar D.C. statutes in "sensitive" areas. In United States v. Nicholson, Nos. 20210-69A, et al. (D.C.Ct. of Gen.Sess. June 19, 1969), aff'd, 263 A.2d 56 (D.C.1970), Chief Judge, now District Court Judge, Harold H. Greene held that policemen in the United States Capital could not constitutionally use a standardless unlawful entry on property statute to order the defendants to leave the Capitol. See Dellums v. Powell, 566 F.2d 167, 178-79 (D.C.Cir.1977) (discussing Nicholson ). The Nicholson court then turned to D.C.Code Sec. 9-113 which forbids anyone to "parade, stand, or move in processions or assemblages in said United States Capitol Grounds, or to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement" except with the permission of the Speaker of the House and the President of the Senate, or in their absence from Washington, the Capitol Police Board. See D.C.Code Secs. 9-124, 9-125. The court held that this vesting of standardless discretion violated the principle that "in a government of laws, the regulation of conduct--particularly conduct in the sensitive area covered by the First Amendment--must be predicated on a set of definite rules, not on the opinions of police officers." See Dellums, 566 F.2d at 200 (reproduction of Nicholson decision) (emphasis added) 28 Under the majority's "trivial question doctrine" many of the Supreme Court's important first amendment decisions might never have been delivered since there were undoubtedly alternative forums for communication and the thinking processes of the community were not noticeably mutilated. See, e.g., United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) (invalidating restrictions within vicinity of Supreme Court building); Police Department v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (invalidating content-based restriction within 150 feet of school)	{ "pile_set_name": "FreeLaw" }
127 U.S. 507 (1888) ROBERTSON v. SICHEL. No. 269. Supreme Court of United States. Argued and Submitted May 1, 1888. Decided May 14, 1888. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. 514 Mr. Solicitor General for plaintiff in error. Mr. Edward Jacobs for defendant in error. MR. JUSTICE BLATCHFORD, after stating the case as above reported, delivered the opinion of the court. We are of opinion that there was error in the charge of the court, and that the defendant was not liable for the wrong, if any, committed by his subordinates, on the facts of this case. 515 There is nothing in the evidence to connect the defendant personally with any such wrong. No evidence was given that the officers in question were not competent, or were not properly selected for their respective positions. The subordinate who was guilty of the wrong, if any, would undoubtedly be liable personally for the tort, but to permit a recovery against the collector, on the facts of this case, would be to establish a principle which would paralyze the public service. Competent persons could not be found to fill positions of the kind, if they knew they would be held liable for all the torts and wrongs committed by a large body of subordinates, in the discharge of duties which it would be utterly impossible for the superior officer to discharge in person. This principle is well established by authority. It is not affected by the fact that a statutory action is given to an importer, to recover back, in certain cases, an excess of duties paid under protest; nor by the fact that a superior officer may be held liable for unlawful fees exacted by his subordinate, where lawful fees are prescribed by statute, and where such fees are given by law to the superior, or for the act of a deputy performed in the ordinary line of his official duty as prescribed by law. The government itself is not responsible for the misfeasances, or wrongs, or negligences, or omissions of duty of the subordinate officers or agents employed in the public service; for it does not undertake to guarantee to any person the fidelity of any of the officers or agents whom it employs; since that would involve it, in all its operations, in endless embarrassments, and difficulties, and losses, which would be subversive of the public interests. Story on Agency, § 319; Seymour v. Van Slyck, 8 Wend. 403, 422; United States v. Kirkpatrick, 9 Wheat. 720, 735; Gibbons v. United States, 8 Wall. 269; Whiteside v. United States, 93 U.S. 247, 257; Hart v. United States, 95 U.S. 316, 318; Moffat v. United States, 112 U.S. 24, 31; Schmalz's Case, 4 C. Cl. 142. The head of a department, or other superior functionary, is not in a different position. A public officer or agent is not responsible for the misfeasances or positive wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the subagents 516 or servants or other persons properly employed by or under him, in the discharge of his official duties. Story on Agency, § 319. In Keenan v. Southworth, 110 Mass. 474, it was held, that a postmaster was not liable for the loss of a letter, occasioned by the negligence or wrongful conduct of his clerk. The court said: "The law is well settled, in England and America, that the postmaster general, the deputy postmasters, and their assistants and clerks, appointed and sworn as required by law, are public officers, each of whom is responsible for his own negligence only, and not for that of any of the others, although selected by him and subject to his orders." The court cited, to sustain this view, Lane v. Cotton, 1 Ld. Raym. 646; S.C. 12 Mod. 472; Whitfield v. Le Despencer, Cowp. 754; Dunlop v. Munroe, 7 Cranch, 242; Schroyer v. Lynch, 8 Watts, 453; Bishop v. Williamson, 2 Fairf. (Maine), 495; Hutchins v. Brackett, 2 Foster (22 N.H.), 252. To the same purport are Bailey v. The Mayor, 3 Hill, 531; Conwell v. Voorhees, 13 Ohio, 523, 543; Story on Bailments, §§ 462, 463; 1 Bell Com. 468, 5th ed.; 2 Kent Com., 4th ed., 610, 611. The very question here involved came before the Circuit Court of the United States for the Southern District of New York, in the case of Brissac v. Lawrence, 2 Blatchford, 121, in June, 1850. The defendant was the collector of the port of New York. Imported goods belonging to the plaintiff had been deposited in a custom-house warehouse, and were either lost or mislaid there, or were delivered to some person not entitled to them. At the trial it was sought to show carelessness on the part of the defendant, as the head of the custom-house department, in the manner in which the books of the warehouse were kept, and also that the book-keeper was a person of intemperate habits and unfit for the situation. On the other hand, it was proved that the books were kept in conformity with the mode usually adopted at the time for keeping books of that kind; that the intemperate book-keeper had been discharged; and that, during a period of nineteen months, out of two hundred thousand packages of goods which had 517 been received at the warehouse in question, only two packages had been lost. Mr. Justice Nelson, in charging the jury, submitted to them the question whether the collector had been guilty of personal negligence in respect to the goods. In the course of the charge, the court said: "The collector is not personally responsible for the negligence of his subordinates in the custom-house department, and, therefore, he is not responsible for the negligence of persons employed in the warehouse department... . In order to charge the defendant with the loss, it is necessary that the plaintiffs should satisfy you, by affirmative and responsible testimony, that the collector was personally guilty of negligence in the discharge of his duty, either by misdeed or by omission... . This is a suit against the collector, who did not have charge of the goods; and, in order to render him liable, you must find him to have been guilty of personal neglect, misfeasance, or wrong... . In view of the fact that the collector of New York has charge of all the business from which two-thirds of the entire revenue of the United States is collected, and has thousands of subordinates, and upon the evidence that only one package out of every one hundred thousand which passed through the hands of those subordinates has been lost, it is strange that this case has been so urgently pressed, with the idea that, upon any principle of equity, much less of law, there could be any liability on the part of the collector." The jury found a verdict for the defendant. (See, also, United States v. Brodhead, 3 Law Reporter, 95; Wharton on Agency, § 550.) The judgment of the Circuit Court is reversed, and the case is remanded to that court with a direction to grant a new trial.	{ "pile_set_name": "FreeLaw" }
53 F.3d 332NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee,v.Vernard MULL, Defendant-Appellant. No. 94-5833. United States Court of Appeals, Sixth Circuit. April 27, 1995. Before: BOGGS and BATCHELDER, Circuit Judges; and QUIST, District Judge.* PER CURIAM. I. 1 On July 21, 1993, a grand jury indicted defendant Vernard Mull in a three-count superseding indictment. On November 4, 1993, Mull entered a guilty plea to Count 3, which charged him with possession with intent to distribute approximately 987 Dilaudid tablets. Each Dilaudid tablet contains 4 milligrams of active Dilaudid; the total weight of each Dilaudid tablet is 90 milligrams. Pursuant to the United States Sentencing Guidelines, the district court used the total weight of Dilaudid tablets to calculate a base offense level of 26 based on 987 Dilaudid tablets which converts (using the Guidelines Drug Equivalency Tables) to 222.08 kilograms of marijuana. Level 26 is the appropriate base offense level for offenses involving 100 to 400 kilograms of marijuana. See U.S.S.G. Sec. 2D1.1(c)(7). 2 On June 3, 1994, the district court sentenced Mull to a term of 78 months in prison to be followed by three years of supervised release. According to Mull's adjusted offense level of 28 and a criminal history category of I, the sentence handed down by the district court fell at the bottom end of the guideline range of 78 to 97 months. Mull filed this timely appeal on June 13, 1994. II. 3 Mull's primary argument on appeal is that his criminal sentence should be recalculated based on evidence that one Dilaudid tablet, weighing 90 milligrams, contains only 4 milligrams of hydromorphone hydrochloride. Mull contends that because hydromorphone hydrochloride is the only active ingredient in a Dilaudid tablet, only 4 milligrams of the total weight of the tablet should be used to determine the appropriate sentence in a Dilaudid conviction. Mull argues that Dilaudid is analogous to LSD, for which the Sentencing Guidelines mandate that calculation of the weight of the controlled substance is to be made without regard to the weight of the typical carrier medium such as blotting paper; therefore, according to Mull, the weight of the carrier material in Dilaudid pills should likewise be disregarded. 4 This Circuit addressed and rejected the identical argument in United States v. Landers, 39 F.3d 643, 647-48 (6th Cir.1994), where, citing Chapman v. United States, 500 U.S. 453 (1991), we held that the United States Sentencing Guidelines clearly intend for the entire weight of the mixture containing the drug to be calculated. As the commentary states: 5 Unless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance. If a mixture or substance contains more than one controlled substance, the weight of the entire mixture or substance is assigned to the controlled substance that results in the greater offense level. 6 U.S.S.G. Sec. 2D1.1(c), n. . We are bound by the decision in Landers. 7 Mull raises several additional issues in his response brief. Although these issues should have been raised in Mull's initial appellate brief,1 we nonetheless address them, and find that they have no merit. First, Mull challenges his sentence alleging that the district court erred in concluding that Mull did not accept responsibility for his role in the offense. Mull claims that he provided complete information to the Government concerning the offense, that he indicated his intention to enter a guilty plea, and that he subsequently entered a guilty plea to Count 3. According to Mull, these factors prove that he accepted responsibility for his role in the offense. 8 The district court's determination of the defendant's acceptance of responsibility is a question of fact that we review for clear error. United States v. Downs, 955 F.2d 397, 400 (6th Cir.1992), cert. denied, 114 S.Ct. 733 (1994). Absent extraordinary circumstances, review in this regard will nearly always result in sustaining the district's determination. Id. at 400. Furthermore, the mere fact that the defendant has entered a guilty plea does not entitle him to an acceptance of responsibility reduction. Id. Having found no extraordinary reason to question the finding of the district court, we affirm the court's finding with regard to acceptance of responsibility. 9 Finally, Mull challenges the two-level addition to his base offense level, arguing that the conduct charged--reckless endangerment during flight--constitutes a distinct crime, independent from Count 3, for which he is entitled to a jury trial. This claim too is without merit. 10 In order to comply with due process, a sentence imposed under the Sentencing Guidelines must be based on information that bears some minimal indicia of reliability beyond mere allegation to support its probable accuracy. See United States v. Gibson, 985 F.2d 860, 865 (6th Cir.), cert. denied sub nom. Baker v. United States, 113 S.Ct. 2981 (1993); United States v. Herrera, 928 F.2d 769, 773-74 (6th Cir.1991). Despite Mull's argument, "the constitutional protections afforded defendants at a criminal trial, including confrontation rights, are not available at sentencing proceedings to limit the court's consideration of the background, character and conduct of the defendant." United States v. Silverman, 976 F.2d 1502, 1511 (6th Cir.1992) (en banc), cert. denied, 113 S.Ct. 1595 (1993). The conduct the court may consider need not be part of the conduct for which defendant was indicted, or even illegal conduct. 18 U.S.C.A. Sec. 3553(a)(1) (West 1985) (court shall consider "the nature and circumstances of the offense and the history and characteristics of the defendant"); 18 U.S.C.A. Sec. 3661 (West 1985) ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense" which court may receive in sentencing). Evidence at sentencing may even include acquitted conduct to support an enhancement. United States v. Blankenship, 954 F.2d 1224, 1227 (6th Cir.), cert. denied, 113 S.Ct. 288 (1992). The evidence used to support an enhancement may include facts disclosed during the presentence conference, United States v. Wilson, 954 F.2d 374, 377 (6th Cir.1992), and any enhancement must be based on a preponderance of the evidence. United States v. Moored, 997 F.2d 139, 144 (6th Cir.1993). 11 Mull has already admitted that he was involved in a car chase following the charged offense. According to the sentencing transcript, when law enforcement officers attempted to arrest Mull, he fled in his car, the officers chased him, Mull crashed his car, and attempted to run. Mull admitted that the facts as stated by the Government were "completely accurate." As with all adjustments, once a finding has been made that a particular enhancement provision applies, the district court has no discretion to refuse to apply the enhancement. United States v. Medina, 992 F.2d 573, 591 (6th Cir.1993) (citing United States v. Feinman, 930 F.2d 495 (6th Cir.1991), cert. denied, 114 S.Ct. 1049 (1994). The district court did not err in applying the enhancement. III. 12 For the foregoing reasons, we AFFIRM the district court's Guideline calculation of the defendant's criminal sentence. Honorable Gordon J. Quist, United States District Court for the Western District of Michigan, sitting by designation 1 We note that although Mull's initial brief was filed by his counsel, his response brief was filed pro se	{ "pile_set_name": "FreeLaw" }
498 F.Supp.2d 454 (2007) HERMANDAD INDEPENDIENTE DE EMPLEADOS TELEFONICOS, Plaintiffs v. PUERTO RICO TELEPHONE COMPANY, Defendants. Civil No. 05-1777 (JAG). United States District Court, D. Puerto Rico. May 25, 2007. 455 Alejandro Torres-Rivera, Nora Vargas-Acosta, De Jesús, Hey & Vargas Law Office, San Juan, PR, for Plaintiff. Enrique R. Padro, Esq., Pedro J. Manzano-Yates, Esq., Pedro A. Buso-García, Esq., Fiddler, González & Rodríguez, San Juan, PR, for Defendant. OPINION AND ORDER GARCIA-GREGORY, District Judge. Pending before the Court are cross motions for Summary Judgment by defendant Puerto Rico Telephone Company ("PRTC") and by plaintiff Hermandad Independiente de Empleados Telefonicos ("HIETEL"), both of which were referred to United States Magistrate Judge Justo Arenas for Report and Recommendation. The Magistrate Judge issued a Report and Recommendation in which he recommended that the Court deny PRTC's motion and grant HIETEL's motion. PRTC timely filed objections to the Report and Recommendation. Upon de novo review of those portions of the Report and Recommendation to which PRTC objects, the Court REJECTS the Report and Recommendation in its entirety. However, the Court HOLDS IN ABEYANCE the motions for summary judgment and REMANDS the case to the Arbitrator for clarification of the remedy awarded in the case of Pagan's termination. FACTUAL BACKGROUND At, all relevant times, PRTC and HIETEL were parties to a collective bargaining agreement ("CBA"). The dispute among the parties arose from the suspension on December 22, 1999 and dismissal on September 5, 2001 of Walter Pagan Aguayo ("Pagan"), an employee of PRTC and member of HIETEL, the labor union which represents employees of PRTC that are part of its bargaining unit. The CBA provided that employee grievances were to be resolved by way of arbitration before the Bureau of Arbitration and Conciliation of the Department of Labor of Puerto Rico ("Bureau"). Accordingly, HIETEL filed a grievance before the Bureau challenging Pagan's suspension and a another challenging Pagan's termination. On November 10, 2004, the Arbitrator issued an award in the case of the suspension, determining that the suspension was unjustified. Accordingly, she reduced Pagan's suspension from ten (10) days to three (3) days and ordered that he be reimbursed for the seven (7) days that he did not receive salary. The parties later agreed to consolidate both cases. Consequently, on March 10, 2005, the Arbitrator issued a Resolution 456 stating that the award issued on November 10, 2004 should have also included the case challenging termination. The Arbitrator stated that the remedy awarded was applicable to both cases, since they had been consolidated because the matter was one of progressive discipline. On February 12, 2005, HIETEL received a check from PRTC payable to Pagan, reimbursing Pagan for the seven (7) days of unfair suspension, as required by the Arbitrator's award. PRTC did not reinstate Pagan to his former position. On June 3, 2005, HIETEL filed a charge for unfair labor practice in the Puerto Rico Labor Relations Board ("PRLRB"), seeking enforcement of the arbitration award for alleged breach of the CBA. HIETEL sought to have Pagan reinstated to his former position at PRTC. On July 14, 2004, a notice of removal pursuant to 29 U.S.C. §§ 185, 1441, 1446 was filed in this court by PRTC. (Docket No. 1). DISCUSSION A. Standard for Reviewing a Magistrate-Judge's Report and Recommendation A district court may, on its own motion, refer a pending matter to a United States Magistrate-Judge for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B); Fed. R.Civ.P. 72(b); Rule 503, Local Rules, District of Puerto Rico. Pursuant to Federal Rule of Civil Procedure 72(b) and Local Rule 510.2, the adversely affected party may contest the report and recommendation by filing written objections "[w]ithin ten days of being served" with a copy of the order. 28 U.S.C. § 636(b)(1). The Court must then make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. See United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); Lopez v. Chater, 8 F.Supp.2d 152, 154 (D.P.R.1998). The Court may accept, reject or modify, in whole or in part, the Magistrate-Judge's recommendations. "Failure to raise objections to the Report and Recommendation waives [that] party's right to review in the district court and those claims not preserved by such objections are precluded on appeal." Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir. 1992) (citations omitted). B. Standard for Motion for Summary Judgment Summary judgment is appropriate when the evidence before the court shows that "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)." Seaboard Sur. Co. v. Greenfield Middle Sch. Bldg. Comm., 370 F.3d 215, 218 (1st Cir.2004). An issue is genuine for purposes of summary judgment if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party" and a material fact is one which "might affect the outcome of the suit under the governing law." Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 90 (1st Cir.1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The moving party bears the initial responsibility of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party then bears the burden of "producing specific facts sufficient to deflect the swing of the summary judgment scythe." Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir.2003). Those facts, typically set forth in affidavits, depositions, and the like, must have evidentiary value; as a rule, "[e]vidence that is inadmissible at trial, such as inadmissible hearsay, may not be 457 considered on summary judgment." Vázquez v. López-Rosario, 134 F.3d 28, 33 (1st Cir.1998). "The mere existence of a scintilla of evidence" is insufficient to defeat a properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. at 252, 106 S.Ct. 2505. Notwithstanding, when ruling on a motion of summary judgment, the court must scrutinize the evidence in the light most agreeable to the nonmoving party, giving that party the benefit of any and all reasonable inferences. Cox v. Hainey, 391 F.3d 25, 27 (1st Cir.2004). While carrying out that task, the Court safely can ignore "conclusory allegations, improbable inferences, and unsupported speculation." Suárez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir.2000)(quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)). C. PRTC's Objections to the Report and Recommendation PRTC objects to the Magistrate-Judge's Report and Recommendation on three (3) grounds. First, PRTC states that the Report and Recommendation "does not include PRTC's Uncontested Facts, some of which were expressly admitted by HIETEL and others which were not opposed with proper documentary evidence." PRTC lists the uncontested facts that it understands were expressly admitted by HIETEL as well as the uncontested facts that it believes were not properly opposed by HIETEL. The second ground for objection by PRTC is that "the Magistrate Judge does not address the issue of whether HIETEL had the right to untimely file a review of the award." PRTC's argument is that "HIETEL's filing of a charge of an alleged unfair labor practice in the PRLRB seeking enforcement of the award, seven months after the award was tendered, was really a request for review of the award issued by the Arbitrator." As such, PRTC argues that it is time-barred, since the collective bargaining agreement provides a 30-day period to request review of an award. The third and last ground for objection by PRTC is that "the analysis used by the Magistrate Judge in the Report and Recommendation, in order to add a remedy to the award, is at odds with the relevant case law on the review of labor and arbitration decisions." PRTC argues that the award rendered by the Arbitrator was clear and that additionally, any doubt as to the scope of the award was elucidated by the Resolution issued subsequently. According to PRTC, the Magistrate-Judge's analysis is unreasonable because the Court cannot determine on the one hand that PRTC complied with the award and on the other that it must comply with the additional remedy of reinstatement, which was not mentioned by the Arbitrator. PRTC sustains that in not mentioning the remedy of reinstatement, the Arbitrator meant not to award it, especially since Pagan requested reinstatement by filing a grievance after he was terminated. The Magistrate-Judge arrived at the opposite conclusion: that if it would have been the intention of the Arbitrator not to order reinstatement, the award would have said so and that the Arbitrator must have meant to award reinstatement because he reduced the suspension from ten (10) to three (3) days; if the suspension sanction was unjust, then the dismissal must also be unjust. PRTC sustains that the Magistrate-Judge concluded this without pointing to where the Arbitrator stated that termination was unjust and without mentioning the offenses related to the termination, which according to PRTC, are separate from those on which the suspension was based. PRTC argues that because the offenses that led to the suspension 458 were different from those that led to the termination, a finding by the Arbitrator that the suspension was not proportional to the facts should not have led the Magistrate-Judge to conclude that the same was true regarding termination. Finally, PRTC claims that the Magistrate-Judge's conclusions are contrary to normative case law because his review of the arbitration award was not deferential. D. Analysis Since the matter raised in PRTC's third objection, regarding the clarity of the award in the case of Pagan's termination, disposes of the issue before the Court, we will limit our discussion to that matter. The only issue in this case hinges upon the interpretation of the Arbitrator's resolution regarding termination. Both parties argue that the remedy awarded by the Arbitrator regarding termination is clear and does not require clarification. However, the parties do not coincide on what the "clear" meaning of the resolution is: While PRTC sustains that the Arbitrator never ordered reinstatement, HIETEL sustains that she did. The controversy having been defined, we review the language of the Resolution issued on March 10, 2005. It states, in relevant part, as follows: The case of reference [re: dismissal] was consolidated at the request of the parties in question, with case A-01-1225 [re: suspension] because it deals with an issue of progressive discipline. The award in the case A-01-1225 was issued on November 10, 2004 and in the same it was determined that the suspension imposed upon the complainant was not justified, the sanction was modified to a suspension of three (3) working days and the payment of the salaries not earned for the remaining seven (7) days. Given that cases A-01-1225 [re: suspension] and A-02-924 [re: dismissal] were consolidated, the Award of reference should include the complaint in this last case. Having corrected the situation, case number A-02-942 [re: dismissal] is closed and its filing with prejudice is ordered since the remedy issued in case number A-01-1225 [re: suspension] is applicable in the case of reference [re: dismissal]. Arguably, the Arbitrator could have meant two things when she stated that the award issued in the case of the suspension included the complaint in the case of the termination: (i) that the reimbursement of seven (7) days worth of salary was the only remedy granted to Pagan (and that reinstatement, as an additional remedy, was not granted) or (ii) that the sanction of suspension, as modified by the Arbitrator, was the only sanction to be imposed on Pagan (and that reinstatement was granted since termination was not an approved sanction). The Arbitrator did not address termination or reinstatement directly, so she either did not provide for reinstatement (a remedy) or she did not provide for termination (a sanction). The Magistrate-Judge determined that it was the latter. However, this Court is not convinced that the matter is so clear. The scope of review of an arbitrator's decision in labor disputes is extremely narrow and "extraordinarily deferential." Dorado Beach Hotel Corp. v. Union de Trabajadores de la Industria Gastronomica Local, 959 F.2d 2, 3-4 (1st Cir.1992). "It is the arbitrator's view of facts and of the meaning of the contract that they [the parties] have agreed to accept." United Paperworkers Union v. Misco, 484 U.S. 29, 32-38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). Since the judicial review of an arbitration award is very limited, an award may only be declared unenforceable by the court when the arbitrator "dispenses his own brand of industrial justice" 459 and strays from the arbitration agreement. Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). The Court may not overturn the arbitrator's decision on the merits even when it is convinced that serious error has occurred if the "arbitrator is even arguably construing or applying the contract and acting within the scope of his authority." Eastern Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 62, 121 S.Ct. 462, 148 L.Ed.2d 354 (2000). Further, under the doctrine of "functus officio" in the law of arbitration, once the arbitrator issues his final award, his authority over the case ends and he lacks power to revise it. Glass Molders, Pottery Plastics & Allied Workers Int'l Union v. Excelsior Foundry Co., 56 F.3d 844, 845 (7th Cir.1995); Mercury Oil Refining Co. v. Oil Workers International Union, 187 F.2d 980, 983 (10th Cir.1951). The First Circuit has recognized that this doctrine precludes an arbitrator from vacating, modifying, supplementing, or correcting his award. Courier-Citizen v. Boston Electrotypers Union No. 11, 702 F.2d 273, 278 (1st Cir.1983). However, when a labor award is ambiguous, indefinite or unclear, the courts generally have recognized the power to remit to the arbitrator for clarification. "It is now well established that ambiguities and uncertainties of labor arbitration awards should not be resolved by the court acting as interpreter. Rather the proper approach is to resubmit the award to its author for clarification." Teamsters Local, v. Penn. Transp. Corp., 359 F.Supp. 344, 350 (D.C.Mass.1973). "[W]here the parties have elected to submit their disputes to arbitration, they should be completely resolved by arbitration, rather than only partially resolved. In some cases the carrying out of this philosophy will require remanding the matter to the arbitrators." Hanford Atomic Metal Trades Council v. General Electric Co., 353 F.2d 302, 308 (9th Cir. 1965). In a case where the issue was identical to the one before the Court now (each party contended that the language of the award supported its claims, and neither contended that the award was ambiguous), Transport Workers Union v. Philadelphia Transp. Co., 228 F.Supp. 423 (E.D.Pa.1964), the court directed the parties to resubmit the award to the same arbitrators for an explanation of its terms since it found that there existed a legitimate disagreement regarding the scope and effect of the award. In this case, the Arbitrator's decision regarding termination is ambiguous and there is a legitimate disagreement between the parties regarding the effect of the award. The Court is not in a position to enforce the award regarding termination when it cannot reasonably determine the Arbitrator's intent. Cautious not to substitute the Arbitrator's interpretation of the award with our own, and in compliance with the established role of the courts in arbitration issues, the Court understands that this matter should be remanded to the Arbitrator for clarification of his resolution issued on March 10, 2005. Accordingly, the parties are hereby directed to resubmit the matter to the same Arbitrator for clarification of whether she intended to provide for the reinstatement of Pagan or not. The remand of the matter to the Arbitrator is not meant to be an appeal or an opportunity to re-examine the final decision already rendered, nor does it require that the Arbitrator explain the reasons for her award. The Arbitrator is only directed to inform whether the award in the case of the termination of Pagan provided for his reinstatement to his former position. The court retains jurisdiction 460 and holds the parties' motions in abeyance until the award is clarified. CONCLUSION For the foregoing reasons, the Court REJECTS the Report and Recommendation, HOLDS IN ABEYANCE PRTC's Motion for Summary Judgment and HIETEL's Motion for Summary Judgment, and ORDERS the parties to resubmit the matter to the same Arbitrator for clarification as to the remedy awarded in the case of the termination of Pagan. IT IS SO ORDERED.	{ "pile_set_name": "FreeLaw" }
372 F.Supp.2d 430 (2005) AVENTIS PHARMACEUTICALS, INC., Merrell Pharmaceuticals, Inc., and Carderm Capital L.P., Plaintiffs, Barr Laboratories, Inc., Defendant. Impax Laboratories, Inc., Defendant. Teva Pharmaceuticals, USA, Inc., Defendant. Mylan Pharmaceuticals, Inc., Defendant. Dr. Reddy's Laboratories, Ltd. and Dr. Reddy's Laboratories, Inc., Defendants. No. CIV. 01-3627JAG, No. CIV.A. 02-1322JAG, No. CIV.A. 03-487JAG, No. CIV.A. 03-1179JAG, No. CIV.A. 03-1180JAG. United States District Court, D. New Jersey. May 31, 2005. 431 432 Gerald Sobel, Joel Katcoff, David K. Barr, Kaye Scholer LLP, New York, NY, Tricia B. O'Reilly, Liza M. Walsh, Connell Foley LLP, Roseland, for Plaintiffs Aventis Pharmaceuticals Inc., Merrell Pharmaceuticals Inc., and Carderm Capital, L.P. Richard S. Gresalfi, Steven J. Lee, William G. James, Kenyon & Kenyon, New York, NY, Allyn Z. Lite, Lite, DePalma, Greenberg & Rivas, LLC, Newark, for Defendant Impax Laboratories, Inc. and Teva Pharmaceuticals USA, Inc. Glenn J. Pfadenhauer, George A. Borden, Bonnie Dunninger Nathan, David I. Berl, Williams & Connolly, LLP, Washington, DC, Robert M. Goodman, C. Brian Kornbrek, Greenbaum, Rowe, Smith & Davis, LLP, Woodbridge, for Defendant Barr Laboratories, Inc. E. Anthony Figg, Elizabeth A. Leff, Rothwell, Figg, Ernst & Manbeck, Washington, DC, Arnold B. Calmann, Esq., Jeffrey Soos, Saiber, Schlesinger, Satz & Goldstein, LLC, Newark, for Defendant Mylan Pharmaceuticals, Inc. Thomas G. Roth, Law Offices of Thomas G. Roth, West Orange, Thomas C. Pontani, Martin B. Pavane, Alfred H. Hemingway, Jr., Cohen Pontani Lieberman & Pavane, New York, NY, for Defendants Dr. Reddy's Laboratories, Ltd. and Dr. Reddy's Laboratories, Inc. OPINION GREENAWAY, District Judge. This is a patent infringement suit in which Aventis Pharmaceuticals, Inc. ("Aventis"), Merrell Pharmaceuticals, Inc., and Carderm Capital, L.P. (collectively "Plaintiffs") have sued generic drug manufacturers, Barr Laboratories, Inc. ("Barr"), Impax Laboratories, Inc. ("Impax"), Teva Pharmaceuticals USA, Inc. ("Teva"), Mylan 433 Pharmaceuticals, Inc. ("Mylan"), Dr. Reddy's Laboratories, Ltd., and Dr. Reddy's Laboratories, Inc. ("Reddy") (collectively "Defendants") for infringement of U.S. Patent Nos. 5,738,872 ("the '872 patent"), 6,113,942 ("the '942 patent"), 5,855,912 ("the '912 patent"), 5,932,247 ("the '247 patent"), and 6,039,974 ("the '974 patent") which disclose solid unit dosage fexofenadine formulations sold in the United States under the tradenames ALLEGRA® and ALLEGRA-D®. Defendants filed a motion for summary judgment, pursuant to FED. R. CIV. P. 56, on their counterclaim that claims 1 and 2 of the '872 patent are invalid as anticipated, and that the '872, '912, '942, and '247 patents are not infringed. On June 30, 2004, this Court issued an opinion granting Defendants' motion for summary judgment against Plaintiffs for non-infringement of the '942 patent, the '912 patent, and the '247 patent. Aventis Pharms., Inc. v. Barr Labs., Inc., 335 F.Supp.2d 558, 586 (D.N.J.2004) [hereinafter "Summary Judgment Opinion"]. A ruling on the validity of claims 1 and 2 of the '872 patent was reserved pending a Markman hearing to resolve disputes regarding the construction of claims 1 and 2 of the patent. Id. at 585. The Court held a Markman hearing on September 9, 2004, September 21, 2004, September 24, 2004, and September 28, 2004 ("the Markman hearing") to resolve the issue of whether claims 1 and 2 of the '872 patent impart a product limitation of a disintegrant incorporated into the granules of the resulting product (i.e., separate intragranular disintegrant). After reviewing the reports of Plaintiffs' expert witness, Dr. Zak T. Chowhan, and Defendants' expert witness, Dr. Garnet E. Peck, and their respective testimony at the Markman hearing, this Court concluded that "one can practice the steps recited in claim 1 or 2, create a granulation, mill the granulation into powder form" and produce a powder that "do[es] not contain granules[,]" and therefore "do[es] not contain separate intragranular disintegrants." Aventis Pharms., Inc. v. Barr Labs., Inc., 341 F.Supp.2d 502, 511 (D.N.J.2004) [hereinafter "Markman Opinion"]. The Court concluded that the claims do not impart a limitation requiring the presence of a separate intragranular disintegrant. Id. BACKGROUND Presently before the Court is Defendants' renewed motion for summary judgment. The motion asserts that claims 1 and 2 of the '872 patent are anticipated by prior art references U.S. Patent Nos. 4,929,605 ("the '605 patent"), 4,996,061 ("the '061 patent"), 6,037,353 ("the '353 patent"), 5,375,693 ("the '693 patent"), and 4,254,129 ("the '129 patent") and, are thus, invalid under 35 U.S.C. § 102(b). I. STANDARD OF REVIEW A. Standard for Summary Judgment Summary judgment is appropriate under FED. R. CIV. P. 56(c) when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir.1996). In making this determination, the Court must draw all reasonable inferences in favor of the non-movant. Hullett v. Towers, Perrin, Forster & Crosby, Inc., 38 F.3d 107, 111 (3d Cir.1994); Nat'l State Bank v. Fed. Reserve Bank of N.Y., 979 F.2d 1579, 1581 (3d Cir.1992). Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as 434 to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey Township, 772 F.2d 1103, 1109 (3d Cir.1985). The party opposing the motion for summary judgment cannot rest on mere allegations and instead must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir.1995). "[U]nsupported allegations... and pleadings are insufficient to repel summary judgment." Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir.1990); see also FED. R. CIV. P. 56(e) (requiring nonmoving party to "set forth specific facts showing that there is a genuine issue for trial"). If the nonmoving party has failed "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, ... there can be `no genuine issue of material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir.1992) (quoting Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548). In determining whether there are any issues of material fact, the Court must resolve all doubts as to the existence of a material fact against the moving party and draw all reasonable inferences including on issues of credibility in favor of the nonmoving party. Watts v. Univ. of Del., 622 F.2d 47, 50 (3d Cir.1980). B. Anticipation A claim is invalid as anticipated if a single prior art reference published more than a year before the patent application was filed discloses each and every limitation set forth in a claim, either expressly or inherently.[1]In re Schreiber, 128 F.3d 1473, 1477 (Fed.Cir.1997). A patent is presumed valid when issued. 35 U.S.C. § 282. The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity. Id. The presumption of patent validity may be rebutted only by clear and convincing evidence. Uniroyal, Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044, 1050 (Fed.Cir.), cert. denied, 488 U.S. 825, 109 S.Ct. 75, 102 L.Ed.2d 51 (1988) (citations omitted). Anticipation is a question of fact. Medical Instrumentation and Diagnostics Corp. v. Elekta AB, 344 F.3d 1205, 1221 (Fed.Cir.2003) ("[t]he question of what a reference teaches and whether it describes every element of a claim is a question for the finder of fact."). Summary judgment is appropriate on a question of validity when the party challenging validity has shown by clear and convincing evidence facts supporting a conclusion of invalidity. Ryco, Inc. v. Ag-Bag Corp., 857 F.2d 1418, 1423 (Fed.Cir.1988) (citing American Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1360 (Fed.Cir.), cert. denied, 469 U.S. 821, 105 S.Ct. 95, 83 L.Ed.2d 41 (1984)). As explained in Scripps Clinic & Research Found. v. Genentech, Inc., "[i]nvalidity for anticipation requires that all of the elements and limitations of the claim are found within a single prior art reference. There must be no difference between the claimed invention and the reference disclosure, as viewed by a person of 435 ordinary skill in the field of the invention." 927 F.2d 1565, 1576 (Fed.Cir.1991) (citations omitted). Anticipation is a question of fact. To make such finding on summary judgment the court must determine that no facts material to the question are disputed; or that even if all material factual inferences are drawn in favor of the non-movant, there is no reasonable basis on which the non-movant can prevail. The standard of proof that would have to be met at trial must be considered. Id. (citations omitted). Thus, to find claims 1 and 2 of the '872 patent invalid as anticipated by prior art, this Court must find that even if all material factual inferences are drawn in favor of the Plaintiffs, there is no reasonable basis on which Plaintiffs can prevail. II. DISCUSSION In their renewed motion for summary judgment, Defendants assert that claims 1 and 2 of the '872 patent are invalid as anticipated. Plaintiffs argue that the prior art references, the '061, '129, '353, '605 and '693 patents, fail to anticipate because they do not disclose each and every element of claims 1 and 2 of the '872 patent. Plaintiffs further argue that this Court should deny Defendants' renewed motion for summary judgment on the grounds that genuine issues of fact remain in dispute as to three material inquiries. First, Plaintiffs argue that none of the five patents identified by Defendants as prior art discloses a tablet formulation of fexofenadine hydrochloride that contains a separate intragranular disintegrant or a powder formulation that contains a disintegrant. Second, Plaintiffs assert that the '061, '129, '353, and '693 patents do not disclose a binder that is water soluble, and therefore, these patents fail to disclose a pharmaceutical composition made with a "solution of a binding agent" which is disclosed in claims 1 and 2 of the '872 patent. Third, Plaintiffs contend that the '129, '353, and '693 patents fail to disclose the limitations of claims 1 and 2 of the '872 patent, as arranged in the claims.[2] For the reasons set forth below, this Court finds that the five prior art references cited by Defendants anticipate claims 1 and 2 of the '872 patent. This Court grants Defendants' motion for summary judgment. A. Plaintiffs Cannot Defeat Summary Judgment by Asserting a Product Limitation of a Tablet with a Separate Intragranular Disintegrant Plaintiffs argue that "[t]o anticipate a product-by-process claim, the reference must describe a product that can be made by the recited process steps." (Pls.' Br. Opp'n Defs.' Mot. Summ. J., at 2.) Referring to this Court's Markman Opinion, Plaintiffs argue that the '872 patent discloses a powder formulation of the claimed pharmaceutical composition containing a disintegrant and a non-powder formulation (e.g., a tablet) of the claimed pharmaceutical composition containing a separate intragranular disintegrant. Plaintiffs reason that the cited prior art references, the '061, '605, '129, '353, and '693 patents, do not disclose a powder formulation of fexofenadine hydrochloride with a disintegrant 436 or a tablet formulation with a separate intragranular disintegrant, and therefore, cannot anticipate claims 1 and 2 of the '872 patent. Plaintiffs contend that "a tablet made by incorporating a separate intragranular disintegrant" results in a different product, a product that is physically and functionally distinct from "a tablet made without incorporating an intragranular disintegrant." (Id. at 7.) Prior art references that fail to disclose powder formulations of the pharmaceutical composition with a disintegrant or tablet formulations with a separate intragranular disintegrant do not describe the product made by the process steps of claims 1 and 2 and therefore, cannot anticipate, Plaintiffs argue. (Pls.' Br. Opp'n Defs.' Mot. Summ. J., at 7-9.) As an initial matter, this Court must address certain legal and factual conclusions presented in Plaintiffs' characterization of the Markman Opinion. The '872 patent describes a fexofenadine hydrochloride drug formulation. Independent claims 1 and 2 of the '872 patent are product-by-process claims. Such claims are not specified in the statutes governing patents. This category of claims, product-by-process claims, is a judicial construct which has developed as a result of recognition that, due to the limitations of language, some products may be described only by the process used to make them.[3] "In determining patentability we construe the product as not limited by the process stated in the claims." Scripps, 927 F.2d at 1583. As this Court has explained in earlier opinions in this matter "`the correct reading of product-by-process claims is that they are not limited to the product prepared by the process set forth in the claims.'" Aventis, 335 F.Supp.2d at 581 (quoting Scripps, 927 F.2d at 1583).[4] "A novel product that meets the criteria of patentability is not limited to the process by which it was made." Vanguard Prods. Corp. v. Parker Hannifin Corp., 234 F.3d 1370, 1372 (Fed.Cir.2000). See also In re Thorpe, 777 F.2d 695, 697 (Fed.Cir.1985)("The patentability of a product does not depend on its method of production. If the product in a product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.") (citations omitted). As this Court further explained in its Markman Opinion construing the claims of the '872 patent, "[c]laims cannot be `saved' from invalidity by reading extraneous 437 limitations not present in the claims." Aventis, 341 F.Supp.2d at 505 (citations omitted). Differences between prior art and claimed products are only relevant to the extent that the characteristics are claimed. Aventis, 335 F.Supp.2d at 582. In the Markman Opinion, this Court resolved the issue of whether claims 1 and 2 of the '872 patent impart a product limitation of a disintegrant incorporated into the granules of the resulting product (i.e., a separate intragranular disintegrant). Claim 1 of the '872 patent reads: Claim 1: A pharmaceutical composition prepared by a wet granulation process comprising, preparing the wet granulation wherein a compound of formula: [graphic] wherein X is a number ranging from about zero to 5, and the individual optical isomers thereof, a diluent and a disintegrant are mixed with a solution of a binding agent; the wet granulation is screened, the wet granulation is dried, and the dry granulation is screened. ('872 patent, col. 33, lines 9-34.) Claim 2 is identical to Claim 1, except instead of reciting that "the dry granulation is screened," it recites the "the dry granulation is combined with a lubricant." ('872 patent, col. 33, lines 36-60.) In determining the proper construction of the claims, this Court must examine the claim language, patent specification, and prosecution history on record. Aventis, 341 F.Supp.2d at 507 (citing Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996)). The specification in Column 7 of the patent explains that: [t]he pharmaceutical composition of the present invention is administered orally in the form of a solid unit dosage. Examples of solid unit dosage forms are tablets, coated tablets, powders, dragees, hard or soft gelatin capsules and the like. The preferred solid unit dosage forms of the present invention are capsules, tablets and the like. ('872 patent, col. 7, lines 62-67). After examining the intrinsic evidence, this Court evaluated voluminous testimony presented by both parties at the Markman hearing and received and reviewed a number of articles and studies. In support of their arguments proffered at the Markman hearing, Plaintiffs submitted the expert report of Zak T. Chowhan, Ph.D., and Defendants submitted the expert report of Garnet E. Peck, Ph.D. On October 22, 2004, this Court issued the Markman Opinion and its conclusions regarding claim construction, finding that "one can practice the steps recited in claim 1 or 2, create a granulation, mill the granulation into powder form, and still be within the scope of [claims 1 and 2]." Aventis, 341 F.Supp.2d at 511. A powder formulation, clearly listed in the specification as one of the embodiments of the pharmaceutical composition, can be produced by practicing the steps in claims 1 and 2. Because powders do not contain granules, and therefore do not contain separate intragranular disintegrants, this Court concluded that the patent does not impart a claim limitation requiring a separate intragranular disintegrant. Id. For the Markman hearing and in the summary judgment proceedings, Plaintiffs filed four successive declarations of Dr. Chowhan. In his third declaration submitted by Aventis in support of their motion for reconsideration of this Court's Markman Opinion, Dr. Chowhan identifies several areas in which he disagrees with the Court's conclusions. However, as this Court noted in its opinion denying Plaintiffs' motion for reconsideration of the Markman Opinion, Dr. Chowhan's testimony in his third declaration contradicts 438 his testimony at the Markman hearing and therefore, is not credible. Aventis Pharms., Inc. v. Barr Labs., Inc., No. 01-3627, 2004 WL 3142511, at 4 (D.N.J. Dec. 20, 2004). In his third declaration, Dr. Chowhan asserts that no person skilled in the art would ever make granules using a wet granulation process only to grind those granules back into powder. (Third Decl. Dr. Chowhan, at ¶¶ 8-17). Yet, Dr. Chowhan testified during the Markman hearing that there may be circumstances that merit making granules using a wet granulation process and then grinding the granules back into powder, such as when one seeks to get a better distribution of the active ingredient amongst the other particles.[5]Aventis, 2004 WL 3142511, at 4. As indicated in this Court's opinion denying reconsideration of the Markman Opinion, the testimony of Plaintiffs' expert witness foreclosed the issue that Plaintiffs urge the Court to revisit. Having determined that powders are included among the embodiments of the pharmaceutical composition in the '872 patent and that powders do not contain separate intragranular disintegrants, this Court denied Plaintiffs' motion for reconsideration of the Markman Opinion and affirmed the conclusion that the language of claims 1 and 2 does not impart a product limitation of a disintegrant incorporated into granules. Aventis, 341 F.Supp.2d at 511 ("[c]onsequently, ... the language of claims 1 and 2 does not impart a product limitation of a disintegrant incorporated into granules.") During oral argument on Defendants' instant motion, Plaintiffs argued that the issues reviewed in the Markman Opinion are not relevant to the resolution of the present inquiry regarding anticipation. (3/7/05 Hr'g Tr. at 7-9.) According to Plaintiffs, this Court's holding, that one could practice the process steps in claims 1 and 2 of the '872 patent and produce a powder not containing a separate intragranular disintegrant, leaves unresolved the question of whether there is a separate intragranular disintegrant in other solid unit dosage forms of the product, such as tablets or capsules. (Id.) Plaintiffs argue that this Court cannot reach the issue of anticipation because the meaning of the term "pharmaceutical composition" remains in dispute. According to Plaintiffs, a pharmaceutical composition, made by practicing claims 1 and 2, that is a tablet or a capsule with a separate intragranular disintegrant is physically and structurally distinct from a tablet or a capsule made without a separate intragranular disintegrant. Plaintiffs contend that Defendants' expert witness, Dr. Peck, admitted that there are physical and structural differences in a tablet with a separate intragranular disintegrant and one without a separate intragranular disintegrant. Dr. Peck acknowledged, Plaintiffs argue, that there is a difference in the distribution of the disintegrants in the finished tablet depending on where you originally placed the disintegrant particles, within the granules as opposed to originally having them put outside the granules. (9/9/04 Hr'g Tr. 140-141.) Plaintiffs argue that Dr. Peck admitted that physical structural difference has an effect on how the tablet works. 439 (Id.) Based on these admissions, Plaintiffs further argue that this Court should find that a tablet with a separate intragranular disintegrant cannot be compared to a tablet without a separate intragranular disintegrant, and because the products are different, one cannot anticipate the other. As the Federal Circuit noted in Amgen, Inc., v. Hoechst Marion Roussel, Inc., it is the claims that measure the invention. 314 F.3d 1313, 1325 (Fed.Cir.2003) (citing SRI Int'l v. Matsushita Elec. Corp., 775 F.2d 1107, 1121 (Fed.Cir.1985) (en banc)). Differences that do not constitute claim limitations or product limitations imparted by characteristics or properties of the '872 patent will not preclude a finding of anticipation. Oakley, Inc. v. Sunglass Hut Intl., 316 F.3d 1331, 1339-1343 (Fed.Cir.2003). After carefully construing claims 1 and 2 at the Markman hearing, this Court concluded that the presence of a separate intragranular disintegrant is not a claim limitation. Column 7 in the specification indicates the pharmaceutical composition created by one practicing the process steps of claims 1 and 2 of the '872 patent may take the form of a tablet, a capsule, or a powder. Because the powder form of the pharmaceutical composition does not have the characteristic of a separate intragranular disintegrant in the product, this Court found no grounds for imparting such a limitation. Plaintiffs ask the Court to apply different interpretations to the same term pharmaceutical composition based on the form of the product, i.e., tablet, capsule, or powder. Noting that this Court has found that there is no claim limitation requiring a separate intragranular disintegrant in the powder form produced when one practices claims 1 and 2, Plaintiffs petition the Court to find that there is such a claim limitation when the product of the claims is a tablet or a capsule. This Court declines Plaintiffs' current entreaty to revisit issues resolved in the Markman Opinion and to construe pharmaceutical composition differently for each of the embodiments produced when the claims are practiced. B. Plaintiffs Cannot Defeat Summary Judgment by Proposing Claim Limitations Where None Exist Claims 1 and 2 of the '872 patent disclose a diluent and a disintegrant that are "mixed with a solution of a binding agent[.]" ('872 patent, col. 33, lines 31, 58.) Plaintiffs posit that claims 1 and 2 permit the use of only those binding agents capable of "going into a solution" or forming a granulating solution. (Pls.' Br. Opp'n Defs.' Mot. Summ. J., at 10.) Plaintiffs contend that the '061, '129, '353, and '693 patents describe pregelatinized starch mixed with water as the binding agent. According to Plaintiffs, the '061, '129, '353 and '693 patents fail to anticipate and fall outside the scope of the claims because they disclose binding agents that cannot make a granulating solution. In fact, the cited prior art references disclose starch binders. The '061 patent describes a wet granulation in which terfenadine, microcrystalline cellulose, pregelatinized corn starch,[6] and calcium carbonate are granulated with a solution of polysorbate 80 in water. ('061 patent, col. 7, lines 7-18.) Example 10 of the '129 patent employs starch as a binding agent.[7] ('129 patent, col. 16, lines 55-68.) Finally, the '693 patent discloses lactose, starch, pregelatinized 440 maize starch, and magnesium stearate. ('693 patent, col. 11, lines 19-30.) According to Plaintiffs, a pregelatinized starch does not form a granulating solution; rather, it forms a paste. Plaintiffs argue that the use of the term "mix[ing] with a solution of a binding agent" in claims 1 and 2 of the '872 patent specifically excludes a dispersion. (Pls.' Br. Opp'n Defs.' Mot. Summ. J., at 12.) The issue, Plaintiffs contend, is a matter of claim construction that requires resolution of the meaning of the term as it would be understood by one of ordinary skill in the art. In his fourth declaration submitted in this matter, Dr. Chowhan describes a dispersion as "a distribution of finely divided particles in a medium[,]" while describing a solution as a "single, homogeneous liquid, solid or gas phase that is a mixture in which components (liquid, gas, solid, or combinations thereof) are uniformly distributed throughout a mixture." (Fourth Decl. Dr. Chowhan, Ex. B, McGraw-Hill Dictionary of Scientific and Technical Terms, 627, 1274 (6th Ed., 2003).) While Plaintiffs characterize the issue as one of claim construction, the critical issue before this Court is whether the disputed language presents a structural product limitation or describes a product characteristic that is a claim limitation. Scripps, 927 F.2d at 1583. In determining patentability, this Court construes the product as not limited by the process stated in the claims. See id. The language at issue, "mixed with a solution of a binding agent[,]" describes a process step. ('872 patent, col. 33, lines 31, 58.) For the purposes of the anticipation inquiry, a process step presents a claim limitation only if it establishes product characteristics that are claimed. While product-by-process claims are not limited to the product prepared by the process set forth in the claims, process steps may establish product characteristics which are claim limitations. In an infringement or validity analysis, characteristics or product properties imparted by process steps recited in product-by-process claims are only relevant, however, to the extent that the resulting characteristics are claimed. Aventis, 335 F.Supp.2d at 586 (citing E.I. du Pont de Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1433 (Fed.Cir.1988)) (emphasis added). Plaintiffs do not argue that "mix[ing] with a solution of a binding agent" presents a structural product limitation. Plaintiffs do not identify a product characteristic that is claimed. Moreover, Plaintiffs do not contend that use of a solution with a fully dissolving binding agent, rather than starch, in the wet granulation process makes any difference in the claimed pharmaceutical composition. Differences between prior art and claimed products "are only relevant ... to the extent that the ... characteristics are claimed." Aventis, 335 F.Supp.2d at 582. The language at issue, "mixed with a solution of a binding agent[,]" does not present a structural product limitation or a product characteristic that is claimed. As a matter of claim construction, Plaintiffs argue, the claims describe a pharmaceutical composition that contains a binding agent capable of forming a granulating solution and a pharmaceutical composition that does not contain a binder capable of forming a granulating solution falls outside the literal scope of the claims. However, construing the claims confirms that the language at issue describes a process step and does not present a product limitation or characteristic that is claimed. Furthermore, claim construction serves to demonstrate that Plaintiffs' interpretation of the term at issue conflicts with the specification 441 and the testimony of Plaintiffs' own expert witness, Dr. Chowhan. 1. Construing "A Solution of a Binding Agent" Claim construction is a matter of law to be resolved by the Court. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). Claim terms are presumed to have the ordinary and customary meanings ascribed to them by those of ordinary skill in the art. Sunrace Roots Enter. Co. v. SRAM Corp., 336 F.3d 1298, 1302 (Fed.Cir.2003). A term's ordinary meaning must be considered in the context of intrinsic evidence, including the claims, the specification, and the prosecution history. 3M Innovative Props. Co. and Minnesota Mining and Mfg. Co. v. Avery Dennison Corp., 350 F.3d 1365, 1371 (Fed.Cir.2003) (citations omitted). The patent claims, specification, and prosecution history together constitute the intrinsic evidence of the claim's construction and "the most significant legally operative meaning of disputed claim language." Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). In construing the terms of a patent, the court must examine the specification to determine whether the patentee used the claim term consistent with its ordinary meaning or acted as his own lexicographer in defining the term. See, e.g., Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1250 (Fed.Cir.1998). Thus ... it is always necessary to review the specification to determine whether the inventor has used any terms in a manner inconsistent with their ordinary meaning. The specification acts as a dictionary when it expressly defines terms used in the claims or when it defines terms by implication.... "[c]laims must be read in view of the specification, of which they are a part." The specification contains a written description of the invention which must be clear and complete enough to enable those of ordinary skill in the art to make and use it. Thus, the specification is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term. Vitronics Corp., 90 F.3d at 1582 (quoting Markman, 52 F.3d at 979). 2. The Language of the Claims and the Specification Plaintiffs suggest that the term mixed with a solution of a binding agent as used in the claims, has the customary meaning that would be ascribed to it by one of ordinary skill in the art. According to Plaintiffs, the word "solution" requires reading the process step to describe a water soluble binder that goes into a solution or dissolves. Plaintiffs contend that "[t]his construction of claims 1 and 2 is mandated by the ordinary meaning of the claim term `solution,' as well as by the specification." (Pls.' Br. Opp'n Defs.' Mot. Summ. J., at 11.) Plaintiffs refer the Court to the definitions of dispersion and solution in the McGraw-Hill Dictionary of Scientific and Legal Terms, defining a dispersion as a distribution of finely divided particles located in a medium and defining a solution as components that are uniformly dispersed throughout a mixture. (Fourth Decl. Dr. Chowhan, Ex. B, McGraw-Hill Dictionary of Scientific and Technical Terms, at 627, 1274.) The specification of the '872 patent teaches that the following binders may be used in practicing claims 1 and 2: gelatin, polyvinylpyrrolidone, pregelatinized starch, povidone, and cellulose derivatives. ('872 patent, col. 13, lines 26-29.) The 442 examples of permissible binders explicitly include pregelatinized starch, the very binder that Plaintiffs argue cannot be used to practice claims 1 and 2. In the discussion of the preferred combination of inert ingredients, the '872 patent describes combinations that include pregelatinized starch as a binder. ('872 patent, col. 13, lines 52-57.) Finally, Table 5 of the patent lists pregelatinized starch among the preferred inert ingredients. ('872 patent, col. 14, lines 10-29.) This Court finds Plaintiffs' characterization of the claim language "mix[ing] with a solution of a binding agent" to be inconsistent with the language in the specification. In order to reach the conclusion Plaintiffs proffer, this Court would have to disregard the language in the specification of the '872 patent and the testimony of Plaintiffs' expert witness, Dr. Chowhan. An examination of the intrinsic evidence reveals that Plaintiffs cannot demonstrate that a soluble solution of a binding agent is a characteristic of claims 1 and 2. The query raised by an anticipation defense is whether prior art describes every limitation of the claims. In re Cruciferous Sprout Litig., 301 F.3d 1343, 1349 (Fed.Cir.2002). Here, Plaintiffs have failed to establish that a soluble binder is a limitation of the claims. No intrinsic evidence supports Plaintiffs' argument that the claims distinguish between soluble and insoluble binders. This Court finds that the mixing of a solution of a binding agent is a process step and not a structural limitation or a characteristic that imparts a limitation. 3. Extrinsic Evidence Extrinsic evidence consists of all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treaties. Markman, 52 F.3d at 980. Plaintiffs argue that "[p]ersons of skill in the art understand that certain binding agents can form granulating solutions because the binding agent is soluble in the granulating liquid, while other binding agents are insoluble and are dispersed within or wetted by the granulating liquid." (Fourth Decl. Dr. Chowhan, at ¶ 22.) In support of this argument, Plaintiffs submit the Fourth Declaration of Dr. Chowhan, who explains that "it is readily understood by one skilled in the art that starch and pregelatinized starch are not soluble excipients, but form dispersions." (Id.) Dr. Chowhan's Fourth Declaration in support of Plaintiffs' nascent assertion that the term "mix[ing] a solution of a binding agent" requires a soluble excipient is, however, inconsistent with his earlier declarations and sworn testimony.[8] 443 During the Markman hearing, Dr. Chowhan testified that "any binder can be used" to practice claims 1 and 2.[9] While his testimony could be regarded, in isolation, as the conventionally flippant response of an expert witness on cross-examination, Dr. Chowhan's later testimony further affirms his opinion that the binders listed in the specification of the '872 patent can be used to practice claims 1 and 2. In response to subsequent questions, Dr. Chowhan's testimony which specifically addresses the formation of granules in a wet granulation-suggests no significant issues arise out of the use or substitution of the binders listed in the specification. (9/21/04 Hr'g Tr. at 67-69.) As noted above, the specification clearly includes pregelatinized starch as a binding agent that may be used to practice claims 1 and 2. Moreover, Dr. Chowhan's Declaration in Support of Plaintiffs' Opposition to Defendants' Motions for Summary Judgment reflects his opinion that mannitol and corn starch binders used in Dr. Reddy's formulation could be used as a binding agent when practicing the process steps in claims 1 and 2. (Decl. Dr. Chowhan in Support of Pls.' Opp'n Defs.' Mot. Summ. J., Aug. 7, 2003, at ¶ 39.) In response to the allegation of infringement, Dr. Reddy's had asserted that its tablet formulation did not contain a binder. Dr. Chowhan concluded that Dr. Reddy's position, that its formulation did not contain a binder, was inconsistent with his "long experience in the field." (Id.) Dr. Chowhan determined that "mannitol likely function[ed] as the binding agent in Dr. Reddy's formulation." (Id.) Dr. Chowhan concluded that Dr. Reddy's "process is consistent with a wet granulation process which uses a binding agent to form granules from individual particles." (Id.) Dr. Chowhan further concluded that "regardless of which ingredient used by Dr. Reddy is functioning as a binder, ... Dr. Reddy's process uses a wet granulation process and a binding agent as set forth in claims 1 and 2 of the '872 patent." (Id. at ¶¶ 40-42.) Dr. Chowhan's conclusions that Dr. Reddy's used mannitol or corn starch as a binder and that Dr. Reddy's process infringed claims 1 and 2 of the '872 patent contradicts the conclusion in Dr. Chowhan's Fourth Declaration that starch may not be used to practice claims 1 and 2.[10] As the Federal Circuit noted in Scripps, "claims must be construed the same way for validity and infringement[.]" 927 F.2d at 1583. See also Bristol-Myers Squibb Co. v. Ben Venue Labs., Inc., 246 F.3d 1368, 1373 (Fed.Cir.2001) ("[T]hat which would literally infringe if later anticipates if earlier." (citation omitted)). The process step of "mix[ing] with a solution of a binding agent" does not present a structural product limitation or describe a product characteristic that imparts a limitation. This Court finds unavailing Plaintiffs' argument that the '061, '129, '353 and '693 444 patents fail to disclose a soluble excipient and therefore, fail to anticipate. Plaintiffs thus fail in arguing that the use of a starch binder causes the prior art patents to fall outside the scope of claims 1 and 2. This Court finds that the '061, '129, '353, '605 and '693 patents disclose each and every element of claims 1 and 2 of the '872 patent. No genuine issues of material fact remain in dispute and therefore, this Court grants Defendants' motion for summary judgment. C. Arranged As In The Claim Additionally, Plaintiffs argue that the '129, '353 and '693 patents do not anticipate because they fail to disclose each of the elements of the claimed invention "arranged as in the claim." (Pls.' Br. Opp'n Defs.' Mot. Summ. J., at 14.) According to Plaintiffs, the '129, '353 and '693 patents may not be found to anticipate merely because each contains, somewhere in its text, the terms pharmaceutical composition, fexofenadine hydrocholride, a diluent, a disintegrant, a binding agent, and a lubricant. (Id. at 16.) Plaintiffs contend that Defendants may not merely combine disclosures, gathering elements from different parts of references to prove anticipation. During oral argument, Plaintiffs argued that the language "arranged as in the claim" must be interpreted to impose a requirement regarding the serial recitation or organization of the elements of the claim or else the language would be superfluous. Plaintiffs further argue that Example 10 of the '129 patent describes a tablet formulation with a different active ingredient ((ethyl 4-[4-[4-(h ydroxydiphenylmethyl)-1-piperidinyl]-1-hydroxybutyl]-a-a dimethylbenzeneace) than the active in the '872. Defendants' argument in tate) of anticipation, Plaintiffs contend, requires substituting fexofenadine hydrochloride disclosed in a different example for the active ingredient in Example 10. According to Plaintiffs, one skilled in the art would understand that a formulation that is described as suitable for a particular active ingredient may not be suitable for a different active ingredient. (Fourth Decl. Dr. Chowhan ¶¶ 12-15, 30.) Plaintiffs raise a similar argument regarding Example 5 of the '693 patent. The Federal Circuit has explained that to anticipate a claim, a reference must disclose every element of the challenged claim. See PPG Indus., Inc. v. Guardian Indus. Corp., 75 F.3d 1558, 1566 (Fed.Cir.1996). Further, the reference must be sufficiently clear so as to prove the existence of each and every element in the reference. See Motorola, Inc. v. Interdigital Tech. Corp., 121 F.3d 1461, 1473 (Fed.Cir.1997). The standard reflects from the well-recognized requirement that the exact subject matter claimed must be described by the allegedly anticipating reference. C.R. Bard, Inc. v. M3 Sys., Inc., 157 F.3d 1340, 1349 (Fed.Cir.1998); Richardson v. Suzuki Motor Co. Ltd., 868 F.2d 1226, 1236 (Fed.Cir.1989); Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 894 (Fed.Cir.1984). One of the earliest uses by the Federal Circuit of the language "arranged as in the claim" appears to have been in Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1542 (Fed.Cir.1983). The Federal Circuit appears to have used the language in several decisions since Connell v. Sears.[11] None 445 of these precedents suggests the interpretation of the language that Plaintiffs propose. The language, "arranged as in the claim," does not create a distinct inquiry in the anticipation analysis. The standard for [a]nticipation requires the presence in a single prior art reference disclosure of each and every element of the claimed invention, arranged as in the claim. In deciding the issue of anticipation, the trier of fact must identify the elements of the claims, determine their meaning in light of the specification and prosecution history, and identify corresponding elements disclosed in the allegedly anticipating reference. Lindemann, 730 F.2d at 1458 (citations omitted). Plaintiffs cannot refer this Court to any precedent supporting their argument that the language "as arranged in the claim" imposes a separate requirement in the anticipation standard. Plaintiffs direct the Court to Novo Nordisk North America v. Becton Dickinson & Co. and note that the case is instructive. 96 F.Supp.2d 309, 311-12 (S.D.N.Y.2000). In their opposition papers, Plaintiffs argue that the Novo Nordisk Court "den[ied] summary judgment and reject[ed] anticipation because a necessary element of a claimed combination was listed separately in another portion of the asserted reference." (Pls.' Br. Opp'n Defs.' Mot. Summ. J., at 15.) Careful review of the Novo Nordisk decision, however, reveals that the court denied summary judgment because a genuine issue of material fact remained in dispute Plaintiff and Defendant's experts offered contrary opinions regarding whether an article, featuring a needle hub for a 27-gauge needle in an insulin injecting system on the cover of an article that contained a written description of a 30-gauge needle in the text, disclosed the 30-gauge needle used in the challenged patent.[12] 96 F.Supp.2d at 309-312. In its analysis on the issue of anticipation, the Novo Nordisk Court noted that these disputed issues of material fact prevented the court from determining whether the prior art taught each and every element of the claimed invention; whether the prior art disclosed the elements as arranged in the claims; and whether the prior art was enabling. Plaintiffs emphatically refer this Court to the enumerated grounds for denying summary judgment. Plaintiffs argue that the Court enumerated, as a distinct ground for denying summary judgment, the question of "whether the prior art disclosed the elements as arranged in the claim." Id. at 312. The standard for anticipation clearly requires that prior art disclose all limitations of the claimed invention. Lindemann, 730 F.2d at 1458. This Court shall not, however, read the standard to require the newly proposed serial obligations that Plaintiffs advocate. The Federal 446 Circuit has rejected attempts by plaintiffs to read additional requirements into the anticipation standard. See In re Bond, 910 F.2d 831, 832-33 (Fed.Cir.1990) (rejected attempt to require that prior art present an ipsissima verba, verbatim, recitation of the limitations). While there may be instances in which the order of the elements in a challenged claim contributes to the claim's novelty, the order or organization of the elements is not at issue here. Plaintiffs' contentions reflect an understanding that all of the elements in claims 1 and 2 must appear in a single example of each prior art reference in order for the prior art to anticipate. The Federal Circuit has explicitly rejected the notion that anticipation requires that all limitations of the claims are described in a single example of the prior art reference. Glaxo Group Ltd. v. Apotex, Inc., 376 F.3d 1339, 1348 (Fed.Cir.2004) (citing In re Spada, 911 F.2d 705, 708 (Fed.Cir.1990)). According to the Federal Circuit, "[a]nticipation requires that all limitations of the claimed invention are described in a single reference, rather than a single example in the reference." Id. at 1348. This Court declines Plaintiffs' invitation to adopt an additional element in the anticipation standard requiring that all elements in an anticipating claim appear in a single example within the reference. This Court finds that each of the cited prior art references discloses each and every limitation of claims 1 and 2, and therefore, under 35 U.S.C. § 102(b), the references anticipate claims 1 and 2 of the '872 patent. CONCLUSION Based on the above reasoning, this Court GRANTS Defendants' motion for summary judgment of invalidity of claims 1 and 2 of the '872 patent. Defendants have demonstrated by clear and convincing evidence that one of ordinary skill in the art would interpret the cited references, the '605, '061, '353, '693 and '129 patents, as disclosing each and every limitation of the claimed invention. Claims 1 and 2 of the '872 patent are invalid as anticipated and therefore, Defendants' motion for summary judgment is GRANTED. NOTES [1] "A person shall be entitled to a patent unless ... (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States." 35 U.S.C. § 102(b). [2] While Plaintiffs present three arguments against the five patents generally, Plaintiffs' opposition papers reflect that only certain arguments are applicable to certain of the five identified prior art references. (Pls.' Br. Opp'n Defs.' Mot. Summ. J., at 6-25.) Plaintiffs do not argue that the '605 patent fails to disclose a "solution of a binding agent." (Id. at 6-13.) In addition, Plaintiffs do not argue that the '601 and '605 patents fail to anticipate because the elements are not "arranged as in claims." (Id. at 6-14.) [3] For further discussion of product-by-process claims, see generally Richard A. Anderson and Lawrence A. Hymo, Product-by-Process Claims: Time for Reexamination, 3 Fed. Cir. B.J. 131 (1993). [4] While a different panel of the Federal Circuit has held that process terms in product-by-process claims do serve as limitations in determining infringement, Atlantic Thermoplastics Co. v. Faytex Corp., 970 F.2d 834 (Fed.Cir.1992), this Court continues to follow Scripps which was decided approximately one year before Atlantic Thermoplastics. See Aventis, 335 F.Supp.2d at 581-582 n. 21. Under Federal Circuit law, where there are conflicting precedents, the earlier precedent controls. See DeKalb v. Northrup King Co., No. 96C50169, 1997 WL 587492, *2 (N.D.Ill. Aug. 14, 1997) (applying the Federal Circuit's conflict rule, the court will apply Scripps); Trustees of Columbia Univ. v. Roche Diagnostics, 126 F.Supp.2d 16, 32 (D.Mass.2000)("When confronted with two panel opinions in direct conflict, the earlier decision is controlling."); but see Tropix, Inc. v. Lumigen, Inc., 825 F.Supp. 7, 10 (D.Mass.1993)("It would appear to me, even in the confused state of the record, that a majority of the judges of the Federal Circuit would rule that Atlantic states the controlling law, and I so rule in this case.") Until the Scripps decision is rejected by a hearing en banc, it is the precedential decision. As the earlier panel opinion, Scripps is controlling and this Court follows its reasoning. [5] Q: Doctor, you told me that there are reasons to use a granulation no matter what the final dosage form is to get a better distribution of your active amongst the other particles and you would get better distribution of a very small amount of active by making granulation, making granules, and milling that than you would as compared to dry blending, wouldn't you? A: That is a special case when you have a low dose and you want to administer the drug in micrograms, or even up to a few milligrams. (9/24/04 Hr'g Tr. at 93.) [6] The pregelatinized starch is identified as Starch 1500. ('061 patent, col. 5, line 5.) [7] The '353 patent incorporates the '129 patent by reference. [8] In addition to the inconsistencies discussed below, Defendants indicate that Plaintiffs' responses to discovery requests are also inconsistent with their argument that a starch binder may not be used to practice claims 1 and 2. Defendants posit that Plaintiffs initially responded to Defendant Barr's First Set of Interrogatories, Interrogatory No.2 inquiring as to the elements of the claims of the patent-in-suit by indicating that the fexofenadine hydrochloride layer in the ALLEGRA® tablet composition "is prepared wherein fexofenadine hydrochloride, microcrystalline cellulose (a diluent) and croscarmellose sodium (a disintegrant) are mixed with pregelatinized starch and water (a solution of a binding agent)." (Pls.' Resps. to Def. Barr Labs., Inc.'s First Set of Interrogs., June 1, 2004, at 27.) Aventis very recently amended its responses to Barr's First Set of Interrogatories, substituting the following for the above initial response to Interrogatory No. 2: "[t]he '872 patent is not listed in the Orange Book for ALLEGRA® and ALLEGRA-D® tablets, and plaintiffs do not contend that the '872 patent covers such products." (Pls.' First Am. Resps. to Def. Barr Labs., Inc.'s First Set of Interrogs., Dec. 28, 2004, at 21.) [9] Q: Now, as I understand it, it's your opinion that any of the well-known binders can be used in practicing Claims One and Two of the '872 patent to make granules. Is that right? A: Yeah, any binder can be used. (9/21/04 Hr'g Tr. at 67:6-9.) [10] According to Dr. Chowhan's Fourth Declaration, Claims 1 and 2 of the '872 patent require that the binding agent be one that can form a granulating solution. A formulation in which the binding agent is incapable of forming a granulating solution cannot be made by the process of claims 1 and 2. Accordingly, the language of claims 1 and 2 excludes the use of starch paste and pregelatinized starch as binders because they do not form solutions of a binding agent. (Fourth Decl. Dr. Chowhan ¶ 24.) [11] Rosco, Inc. v. Mirror Lite Co., 120 Fed.Appx. 832, 836 (Fed.Cir.2005); Brown v. 3M, 265 F.3d 1349, 1351 (Fed.Cir.2001); Sandt Tech., Ltd. v. Resco Metal and Plastics Corp., 264 F.3d 1344, 1351 (Fed.Cir.2001); Karsten Mfg. Corp. v. Cleveland Golf Co., 242 F.3d 1376, 1383 (Fed.Cir.2001); ATD Corp. v. Lydall, Inc., 159 F.3d 534, 545 (Fed.Cir.1998); C.R. Bard, Inc. v. M3 Sys., Inc., 157 F.3d 1340, 1349 (Fed.Cir.1998); In re Bond, 910 F.2d 831, 832 (Fed.Cir.1990); Richardson v. Suzuki Motor Co., Ltd., 868 F.2d 1226, 1236 (Fed.Cir.1989); Carella v. Starlight Archery and Pro Line Co., 804 F.2d 135 (Fed.Cir.1986); Panduit Corp. v. Dennison Mfg. Co., 774 F.2d 1082 (Fed.Cir.1985); Jamesbury Corp. v. Litton Indus. Prods., Inc., 756 F.2d 1556, 1560 (Fed.Cir.1985); Structural Rubber Prods. Co. v. Park Rubber Co., 749 F.2d 707, 716 (Fed.Cir.1984); Lindemann, 730 F.2d at 1458. [12] While the Novo Nordisk Court also notes that a genuine issue of material fact remained regarding whether the prior art disclosed the elements "as arranged" in the claimed device, the court did not suggest that the language "as arranged" was intended to have a meaning distinct from that traditionally assigned to it. 96 F.Supp.2d at 312.	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION AUG 02 2016 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 15-50351 Plaintiff - Appellee, D.C. No. 3:15-cr-00877-BEN v. MEMORANDUM* ALFREDO SANCHEZ, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding Submitted July 26, 2016** Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges. Alfredo Sanchez appeals from the district court’s judgment and challenges the 36-month sentence imposed following his guilty plea conviction for making a false statement in application and use of a United States passport, in violation of 18 U.S.C. § 1542. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. * 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). Sanchez contends that the district court procedurally erred by basing the sentence on clearly erroneous facts, namely that Sanchez had been previously removed on two occasions. Even assuming that Sanchez is correct that the district court clearly erred by finding that Sanchez had been removed on two prior occasions, the record reflects that the sentence was not based on that finding. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc) (“It would be procedural error for a district court to . . . choose a sentence based on clearly erroneous facts”). Sanchez next contends that the district court procedurally erred by failing to respond to his mitigating argument regarding his motivation for committing the instant offense. Because Sanchez failed to raise this specific objection before the district court, we review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find none. The record reflects that the district court considered Sanchez’s mitigating argument and adequately explained the sentence. See United States v. Ruiz-Apolonio, 657 F.3d 907, 920 (9th Cir. 2011) (“The district court is not required to provide a detailed explanation as to each of its reasons for rejecting every argument made by counsel.”). AFFIRMED. 2 15-50351	{ "pile_set_name": "FreeLaw" }
17 B.R. 670 (1982) In re HAWAIIAN PACIFIC INDUSTRIES, Debtor. Max Marion MAUDE, Mary Jane Maude, Hawaiian Trust Company, Limited, as Trustee, for Margery Dee Dudley, Plaintiffs, v. HAWAIIAN PACIFIC INDUSTRIES, Defendant. Bankruptcy No. 81-0144. United States Bankruptcy Court, D. Hawaii. February 12, 1982. Michael L. Freed, Honolulu, Hawaii, for creditors. Tamotsu Tanaka, Honolulu, Hawaii, for debtor. Richard L. Rost, Wailuku, Hawaii, for plaintiff. FINDINGS OF FACT AND CONCLUSIONS OF LAW JON J. CHINEN, Bankruptcy Judge. Hawaiian Pacific Industries, hereafter "Debtor", filed its petition under Chapter 11 on October 23, 1981. On November 5, 1981, Max Marion Maude, Mary Jane Maude, and Hawaiian Trust Company, Limited, as Trustee, for Margery Dee Dudley, hereafter "Plaintiffs", filed their Complaint for Relief from Automatic Stay. A final hearing on the Complaint was held on December 22, 1981. Present were Richard Rost, representing the Plaintiffs; Keven Peterson and Tamotsu Tanaka, representing the Debtor; and Michael L. 671 Freed, representing William Woods Becker, Stanley Cook and Quiet Suburbs, Inc. Based upon the evidence adduced, the records and memoranda filed herein and arguments of counsel, the Court makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. Due to failure on the part of Debtor to pay on a promissory note secured by a mortgage on a parcel of land situate on Maui, Plaintiffs filed a Complaint against Debtor and others on April 2, 1981, in the State Circuit Court. 2. On July 8, 1981, the State Circuit Court entered an Interlocutory Decree of Foreclosure and ordered the subject property sold. Earl Stoner, Jr., the commissioner appointed by the State Court made two attempts to sell the property at auction. The first auction had an upset price of $1,800,000.00 and there were no bidders. The second auction was to occur on October 27, 1981; however, Debtor filed its petition for relief on October 23, 1981, and such fact was made known to the Commissioner. There was no bid received by the Commissioner at the section auction which had an upset price of $1,000,000. 3. The real property involved is situate on Kihei Road, Maui, Hawaii, TMK 3-9-18, parcel 2, containing 4.753 acres. 4. Debtor has formulated plans to develop a resort-oriented residential condomium on the subject property. The project would contain 108 one-bedroom units and 36 two-bedroom units, with 184 parking stalls. The amenities would include tennis courts, cabana, a swimming pool and a wading pool. 5. The subject property is zoned for condomium use. A special Management Area (SMA) use permit has been granted and a building permit has been issued. The final building plans and specifications have been prepared and have been approved by the County of Maui. A Preliminary Public Report has been approved by the Hawaii Real Estate Commission. 6. Water for the project has been allocated by the County of Maui Department of Water Supply, subject to a source development fee of $1,000 per dwelling unit. Under rules currently in effect, competing projects which have not yet received building permits must await an allocation of water and are subject to a source development fee of $2,700 per dwelling unit. Allocations of water for such projects are subject to priority of projects having received prior approval and the allocations also are subject to availability of an unallocated portion of only 1.5 million gallons per day capacity available for condominium use in the Kihei area on an annual basis. 7. A commitment for a construction loan and for permanent financing of condominium unit purchases was offered by Honolulu Federal Savings and Loan Association. That commitment was not accepted by the Debtor because it is seeking more favorable financing. Purchase reservation contracts for nearly one-half of the project are currently in effect, with deposits in excess of $270,000.00 being held in escrow. 8. Max Maude, one of the Plaintiffs, testified that the subject property was sold to the predecessor of Debtor in 1979, for the sum of $1,200,000.00. He also testified that Debtor owed Plaintiffs approximately $850,000.00, which sum includes principal, interest, and costs, including attorney's fees and commissioner's fees. He believed the subject property to be worth approximately $750,000.00. 9. Two witnesses testified as to the value of the subject property. Mr. Stoner, the Commissioner appointed by the State Court, felt that the value was about $1 million in July 1981, but that as of December 1981, the value was about $800,000.00. Mr. Stoner felt that the value was down from July 1981 because of the poor economy, the high rate of interest, and the strong drop in commercial real estate market. But he also acknowledged that, in the long run, the value of real estate will generally increase. 10. The other witness was James Aganos. Mr. Aganos was retained by the Plaintiff two weeks prior to the hearing. In 672 arriving at his value, Mr. Aganos stated that he used the comparative approach, considered the Commissioner's reports to the State Court and discussed the matter with real estate brokers. 11. Mr. Aganos acknowledged that real estate generally appreciates in value. He stated, however, that because of the depressed economy and the high rate of interest, the value of real estate was now down. He also stated that he could not give a specific value but that he estimated the value of the subject property to be between $800,000.00 to $1,000,000.00. 12. These Findings of Fact, insofar as they are Conclusions of Law, are incorporated by reference in the Conclusions of Law as hereinafter stated. CONCLUSIONS OF LAW 1. Section 362(d) of the Bankruptcy Code provides for the lifting of the automatic stay as follows: (d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay (1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or (2) with respect to a stay of an act against property, if (A) the debtor does not have an equity in such property; and (B) such property is not necessary to an effective reorganization. 2. There is no question that the subject real property is necessary for an effective reorganization by Debtor. Thus, the relief requested can be granted only pursuant to Bankruptcy Code, Section 362(d)(1). 3. The Court finds that Mr. Stoner, in rendering his opinion of value, relied upon the foreclosure auctions rather than on any appraisal. He made no effort to compare the subject property with comparables. Neither did he use the residual method to estimate the market value of the subject property. Mr. Stoner admitted that he was not familiar with the specific details of the development of the property. He knew the Debtor had developed architectual designs for a condominium project and that Debtor had obtained a preliminary HPR. Until the final hearing, Mr. Stoner was not aware that Debtor had water allocation. He assumed that the Debtor had a building permit since there were previous sales. 4. Mr. Aganos, the appraiser who testified on behalf of the Plaintiffs, had no previous experience in appraising condomium projects. Likewise, he was not aware that the plans and specifications for the project have already been completed, that the building permit and the SMA permit have been issued and that the project has been allocated the necessary water. Mr. Aganos acknowledged that, had he taken into considerations such matters, his appraisal of the subject property would have been adjusted upward, but that he could not render an opinion as to the amount of the additional value. 5. As a Commissioner, it was the responsibility of Mr. Stoner to learn everything about the subject property so that he could properly advertise such property for sale. His failure to learn the specific details of the property including allocation of water and the actual receipt of various permits shows that he did not adequately perform his duties. Without complete knowledge of a parcel of land, no one can adequately estimate its value or properly market such property. 6. Mr. Aganos indicated that there were three basic factors which influenced his opinion on the value of the subject property: (1) the results of the foreclosure auctions as set forth in the Commissioner's reports; (2) opinions requested from real estate brokers, who gave no opinion as to a specific value figure; and (3) comparable sales based on records at the Tax Department and the Multiple Listing service. 673 7. Mr. Aganos specified ten characteristics which he claimed to have used as value adjustment factors when adjusting the value of comparable parcels to arrive at the fair market value of Debtor's parcel. These factors were: locations, size, shape, view, accessibility to beach, road frontage, plans and specifications, building permit, availability of water, and zoning. 8. One of the comparables used by Mr. Aganos was "Parcel B", a 4.7 acre parcel sold in 1979 at approximately $14.00 per square foot. Mr. Aganos testified that nine of the value adjustment factors were equal, resulting in no adjustment, and that the tenth factor, i.e., accessibility to beach, required a 5% reduction in the value of the subject parcel, as compared with Parcel B. 8. A 5% deduction from $14.00 square foot means a deduction of $.70, leaving $13.30 square foot for the subject parcel. The subject parcel contains 4.753 acres, which is equivalent to 207,040.68 square feet. Based on the foregoing analysis, it means that the present value of the subject parcel exceeds $2,750,000.00. (207,040.68 square feet × $13.30 per square foot = $2,753,641.00.) 9. Mr. Aganos testified that land values have been falling, but he knew of no comparable property having been sold for less than its preceding sales price, nor did he know of any willing seller of a comparable property who had reduced his asking price. 10. The Court finds that the lack of bidding at the second auction does not necessarily mean that the value of the subject property is less than $1,000,000.00. This second auction with an upset price of $1,000,000.00 was advertised only in the Maui News. It was not advertised in the Honolulu Advertiser or the Honolulu Star-Bulletin, both of which have a much larger circulation than the Maui News. Neither did the Commissioner testify that he made other efforts to publicize the sale of the subject property. 11. For the first auction, when the upset price was $1,800,000.00, Mr. Stoner advertised in the Honolulu Advertiser. But, for the second auction, Mr. Stoner advertised only in the Maui News. The Court finds that Mr. Stoner did not properly advertise the second auction with a lower upset price than the first auction. 12. Furthermore, prior to the second auction, Defendant had filed its petition in the Bankruptcy Court. This factor may have deterred prospective bidders from appearing at the second auction. For the foregoing reasons, the Court finds that the lack of bidding at the second auction does not necessarily mean that the subject property is not worth $1,000,000.00. 13. Both Mr. Stoner and Mr. Aganos were not fully aware of the extent of the development of the subject property by Debtor. Mr. Aganos acknowledged that, if he had known that the plans and specifications for the project had been completed, that the necessary water had been allocated and that the necessary permits had been issued, it would have increased his estimate of the value of the subject property. 14. Based on the foregoing analysis of Mr. Stoner's and Mr. Aganos' testimony, the Court finds the present value of the subject property to be $1,000,000.00. 15. Having found the present value of the subject property at $1,000,000.00 and the liability owing to the Plaintiffs at $850,000.00, the Court finds that there is presently equity of approximately $150,000.00 in favor of Debtor. Thus, there is adequate protection for the Plaintiffs at the present time. 16. Plaintiffs have also contended that the automatic stay should be lifted because the Defendant has not submitted a viable plan. 17. The petition was filed on October 23, 1981, and the hearing was held on December 22, 1981, approximately 60 days after the petition was filed. The Defendant has a period of 120 days wherein it has the exclusive right to submit a plan of reorganization. 18. Defendant already has its plans and specifications for its condominium project, along with the necessary permits. Financing 674 is the only thing left before construction can commence. 19. Based on the foregoing, the Court finds that it is only equitable to permit the Defendant to present a viable plan within a reasonable time. Thus, for the present, the Court finds that the lack of a definite plan of reorganization is insufficient cause to lift the automatic stay. 20. These Conclusions of Law, insofar as they are Findings of Fact, are incorporated by reference in the Findings of Fact as hereinabove stated. The Court, having found adequate protection for the present, hereby denies Plaintiffs' Complaint to lift stay, with leave granted to Plaintiffs to renew their request if they deem that their adequate protection is in any way being jeopardized. Let judgment be entered accordingly upon presentation by counsel.	{ "pile_set_name": "FreeLaw" }
226 F.3d 1181 (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.BENTLEY SCOTT POWELL, Defendant-Appellant. No. 99-1145 UNITED STATES COURT OF APPEALS TENTH CIRCUIT September 21, 2000 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 98-CR-218-D)[Copyrighted Material Omitted][Copyrighted Material Omitted] Sean Connelly, United States Department of Justice,Denver, Colorado (Thomas L. Strickland, United States Attorney, and Tim Neff, Assistant United States Attorney, with him on the brief) for Plaintiff-Appellee. Charles S. Szekely, Assistant Federal Public Defender, Denver, Colorado (Michael G. Katz, Federal Public Defender, with him on the brief) for Defendant-Appellant. Before TACHA, HOLLOWAY, and BRORBY, Circuit Judges. HOLLOWAY, Circuit Judge. 1 This is a timely direct appeal from the defendant/appellant's conviction for kidnapping for sexual gratification, contact, exploitation, and assault in violation of 18 U.S.C. § 1201. Because the defendant's prior criminal history made him a career offender under the federal sentencing guidelines, the district court sentenced him to life imprisonment. We have jurisdiction under 28 U.S.C. § 1291.1 I. THE FACTUAL BACKGROUND 2 Defendant/Appellant Bentley Scott Powell was a guest at the Colorado Springs, Colorado home of Lanita Adamic, her boyfriend Linn Greschke, and her thirteen year old daughter, referred to herein as Jane Doe. On May 6, 1998, Lanita Adamic, because her car had been stolen, asked Powell to accompany Jane on an errand to the Circle K, a local convenience store, where she was to purchase toilet paper and then deliver it to a neighbor. 3 However, after the purchase and delivery were completed, Powell did not drive Jane home; instead, he took her on a multi-day, multi-state sojourn during which time, according to some testimony elicited at trial, Powell subjected Jane to repeated sexual assaults. 4 Jane testified at trial that after the delivery was completed, Powell told her that he had seen John Greschke (son of Lanita Adamic's boyfriend) driving her mother's stolen car and that they should follow him if they wanted to recover the vehicle. Some testimony at trial suggests that this story was a fabrication; Deputy Sheriff Fontenot of Ville Platte, Louisiana testified that Lanita Adamic's car was recovered two miles south of Mamou, Louisiana on May 7, and that the car had been there since the previous evening. 6 R. at 681. 5 Rather than search for Lanita Adamic's car, however, Jane testified that the defendant drove her to the Cheyenne Mountain area near Colorado Springs, Colorado. See 4 R. at 336-37. Jane testified that while at Cheyenne Mountain, Powell provided her with marijuana which they smoked together. After smoking a "baggie" of marijuana, Powell offered Jane a beer, and when she declined, drank it himself. After approximately half an hour, Powell drove them down a road until they stopped. At that point, Powell asked her to take off her shirt. Jane testified that when she refused, he ordered her to do so, and upon her continued refusal, Powell produced a metal bar, hit it several times against the seat and again repeated his demand that she remove her shirt. Jane testified that, frightened, she complied, removing her shirt and bra, whereupon Powell proceeded to fondle her for the next fifteen minutes. Id. at 357-58. 6 According to Jane's testimony, Powell then drove to the side of a tunnel where he compelled her to touch and perform an oral sexual act on his private part, causing Jane to vomit. See id. at 358-62. Powell subsequently attempted to force Jane to submit to anal sex. According to Jane's testimony, over the next two days, during which time the two entered New Mexico and possibly Texas, Powell subjected her to additional sexual assaults. Jane Doe testified that she remembered seeing a "welcome to Texas" sign and then went to sleep. 4 R. at 487. She also testified that Powell took some car jacks to a pawnshop in Las Vegas, New Mexico. Id. at 392. The only cities Jane could identify as being in were Albuquerque, New Mexico and Las Vegas, New Mexico, according to her testimony. Id. at 495. Ultimately, on the night of May 9, 1998, Powell drove Jane back to the Circle K convenience store in Colorado Springs, where Powell was arrested. 7 Defendant Powell was indicted and charged with kidnapping in violation of 18 U.S.C. § 1201 which provides in pertinent part: 8 (a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when 9 (1) the person is willfully transported in interstate or foreign commerce . . . shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment. The indictment charged that: 10 Beginning on or about May 6, 1998, and continuing through and including May 8, 1998, in the State and District of Colorado, the defendant, Bentley Scott Powell, did unlawfully and willfully seize, confine, inveigle, decoy, kidnap, abduct, and carry away and hold, Jane Doe, a child under the age of eighteen years, and Bentley Scott Powell did willfully transport Jane Doe in interstate commerce from the State of Colorado to the State of New Mexico for reward or otherwise, namely: for sexual gratification, contact, exploitation and assault. 11 The defendant did not testify at trial. The defense did call as witnesses, among others, Jane Doe's step-mother, a Denver social services caseworker, and expert witnesses who testified to Jane Doe's lack of credibility and in support of the defense's theory that Jane Doe consented to interstate travel with the defendant. On appeal, the defendant does not challenge the sufficiency of the evidence against him. 12 The jury found Powell guilty and he appeals his conviction on that verdict. The defendant presents essentially four claims of error: (1) that the trial judge's denial of two motions to exclude prospective jurors for cause during voir dire deprived the defendant of his right to a fair trial by impartial jurors; (2) that the judge erred by failing to reiterate the prosecution's need to meet its burden of proof on all the elements of the offense, and by failing to provide the jury with a specific unanimity instruction, when he charged the jury, sua sponte, that although one element of the indictment read in the conjunctive, that element could be proved by the Government in the disjunctive; (3) that the trial judge's exclusion, under Federal Rules of Evidence 412 and 403, of evidence proffered by the defendant concerning the complaining witness's past sexual behavior violated defendant's rights under the Fifth and Sixth Amendments; and (4) that the cumulative effect of these errors deprived the defendant of his Fifth Amendment right to a fair trial. We address each argument in turn. II THE JURORS A. 13 During voir dire, defendant moved to exclude two prospective jurors Gail Ward and Charlene Onken for cause, arguing that they would not be able to serve with impartiality. The trial judge denied both motions. The defendant used his final peremptory challenge to excuse Ms. Ward. Consequently, he had no remaining peremptory challenges with which to excuse Ms. Onken, who sat on the jury. Defendant now argues on appeal that the trial judge's decision to deny these two for-cause challenges to prospective jurors violated his Sixth Amendment right to trial by an impartial jury and his Fifth Amendment right to due process. See Appellant's Opening Brief, at 23. Defendant also argues in his brief that the trial judge's failure to grant his for-cause challenge against Ward forced him to use his final remaining peremptory challenge, thereby depriving him of a due process right of later use of that peremptory challenge. 14 However, as defendant's counsel recognized at oral argument in connection with his challenge to juror Ward, the Supreme Court's recent opinion in United States v. Martinez-Salazar, 120 S. Ct. 774 (2000), precludes his reliance on the Ninth Circuit's Martinez-Salazar holding. Martinez-Salazar, 120 S. Ct. at 777, reversed the Ninth Circuit and held: 15 We reject the Government's contention that under federal law, a defendant is obliged to use a peremptory challenge to cure the judge's error [in not excusing a biased juror]. We hold, however, that if the defendant elects to cure such an error by exercising a peremptory challenge and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any rule-based or constitutional right. 16 Under this holding, there was no error as to Ward. She was excused by a peremptory challenge and did not sit on the jury. Here defendant's rights as to peremptory challenges and to a fair trial were not infringed in light of the Martinez-Salazar holding. B. 17 Defendant's second challenge concerns juror Charlene Onken. Onken disclosed during voir dire that "[m]y daughter was raped at college at the age of 18." 3 R. at 238-39. The trial judge then inquired: "The fact that your daughter was raped at age 18 is that going to make it difficult for you to be fair to either side in this case?" Onken replied: "No. I can be fair." Id. at 239. 18 During supplemental voir dire by counsel for the defendant, Onken was called to the bench and was asked by the trial judge to explain further the circumstances of her daughter's rape. Onken related that her daughter had been "coming home from a party, and she was with an acquaintance, and she asked to go in and call a friend, and when she got in the house, [her acquaintance] forced himself on her, and she couldn't get away from him. And it was, you know, just very traumatic for her . . . ." Onken then explained that her daughter never filed charges or told anyone other than her. Id. at 240. 19 Counsel for defendant then asked if "[b]ecause of your experience with your daughter . . . is it going to cause you concern in this case in dealing with the evidence?" Onken responded that "I don't know this wasn't rape in the case here, I don't think." When counsel for defendant balked at further discussing the facts of the case, i.e. whether the case involved allegations of rape, the trial judge interjected "[y]ou've heard what the indictment says, so I think you just need to go with that and what the Court said." Id. at 241. In response, Onken stated: "You know, I don't know the facts. I want to be honest -- I can't say yes or no because I don't know for sure . . . I mean, I felt for her, how bad she felt. . . . I felt her pain. And so, until I know the facts, if this girl was hurt. I don't know. I have to be honest with you." Id. 20 Counsel for defendant then proceeded with questioning as follows: 21 Q. If the facts in this case show that there was a rape . . . would that so affect you that it would cause you to be so prejudiced against the defendant you couldn't judge other issues in the case? 22 A. Yes. If it showed rape. 23 Q. Okay. And you couldn't judge those other issues fairly?A. The other issues, besides rape? 24 Q. Right. 25 A. I could that, those other issues, but not rape, I couldn't. 26 Q. He's charged here with kidnapping. 27 A. Okay. 28 Q. And what I'm saying is if the evidence shows that he did a rape? 29 A. Did a rape. 30 Q. Yeah. . . . Would that so prejudice you based on what's happened that you couldn't fairly judge the other evidence in the case, the other issues that you're going to . . . 31 A. I think I could be fair. But I said the rape would influence me some. 32 Q. It would influence you? 33 A. Oh, yeah, the rape would. 34 Q. It would influence how you view the other evidence in the case? 35 A. They're all related, I think. 36 Id. at 243-45. 37 At this juncture, the trial judge interrupted counsel's questioning to tell Onken that the "defendant here is charged with kidnapping." The trial judge then proceeded to question Onken as follows: 38 Q. And if you're selected as a juror, before the jury deliberates, I will explain to you the elements of kidnapping. 39 A. Okay. 40 Q. As a matter of law, which I'm not going to do right now. Would you be able to follow the Court's instructions of law as to what kidnapping is? 41 A. Yes. Yes. 42 Q. And would you allow your personal sympathies regarding your daughter's situation to override what the Court instructs you as to be the law of the case? 43 A. Yes. I'm sure I could. 44 Q. You let your personal situation override my law on the case? 45 A. No. Your instructions I believe I could listen to. 46 Q. And follow them? 47 A. I believe so, yes. 48 Q. And put your personal situations aside? 49 A. Yes. I would really try to. 50 Q. Do you think you could do that is my question. 51 A. Yes. I know you don't want these maybe answers. 52 Q. Yes. 53 A. I would say yes. 54 Q. No, no, no. You don't have to say anything. I'm asking for your honest answer. The trial is fair if the jurors . . . can put aside all the personal issues they bring to court and base the case as solely as possible on what they hear in court and my instructions of law, and so we just want to know if you're someone who can do that - that's my question. 55 A. Yes, I can be somebody like that. 56 Id. at 245-46. 57 Counsel for defendant then moved to strike Onken from the jury for cause, arguing that her daughter's rape would "so infect her ability to judge the other evidence regardless of what she says . . ." Id. at 247. At this point, the trial judge again questioned Onken: 58 Q. How long ago was your daughter raped? 59 A. Okay. That was ten years. 60 Q. Okay, ten years? 61 A. Ten years ago. 62 Q. How did you find out about it? 63 A. She told me probably about three weeks after it happened. 64 Q. So you found out about it about ten years ago? 65 A. Yes. Yes. Yes. 66 Q. Now, I want to ask you this one more time so I'm clear. The charge in this case is kidnap. 67 A. Kidnap, yeah, right. 68 Q. And as the indictment reads, the defendant did willfully transport Jane Doe in interstate commerce from the state of Colorado to the state of New Mexico for reward or otherwise; namely for sexual gratification, contacts, exploitation, and assault. 69 Now, the evidence that's going to be presented in this case will bear on this indictment. But the actual law of the case will not be presented to you until the end of the case. So I'm not going to try to explain to you what the elements of kidnapping are. My question is taking into account everything that's happened to you and your daughter, can you be a fair juror to the defendant and make your decision as to his guilt or innocence based solely on what you hear in court and my instruction of law? 70 A. Yes. 71 Id. at 248-49. 72 Defendant now argues that his right to a fair trial was violated because, he maintains, Ms. Onken was both actually and impliedly biased. The trial court's findings regarding actual bias of a prospective juror are reviewed for clear error. United States v. Cerrato-Reyes, 176 F.3d 1253, 1260 (10th Cir. 1999); Gonzales. v. Thomas, 99 F.3d 978, 986 (10th Cir. 1996) ("Whether a juror was actually biased is a factual determination we review only for clear error."). Findings as to implied bias are reviewed de novo. Cerrato-Reyes,176 F.3d at 1260 ("We review the court's . . . findings as to implied bias de novo."); Gonzales, 99 F.3d at 986 ("Whether a juror was impliedly biased is a legal question we review de novo."). We have held that actual bias may be established in either of two ways: "Actual bias can be shown by the express admission of the juror . . . of a state of mind prejudicial to a party's interest." Cerrato-Reyes, 176 F.3d at 1260 (internal quotation and citation omitted). Alternatively, actual bias may be "found by the court based upon the juror's voir dire answers." Id.; see also United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997). 73 The Supreme Court has instructed that a finding of actual bias "is based upon determinations of demeanor and credibility that are peculiarly within a trial judge's province." Wainwright v. Witt, 469 U.S. 412, 428 (1985). In other words, the "trial judge's function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions." Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (plurality opinion by White, J.). Consequently, "an appellate court" cannot "easily second-guess the conclusions of the decision-maker who heard and observed the witnesses." Id. 74 Findings of implied bias are legal determinations dependent "on an objective evaluation of the challenged juror's experiences and their relation to the case being tried." Gonzales, 99 F.3d at 987 (internal citation omitted); see also Burton v. Johnson, 948 F.2d 1150, 1158 (10th Cir. 1991) ("We have no psychic calibers with which to measure the purity of the prospective juror; rather, our mundane experience must guide us to the impartial jury promised by the Sixth Amendment."). Consequently, "[u]nlike the inquiry for actual bias, in which we examine the juror's answers on voir dire for evidence that she was in fact partial, 'the issue for implied bias is whether an average person in the position of the juror in controversy would be prejudiced.'" Cerrato-Reyes, 176 F.3d at 1260 (quoting United States v. Torres, 128 F.3d 38, 45 (2d Cir. 1997)). 75 Thus, a finding of implied bias "is appropriate where the juror, although she believes that she can be impartial, is so closely connected to the circumstances at issue in the trial that bias is presumed." Cerrato-Reyes, 176 F.3d at 1260. We have set a high threshold for a finding of implied bias, however. As we held in Cerrato-Reyes, the "implied bias doctrine is not to be lightly invoked, but must be reserved for those extreme and exceptional circumstances that leave serious question whether the trial court subjected the defendant to manifestly unjust procedures resulting in a miscarriage of justice." Id. (quoting Gonzales, 99 F.3d at 987) (emphasis added). In doing so, we look "for similarities that would inherently create in a juror a 'substantial emotional involvement, adversely affecting impartiality.'" Gonzales, 99 F.3d at 989 (quoting United States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977)). 76 Applying the principles stated above as to actual bias, we note that Ms. Onken waivered when questioned about her ability to put aside her experience with her daughter's rape. However, she ultimately told the judge that she could follow the court's instructions and would "really try to" put her personal situation aside. 3 R. at 245-46. While the issue of actual bias is troubling, we feel the judge's rejection of the claim of actual bias is sufficiently supported and not reversible. He closely observed Ms. Onken while he and counsel questioned her, and therefore we cannot easily second-guess his ruling. Rosales-Lopez, 451 U.S. at 188. 77 We turn now to the question whether there was a showing of implied bias which required the rejection of Ms. Onken. "A finding of implied bias" is appropriate when the juror, although she believes that she can be impartial, is so closely committed to the circumstances at issue in the trial that bias is presumed." Cerrato-Reyes, 176 F.3d at 1261. As to implied bias we also conclude that the showing in the record is insufficient to require reversal of the judge's ruling allowing Ms. Onken to sit on the jury. 78 While we review de novo the trial judge's ruling on implied bias, here we are not persuaded that the ruling should be reversed. Although implied bias may be found where there are compelling similarities between the experiences of the challenged juror and facts at issue in the trial at hand, we do not believe that the similarities between Onken's daughter's rape, and the facts at issue in Powell's case, are sufficiently congruous to cause a finding of implied bias on the part of Ms. Onken. In Gonzales, 99 F.3d at 990-91, for instance, a prosecution for rape, the defendant argued that a juror, herself a rape victim, was impliedly biased. We disagreed. There was a passage of many years (25 years) from the juror's abuse to the time of the trial, and the involvement of the juror herself as the rape victim was more disturbing than the case here where instead the juror's daughter was the victim ten years before.2 79 In sum, we are persuaded that there was no reversible error by the trial judge in rejecting the claim of bias as to Ms. Onken. Neither as to implied bias nor as to actual bias was a showing made in this record that requires a reversal. We therefore reject the claim of error in the selection of the jury. III. THE INSTRUCTIONS A. 80 Defendant argues that the trial judge erred in his response to a series of questions posed by the jury during deliberations. On the second day of deliberations, the jury communicated by note to the trial judge the following question:3 Re: Instruction #20 81 Seize, confine, inveigle, decoy, kidnap, abduct, and carry away 82 Do we have to have agreement on all the definitions of kidnap. [sic] Instruction 24 Said 83 Part 1 Says seized, confined, inveigled, decoyed, kidnapped, abducted or carried away. 84 Appellant's Opening Brief, at Appendix E (emphasis in original). 85 Unsure as to the exact meaning of the jury's question, the trial judge declined to answer the query directly, telling them that "to the extent that you have underlined the words 'and' in instruction no. 20 and 'or' in instruction no. 24, the Court and the parties aren't clear as to exactly what you're asking." As a result, the trial judge referred the jury "back to the jury instructions as a whole and each of the definitions set forth in the jury instructions, hoping that will answer part of your questions." 9 R. at 1397. He explained that it "would be helpful, if you choose to do it, is . . . write a more specific question that asks something. Because the way this is currently phrased, it's very difficult for us to understand exactly what you're asking. . . ." Id. 86 The court then recessed. When the court reconvened some 38 minutes later that morning, the trial judge received a supplemental question posed by the jury. Id. at 1400. This second question stated: 87 According to Instruction 20 and 24 there is a discrepency [sic] between 'and' meaning 'all' and 'or' meaning only 'one' In order to determine a verdict Did the defendant have to seize and Did the defendant have to confine and Did the defendant have to inveigle and Did the defendant have to decoy and Did the defendant have to kidnap and 88 abduct and carry away? 89 Must all of these conditions be met, as a whole, to determine a verdict? 90 Or Can any one of these conditions stand alone? 91 Instruction #20 says 'and' in listing these conditions as if each action must be committed. 92 Instruction #24 says 'or' in listing these conditions as if any one on its own is enough to determine a verdict 93 [Foreperson] 94 Appellant's Opening Brief, Appendix F (emphasis in original). 95 Having been tendered this more specific question, the trial judge identified the "real issue here" as 96 a conflict between the words of the indictment and what the statute says. The statute, 18 U.S.C. section 1201, which is accurately recited in one of the jury instructions uses the word "or." . . . Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person. 97 The trial judge then observed that "in the indictment, it says that Bentley did unlawfully seize, confine, inveigle, decoy, kidnap, abduct, and carry away." In other words, "the word 'and' is used in the indictment rather than 'or.'" Consequently, the trial judge said "the basic question here" is that "there a discrepancy between the statute that's invoked in the indictment and the actual language of the indictment." 9 R. at 1401. 98 Unsure "what the right law is on this issue," the trial judge told counsel that "I have no choice but to refer [the jury] back to the instructions as a whole with two caveats." The trial judge said he would "reiterate that instruction no. 20 sets forth the indictment, which is merely a charge in this case," explain that instruction No. 23 "sets forth the statute that is the statutory language which articulates the crime of kidnapping," and remind the jury that instruction No. 24 "defines what the government's burden is, and more importantly, the three essential elements of this charge." 9 R. at 1412-13. 99 Consequently, in response to this second set of questions from the jury, the trial judge called the jury in the courtroom. He told them: "I am not going to answer this question directly, but there is some things that I will say because you've submitted this question." The judge said that "the Court believes that the instructions as a whole and viewed in their entirety provides sufficient legal guidance to the jurors so that you have within your possession all of the law that relates to each of the elements of this offense." Thus, the trial judge explained that "by referencing to these instructions as a whole, you can get some guidance." Id. at 1420. 100 The trial judge also explained to the jury that "I do want to point out that instruction no. 20 indicates what the indictment charges," and that "Instruction no. 23 specifies what 18 U.S.C. section [1201] says, which is the statute that defines the offense of kidnapping and is the law which was allegedly violated by the defendant." Id. The judge also told the jury that "instruction 24 sets forth the three essential elements which the government must prove beyond a reasonable doubt. And I'm not going to read them, but they say what they say," id., and that "instruction 33 sets forth the defendant's defense of consent. In there it specifies what that means, and it also says what it means." Id. at 1421. Finally, the trial judge explained that: 101 even though the Court has specifically referred to instructions 20, 23, 24, and 33, I want to reiterate that by doing that, I'm not giving undue emphasis to those instructions; I'm not asking you or encouraging you to single those out; but I thought that in fairness to some of the things set forth in your question, that it would be appropriate for the Court to say what it said. But that's all I'm going to say. Because it's up to you to reach a verdict; and so with those comments, you're instructed by me to return to the jury room and continue your deliberations. 102 Id. at 1421. 103 When the court reconvened the next morning, the trial judge informed counsel for the parties that upon further reflection he had decided to supplement his previous instructions to the jury. 10 R. at 1425 ("We don't have any further requests from the jury, but upon deep reflection, I think I believe the Court needs to give a clarifying instruction on the and/or."). The judge said he would read his proposed instruction and let each side make a record: 104 The indictment alleges that 18 U.S.C. section 1201 was violated by various acts which are in the indictment joined by the conjunctive "and." It is sufficient for a finding that element 1 of the offense of kidnapping referenced in instruction 24 has been proven if the evidence established beyond a reasonable doubt a violation of any of the acts described in that element. Thus for purposes of the government's proof of element 1 only, "and" means the same as "or." 105 10 R. at 1425. 106 Defense counsel then objected to giving any further instructions because the jury had not sent out a note for further clarification. Id. at 1428. He added that if the judge insisted on giving the instruction, defense counsel would insist on an instruction to the effect that inveigling and decoying was but the first element and that there still had to be a holding of the person "against their will," that had to be proven "beyond a reasonable doubt." Id. 107 Thereupon the trial judge informed the jury that: 108 Upon reflection, I determined that I had not given a sufficient response to your second question yesterday. I'm not going to repeat it, but it's the one that dealt with issues regarding instructions 20 and 24, the details of which are set forth in your note, which I won't repeat because all of you know it. I'm going to read you a further instruction that's in response to . . . the questions that the jury posed based on the Court's reading of your note. . . . The indictment alleges that 18 U.S.C. section 1201 was violated by various acts which are in the indictment joined by the conjunctive "and." It is sufficient for a finding that element 1 of the offense of kidnapping referenced in instruction 24 has been proven if the evidence established beyond a reasonable doubt the violation of any of the acts described in that element. Thus for purposes of the government's proof of element 1 only, quote, and, unquote, means the same as, quote, or, unquote. When I say or I mean O-R. 109 And so that's the further instruction. . . . So I want to reiterate, however, that this instruction is not to be singled out by you and it must be read in conjunction with all of the other instructions that I've previously given to you and which are in the set that you have in the jury room. 110 Id. at 1433. B. 111 Defendant now challenges the trial judge's supplemental instruction on the grounds that the context in which it was given made it "erroneous, unresponsive, confusing, misleading, and prejudicial . . ." Appellant's Opening Brief, at 20. Rather than arguing that the trial judge's sua sponte charge to the jury was legally inaccurate,4 Defendant suggests that the jury's questions "raised an inference that the jury was confused as to the essential elements of kidnapping, the requirement of unanimity, or whether a finding on the first element enabled the jury to reach a verdict without further consideration of the additional elements." Id. Defendant argues that the trial judge committed reversible error by: (1) failing to repeat in his final supplemental charge to the jury an instruction that "lack of consent is an essential element of kidnapping"; and (2) failing to reiterate to the jury a specific unanimity instruction in light of the confusion expressed in the jury's two questions. Id. at 20-21. We address each of these arguments in turn. 1. 112 First, defendant argues that the trial judge was required to re-emphasize to the jury the need for the prosecution to sustain its burden of proof for each of the three elements of kidnapping, including the lack of victim consent. See Appellant's Opening Brief at 21("Although earlier jury instructions referenced Mr. Powell's sole defense of consent, the court failed to repeat in its final supplemental charge this crucial instruction or reiterate that lack of consent is an essential element of kidnapping."). 113 We are unable to agree with Defendant that the trial judge's supplemental instruction was in error in this respect. When presented with a challenge to jury instructions, "we review the record as a whole to determine whether the instructions state the law which governs and provides the jury with an ample understanding of the issues and standards applicable." United States v. Zimmerman, 943 F.2d 1204, 1213 (10th Cir. 1991) (internal quotations omitted); see also United States v. Cardall, 885 F.2d 656, 673 (10th Cir. 1989); Big Horn Coal Co. v. Commonwealth Edison Co., 852 F.2d 1259, 1271 (10th Cir. 1988). In conducting this inquiry, we are guided by the principle that the issue which we must resolve is "not whether the charge was faultless but whether the jury had an understanding of the issues and its duty to determine these issues." Zimmerman, 943 F.2d at 1213. 114 The Supreme Court has instructed that "[w]hen a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy." Bollenbach v. United States, 326 U.S. 607, 612-13 (1946); see also United States v. Duran, 133 F.3d 1324, 1334 (10th Cir. 1998) ("When a jury indicates through its queries that it is confused as to important legal standards in a case, particularly where there is an apparent basis for the confusion, it is plain error for the district court not to clarify that confusion."). However, we believe that the trial judge's supplemental instruction to the jury here adequately satisfied the Court's admonition that the court must address a jury's confusion with "concrete accuracy." The first jury question was relatively vague and ambiguous; consequently, rather than risk causing further confusion by answering a possibly misinterpreted question, the trial judge prudently referred the jury back to his original instructions and informed them that if their confusion persisted they should pose another, clearer question. 115 Shortly thereafter, the jury did in fact present a second, more specific question. This second jury question placed in sharper focus the substance of the jury's confusion the seeming inconsistency between the use of the conjunctive and disjunctive. Having thus ascertained the crux of the jury's confusion, the trial judge issued an appropriate supplemental instruction. As discussed above, the trial judge's sua sponte charge was an accurate statement of the law indictments charging in the conjunctive may be proven disjunctively. See Daily, 921 F.2d at 1001. Here, the trial judge was explicit in his answer to the jury's query, unambiguously instructing the jury that: "for purposes of the government's proof of element 1 only, 'and' means the same as, 'or.'" 10 R. at 1433 (emphasis added). We thus conclude that the trial judge's ultimate response to the jury's understandable confusion resulting from the discrepancy between the indictment and the statute comports with the mandate of Bollenbach. Moreover, that the trial judge did not yet again instruct the jury that lack of consent is an essential element of kidnapping does not disturb us.5 Instruction No. 33 made very clear the jury's responsibility regarding the issue of consent. The trial judge here instructed the jury that the 116 defendant has alleged the defense of consent. This is so for the reason that the involuntariness of the seizure and detention is at the very essence of the crime of kidnaping. In other words, the victims's lack of consent is a fundamental element of the crime required to be proved by the government beyond reasonable doubt. Accordingly, should you find that the victim, [Jane Doe], was not being held against her will, but in fact accompanied the defendant voluntarily, you must find the defendant not guilty. 117 8 R. at 1313 (emphasis added). 118 In sum, we are satisfied that the supplemental instruction, considered with the entire charge, adequately covered the government's burden of proof for the three elements of the kidnapping allegation, including the lack of the victim's consent. In so concluding "we adhere to the crucial assumption underlying our constitutional system of trial that jurors carefully follow instructions." Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985). 2. 119 Second, defendant argues that it was reversible error for the trial judge not to give a unanimity instruction in conjunction with his sua sponte instruction. Appellant's Opening Brief, at 21. ("[B]ecause the jury had expressed confusion through its two questions, a specific unanimity instruction was required."). We set out in the margin the unanimity instruction given here.6 120 Since the Defendant did not request a specific unanimity instruction at trial, we review the trial court's decision not to issue a specific unanimity instruction for plain error. United States v. Mills, 29 F.3d 545, 548 (10th Cir. 1994) ("Where, as in this case, a defendant does not request a specific unanimity instruction, we review the lack of such an instruction under the plain error standard."); United States v. Bedonie, 913 F.2d 782, 781 (10th Cir. 1990) ("Appellants . . . contend they were deprived of their right to a unanimous verdict. . . . Appellants' contention was not raised before the district court; therefore, we must review appellants' argument under the plain error standard.") (footnote omitted); United States v. Phillips, 869 F.2d 1361, 1366 (10th Cir. 1988) ("On appeal, Phillips raises for the first time the contention that the jury instruction given by the trial court . . . deprived him of a unanimous jury verdict. . . . We thus also review Phillips objection to the lack of a specific unanimity instruction under the 'plain error' standard.") (footnote omitted). 121 Our leading case on the issue is United States v. Phillips, 869 F.2d 1361 (10th Cir. 1988). Phillips involved a defendant charged in a two count indictment with knowingly transporting a forged and falsely made security (two bad checks) in interstate commerce with intent to defraud in violation of 18 U.S.C. § 2314. Id. at 1363. To be convicted, the jury had to make four distinct findings: (1) that the checks were "falsely made and forged"; (2) that they were transported in interstate commerce; (3) that the defendant caused the checks to be thus transported; and (4) that the defendant did so intentionally. Id. at 1367. At the close of the trial, the judge instructed the jury on the definition of "falsely made and forged," charging that:A check is falsely made or forged for the purpose . . . of this law and this case if: one, the maker of the check was not authorized to sign on the account of which check was drawn; or two the check was drawn on a closed account; or three, the check was made payable to a fictitious payee and proof of any one or more of these is sufficient. 122 Id. at 1364 (emphasis added). 123 On appeal, the defendant argued that since individual jurors may not have agreed on the means by which the defendant "falsely made and forged," this jury instruction deprived him of an unanimous verdict. Id. at 1366. Rejecting this challenge, we held that "it is assumed that a general instruction on the requirement of unanimity suffices to instruct the jury that they must be unanimous on whatever specifications they find to be the predicate of the guilty verdict." Id.; see also United States v. McClure, 734 F.2d 484, 494 (10th Cir. 1984). Consequently, "we assume that the jury unanimously reached a decision as to all factual predicates on which it based [defendant's] conviction." Phillips, 869 F.2d at 1367. Thus, although "the jury instruction defining 'falsely made and forged' might have allowed some members of the jury to determine that the checks were forged and falsely made in different ways," we noted that "that does not go to the crime charged but only to one of several elements." Id. at 1367. In other words, 124 [t]he different methods in which the check might have been forged and falsely made did not constitute separate crimes for which Phillips was charged, or for which he could have been convicted under the indictment, they constituted different ways in which a single element of the crime for which he was charged might have been fulfilled. 125 Id. at 1368. 126 Phillips supports the rulings below. Here, as in Phillips, one of the elements of the offense could be proven through several alternative means. The trial judge properly instructed the jury that the first element of the offense could be proven by the prosecution demonstrating beyond a reasonable doubt that the defendant seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away Jane Doe. As in Phillips , where we upheld the trial judge's decision not to charge the jury with a specific unanimity instruction that they must all agree on the means by which the defendant had "falsely made or forged" a check, so too must we here hold that the trial judge did not commit reversible error by failing to instruct the jury that they must all concur on the means by which the defendant satisfied the first element of the offense.7 127 Since trial of the instant case in November and December 1998 and during briefing of this appeal, the Supreme Court decided Richardson v. United States, 526 U.S. 813 (June 1, 1999). Richardson involved an appeal of a conviction for engaging in a "continuing criminal enterprise" in violation of 21 U.S.C. § 848. The statute defined a "continuing criminal enterprise" as involving a "violat[ion]" of the drug statutes where "such violation is a part of a continuing series of violations." 21 U.S.C. § 848(c) (emphasis added). At trial, the judge instructed the jury regarding the "series of violations" requirement that they "must unanimously agree that the defendant committed at least three federal narcotics offenses." However, the judge added, "[y]ou do not . . . have to agree as to the particular three or more federal narcotics offenses committed by the defendant." Ricardson, 526 U.S. at 816. The jury convicted the defendant, but on appeal the Supreme Court reversed the conviction, holding that "unanimity in respect to each individual violation is necessary." Id. 128 Although in Richardson the Court held that a specific unanimity instruction was necessary, we conclude that that case does not require a reversal here. Richardson based its holding on drawing a distinction between the elements of an offense and means by which the Government may satisfy an element. Elements, the Court held, must be found unanimously by the jury. Id. at 817 ("[A] Jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proven each element.") (citing Johnson v. Louisiana, 406 U.S. 356, 369-71 (1972) (Powell, J., concurring). On the other hand, the jury need not agree unanimously on the means by which an element is proven. Id. ("[A] disagreement about means . . . would not matter as long as all 12 jurors unanimously concluded that the Government had proved the necessary related element . . ."). Consequently, the Court held, "a federal jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of the crime." Id.; see also id. at 828 (Kennedy, J., dissenting) ("We begin on common ground, for . . . it is settled that jurors need not agree on all of the means the accused used to commit an offense."); Schad v. Arizona, 501 U.S. 624, 649 (Scalia, J., concurring) ("[I]t has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission."). 129 Following Richardson's instruction that when determining whether a specific unanimity instruction is required we must differentiate between "means" and "elements," we conclude that here the various acts which the jury was to consider seize, confine, inveigle, decoy, kidnap, abduct, and carry away and hold fall closer to the "means" end of the means/element spectrum. Accordingly, we hold that the trial judge did not err in not charging the jury with a specific unanimity instruction. 130 In sum, we are persuaded that the instructions and the supplemental charge here were not in error. IV. EVIDENCE OF PRIOR SEXUAL CONDUCT A. 131 Defendant next contends that the trial judge violated his Fifth Amendment right to due process and his Sixth Amendment right to compulsory process by excluding evidence of Jane Doe's past sexual behavior under Federal Rules of Evidence 412 and 403. 132 Rule 412 establishes the federal "rape shield" provision, whereby in proceedings involving alleged sexual misconduct, the admission of evidence concerning the victim's past sexual behavior or sexual predisposition is generally prohibited. Federal Rule of Evidence 412 provides in part that: 133 (a) Evidence generally inadmissible. -- The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): 134 (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. 135 (2) Evidence offered to prove any alleged victim's sexual predisposition. 136 Rule 412 (b) establishes a series of exceptions to the general ban of Rule 412 (a) against admissibility of such evidence, by providing as follows: 137 (b) Exceptions. 138 (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: 139 (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence; 140 (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and 141 (C) evidence the exclusion of which would violate the constitutional rights of the defendant. 142 Before trial, the defendant notified the trial court of his intention to introduce evidence of Jane Doe's past sexual behavior pursuant to Rule 412 (b)(1)(C), on the grounds that its exclusion would violate his constitutional rights. See 1 R. Docs. 54-55, 78-79. Defendant proffered two witnesses who would testify in support of the defense of consent and to rebut inferences that Jane Doe was sexually naive, innocent, and unsophisticated prior to her alleged kidnaping. First, the defendant proffered that David Day, a nineteen year old Air Force serviceman, would testify that once while Jane Doe was visiting his step-mother's home, Jane had flirted with him and had acted in an inappropriate manner. Specifically, Day would testify that Jane had rubbed up against him, stroked his thigh in a sexual manner, and had made sexual advances. See 1 R. Doc. 55; 2 R. at 22-23.("[S]he was getting very close to him, she was rubbing up against him, and she was stroking his thigh in a sexual manner."). 143 Second, defendant proffered the testimony of Cheri Park, a relative of Jane Doe, who would testify that during a Thanksgiving dinner in 1996, Jane, then eleven years old, "went to several of the adult males who were present, sat in their laps in a sexually suggestive manner and grabbed their crotch area, attempting to fondle the adult male's genitals." 1 R. Doc. 78 at 2. 144 Initially the trial judge expressed his inclination to admit the proffered testimony by Mr. Day and Ms. Cheri, stating that "this incident involving Mr. Day would be something that the defendant should offer as evidence because I think the Government would be opening that door based on the way it's presenting the case." 2 R. at 38. However, the trial judge decided to defer making a final ruling until he had heard Jane Doe's testimony, and he warned the prosecution that "if it turns out that the Government has portrayed [Jane Doe] in a way that is totally inconsistent with this incident, then I'm inclined . . . to let [the defendant] provide evidence . . ." Id. 145 Again, on the first day of trial, the trial judge reiterated that he would not decide whether to admit the proffered evidence until he had heard Jane Doe's testimony, stating that "I'm not going to make a decision on that before I hear the government's evidence." 3 R. at 11. Moreover, the trial judge again warned the prosecution that 146 if you paint this victim as someone who is very chaste, who's virginal and who . . . wouldn't engage in any of the conduct that [defendant] wants to introduce, then I think that has some bearing on whether or not I'm going to let it in. But if you don't portray her that way . . . then I'm less inclined to let it in. 147 Id. at 12. 148 Upon hearing Jane Doe's testimony, the trial judge decided to exclude the proffered evidence. See 4 R. at 611-14. The judge found that "I just don't believe that given the substance of [Jane Doe's] testimony . . . that there's been any testimony presented that would provide a springboard or basis upon which this Court could properly allow the jury to hear the two instances of 412 evidence the defendant wishes to offer . . ." Id. at 611. The trial judge explained that "in listening carefully to [Jane Doe's] testimony and taking into account the substance of the 412 proffers, I don't believe that there is any constitutional violation that will occur as to the defendant's ability to have a fair trial if this Court disallows the 412 proffers." Id. at 612. The judge stated further: 149 We aren't dealing with a situation where the Court believes that there is a need to confront anyone, including the complaining witness, regarding these two incidents. The rape shield statute by its terms was designed to ensure that victims of rape wouldn't have their past sexual life thrown at them. And the only exception to that have [sic] been where these cases have indicated that there has been a past pattern of conduct by the complaining witness which if not disclosed in trial would preclude the defendant from his or her right to confrontation and Sixth Amendment or due process. I don't see any of those arguments being valid in this case. 150 Id. at 612-13. 151 The trial judge did not confine his exclusion of the defendant's two proffered witnesses to Rule 412, however. In addition, the trial judge rested his determination upon Rule 403,8 stating that "looking at 403, the Court believes that even to the extent this evidence may be probative, that its probative effect is outweighed by its prejudice to the government's case, and so under Rule 403, the Court does not find that there is a basis for the allowance of this testimony." Id. at 613. 152 We review the trial judge's exclusion of defendant's proffered evidence for abuse of discretion. See United States v. Ramone, 218 F.3d 1229, 1234 (10th Cir. 2000) ("A district court's determination regarding the admissibility of evidence is reviewed for an abuse of discretion."). However we review challenges to rulings excluding evidence proffered by the defense de novo where the objections are based on Sixth Amendment confrontation rights. See United States v. Byrne, 171 F.3d 1231, 1234 (10th Cir. 1999) ("We review de novo whether a defendant's Sixth Amendment confrontation rights were violated by cross- examination restrictions, and whether any such violation was harmless.") (quoting United States v. Gault, 141 F.3d 1399, 1403 (10th Cir.), cert. denied, 119 S. Ct. 253 (1998)). 153 Evidence adduced by cross-examination concerning prior sexual intercourse may be required to be admitted by Confrontation Clause rights where relevant and probative on a central issue of sexual offense charges. United States v. Begay, 937 F.2d 515, 521 (10th Cir. 1991). But where a proffered statement by a victim about unrelated consensual sexual intercourse was of little or no probative value as to whether a defendant was falsely accused of rape in the case on trial, the exclusion of evidence about test results did not deprive a defendant of a constitutional right. United States v. White Buffalo, 84 F.3d 1052, 1054 (8th Cir. 1996). 154 We believe that the trial judge acted correctly in excluding the defendant's proffered testimony under Rule 412. It is unquestionably true that "[a] defendant's right to due process and compulsory process includes the right to present witnesses in his or her own defense." Richmond v. Embry, 122 F.3d 866, 871 (10th Cir. 1997); see also Washington v. Texas, 388 U.S. 14, 18 (1967) ("The right to offer the testimony of witnesses . . . is in plain terms the right to present a defense . . ."); United States v. Bautista, 145 F.3d 1140, 1151 (10th Cir. 1998) ("The right to present a defense is a fundamental element of due process of law.") (internal quotation omitted). Nonetheless, restrictions upon a defendant's ability to present witnesses are permissible, and in determining whether "the trial court's exclusion of the proffered evidence violated [the defendant's] right to present witness testimony," we conduct a two-part inquiry. First, we examine "whether that testimony was relevant, and if so, whether the state's interests in excluding the evidence outweighed [the defendant's] interests in its admittance." Richmond, 122 F.3d at 872 (emphasis added). "This inquiry includes an examination as to whether more traditional factors such as prejudice, issue and jury confusion weigh in favor of excluding the testimony." Id. Second, "we examine whether the excluded testimony was material whether it was of such an exculpatory nature that its exclusion affected the trial's outcome." Id. (emphasis added). 155 In conducting this inquiry, we conclude that the trial judge's exclusion of the defendant's proffered testimony did not violate the defendant's rights under the Fifth and Sixth Amendments. Defendant sought admission of his proffered evidence on two grounds: first, "in support of his defense that [Jane Doe] consented"; and second, "to rebut inferences that [she] was sexually naive, innocent, and unsophisticated prior to her alleged kidnapping." Appellant's Opening Brief, at 31; 1 R., Doc. 65. Applying the Richmond test, we conclude that the testimony proffered by the defendant is, at best, only marginally relevant. We are unpersuaded by the suggestion that facts to which the proffered witnesses would testify that [Jane] earlier touched men in a sexually inappropriate manner is relevant to a determination as to whether she consented to travel with the defendant or to having sexual contacts with him on the occasions in question here. White Buffalo, 84 F.3d at 1054. We likewise believe that the relevance of Jane's alleged conduct to rebut any inference the jury may have drawn regarding her sexual naivety is too attenuated, particularly in light of Richmond's charge that we must balance the government's interest in excluding the proffered evidence against the defendant's interest in its admittance. As we noted in Ramone, 218 F.3d at 1235, Rule 412 "supports important interests implicated in sexual assault cases," including safeguarding the victim "against invasion of privacy, potential embarrassment, and stereotyping." Given the nature of these important governmental interests, we are unable to conclude that the defendant's interest in admitting the proffered testimony is sufficiently weighty to warrant finding a constitutional violation. 156 Because we conclude that the trial judge did not err in excluding the proffered testimony under Rule 412, we do not reach the defendant's argument that the trial judge abused his discretion by excluding the same evidence under Rule 403. V. CONCLUSION 157 Defendant's final contention is that the cumulative effect of the trial judge's putative errors deprived him of his Fifth Amendment right to a fair trial. See Appellant's Opening Brief, at 37. Because, as discussed above, we find that the trial judge's conduct was not in error, we cannot agree. 158 Accordingly, we AFFIRM the judgment of the district court. NOTES: 1 Defendant filed a Motion to Supplement the Record with the two sets of questions posed by the jury during deliberations. Appellant's Opening Brief at 8, n.4. We grant defendant's motion and note that the Appellee's brief cites Appellant's supplemental material. 2 Cf. Burton v. Johnson, 948 F.2d 1150, 1159 (10th Cir. 1991) (holding that a juror who was herself a victim of domestic abuse "would have been excused for cause" had she candidly answered questioning during voir dire where "battered woman's syndrome" was the defense to a first degree murder charge). 3 In addition, the jury asked "[c]an we know if Bentley has been charged with sexual assault?" The trial judge's decision to decline to answer this question is not challenged in this appeal. 4 It is permissible for an indictment to use the word "and" although the statute employs the word "or." United States v. Daily, 921 F.2d 994, 1001 (10th Cir. 1991). As we have noted, it is "hornbook law that a crime denounced in the statute disjunctively may be alleged in an indictment in the conjunctive, and thereafter proven in the disjunctive." United States v. Gunter, 546 F.2d 861, 868-69 (10th Cir. 1976); see also United States v. Pauldino, 443 F.2d 1108, 1112 (10th Cir. 1971) ("[W]e do not believe that the government's proof of some but perhaps not all of the prohibited modes of violating the statute constitutes a fatal defect in appellants' conviction. It is settled that where a crime denounced disjunctively in the statute is charged in the conjunctive, proof of any one of the allegation will sustain a conviction."). Our opinion in United States v. Austin, 933 F.2d 833 (10th Cir. 1991), is instructive. In that case, the defendant had been tried for violating 18 U.S.C. § 111, which provides that whoever "forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties" is guilty of the offense charged. Austin, 933 F.2d at 843 (emphasis added). The indictment, however, charged the defendant in the conjunctive, alleging that he had done all of the unlawful actions specified in the statute. See id. During their deliberations, the jury sent the trial judge a note asking a question similar to the one posed by the jury in Powell's trial. The Austin jury inquired: "Instruction #2 . . . states an 'and' statement. However, instruction #7 states an Or statement. Which is correct? Under section 111(a)(1) -- law or indictment--." In response, the trial judge instructed the jury that "You should determine the case on the basis of instruction 7," which stated in the disjunctive the means by which the offense could be committed. On appeal, we held that the "law is clear that such submission to the jury was proper, no fatal variance being involved." Austin, 933 F.2d at 843. We believe that the legal issues in Austin are indistinguishable from those presented here. Accordingly, we find no fault in the substance of the trial judge's sua sponte instructions to the jury. 5 The trial judge had already reminded the jury on several occasions of the need to find lack of consent in order to convict the defendant. Before closing arguments, the trial judge charged the jury in Instruction No. 1 that "All the instructions of law given to you by the Court, those given to you at the beginning of the trial, those given to you during the trial, and these final instructions must guide and govern your deliberations." 8 R. at 1295. In Instruction No. 24 the trial judge charged the jury that "[i]n order to sustain its burden of proof for the crime of kidnapping as charged in the indictment, the government must prove the following three elements beyond a reasonable doubt." 8 R. at 1310 (emphasis added). Whereupon the trial judge explicitly delineated the three elements that must be satisfied to sustain a guilty verdict: 1, the defendant Bentley Scott Powell knowingly and willfully, seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away [Jane Doe]; 2, [Jane Doe] was thereafter transported in interstate commerce while so seized, confined, inveigled, decoyed, kidnapped, abducted or carried away; and 3, the defendant, Bentley Scott Powell, held [Jane Doe] for ransom, reward, or otherwise; namely, for sexual gratification, contact, exploitation, and assault. 8 R. at 1310-11. 6 The unanimity instruction appears as part of Instruction number 34: Your verdict must represent the collective judgment of the jury. In order to return a verdict, it is necessary that each juror agree to it. Your verdict, in other words, must be unanimous. It is your duty as jurors to consult with one another and to deliberate with one another with a view towards reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for himself and herself but do so only after an impartial consideration of the evidence in the case with your fellow jurors. 8 R. at 1313-14. 7 We note that there is disagreement among the circuits on this point. In United States v. Ryan, 828 F.2d 1010, 1020 (3d Cir. 1987), the Third Circuit provided for four exceptions to our assumption that a general instruction on unanimity is sufficient. Ryan held that a specific unanimity instruction may be necessary: (1) in cases with exceptionally complex facts; (2) if a single count contains marginally related or contradictory allegations; (3) in cases in which there is some variance between the indictment and the proof offered at trial; and (4) (most relevant to this case), in cases with a tangible indication of jury confusion. See also Phillips, 869 F.2d at 1375 (Seymour, J., dissenting) ("The Third, Fifth, and Ninth Circuits have explicitly rejected the view that if the jury is in complete agreement as to the defendant's guilt, and sufficient evidence supports a finding of guilt under some applicable theory, an appellate court must affirm the conviction."); United States v. Beros, 833 F.2d 455, 461 (3d Cir. 1987) ("[J]ust as the sixth amendment requires jury unanimity in federal criminal cases on each delineated offense that it finds a defendant culpable, it must also require unanimity regarding the specific act or acts which constitutes that offense. Absent such certainty, the unanimity requirement would provide too little protection in too many instances.") (internal citation omitted); United States v. Payseno, 782 F.2d 832, 836 (9th Cir. 1986) ("When it appears however, that there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice. To correct any potential confusion in such a case, the trial judge must augment the general instruction to ensure the jury understands its duty to unanimously agree to a particular set of facts."). 8 Federal Rule of Evidence 403 provides that: "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."	{ "pile_set_name": "FreeLaw" }
STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED March 19, 2015 Plaintiff-Appellee, v No. 319566 Wayne Circuit Court GUADALUPE MALDONADO, LC No. 12-011910-FH Defendant-Appellant. Before: BOONSTRA, P.J., and SAWYER and O’CONNELL, JJ. PER CURIAM. Defendant, Guadalupe Maldonado, appeals as of right his conviction of carrying a concealed weapon in a vehicle, MCL 750.227(2), following a jury trial. The trial court sentenced him to serve 4 to 10 years’ imprisonment as a fourth-offense habitual offender, MCL 769.12. We affirm. I. FACTS In February 2012, three DEA Task Force Officers drove in an unmarked car to an address in Detroit. The officers intended to place a GPS tracking device on a Cadillac Escalade pursuant to a search warrant. As two of the officers walked toward the Escalade, Maldonado and Jessica Brady left a nearby house and entered the Escalade. The officers decided not to place the tracking device and instead continued walking toward their car, in which a third officer was waiting. At that point, the Escalade pulled alongside the officers’ car. The officers heard gunshots and saw muzzle flashes from inside the Escalade. After apprehending Maldonado and Brady, officers recovered a semiautomatic pistol from the Escalade’s driver’s side floorboard. Officers determined that Brady had a concealed pistol license, and witnesses testified that the gun belonged to Brady. One witness testified that he saw Brady handle the gun on one occasion when Maldonado was present, but Maldonado did not touch the gun. Brady and Maldonado had previously applied for a permit to use a gun range, and there was no record that either rented a gun. A latent print examiner with the Michigan State Police Crime Laboratory found one of Maldonado’s fingerprints on the pistol’s magazine. The jury found Maldonado guilty of carrying a concealed weapon, but acquitted him of three counts of assault with intent to commit murder, one count of felon in possession of a firearm, one count of discharging a firearm from a vehicle, and one count of possessing a firearm -1- during the commission of a felony. When sentencing Maldonado, the trial court assessed ten points under offense variable (OV) 9 because the sentencing offense involved three victims. Maldonado appeals his conviction and sentence. II. CARRYING A CONCEALED WEAPON First, Maldonado contends that the trial court improperly instructed the jury when it instructed them on possession, but not on “carrying.” We disagree. When reviewing a claim of instructional error, this Court views the instructions as a whole to determine whether the issues to be tried were adequately presented to the jury. People v Martin, 271 Mich App 280, 337-338; 721 NW2d 815 (2006). Generally, we review de novo questions of law, including whether an omitted instruction violated a defendant’s due process rights. Id. But to preserve an issue for appellate review, the defendant must make a timely objection before the trial court. People v Pipes, 475 Mich 267, 277; 715 NW2d 290 (2006). If a defendant fails to do so, we review the issue for plain error. Id. at 278. The trial court commits plain error when an error occurred, it was clear or obvious, and it affected the defendant’s substantial rights. Id. at 279. The elements of carrying a concealed weapon in a vehicle are that (1) there was a weapon present in a vehicle that the defendant operated or occupied, (2) the defendant knew the weapon was present, and (3) the defendant was carrying the weapon. People v Nimeth, 236 Mich App 616, 622; 601 NW2d 393 (1999). A defendant’s mere knowledge of a weapon while being present near it does not constitute carrying a weapon. People v Butler, 413 Mich 377, 384; 319 NW2d 540 (1982). A defendant carries a weapon when the defendant “exercises some element of intentional control or dominion” over the weapon. Id. at 390 n 11. Whether the defendant carried a weapon depends on the presence of several factors, including (1) the accessibility or proximity of the weapon to the person of the defendant, (2) defendant’s awareness that the weapon was in the motor vehicle, (3) defendant’s possession of items that connect him to the weapon, such as ammunition, (4) defendant’s ownership or operation of the vehicle, and (5) the length of time during which defendant drove or occupied the vehicle. [Id.] Similarly, a defendant has constructive possession of a firearm when the defendant has “proximity to the article together with indicia of control.” People v Hill, 433 Mich 464, 470- 471; 446 NW2d 140 (1989). See Butler, 413 Mich at 390 n 11. In this case, the trial court instructed the jury on actual and constructive possession. As can be seen above, “carrying” a weapon is essentially the same thing as “possessing” a weapon. Both require that the defendant knows a weapon is present and exercises dominion or control over it. Further, a review of the instructions as a whole indicates that the trial court’s instructions adequately presented this issue to the jury. We conclude that the trial court did not plainly err when it instructed the jury on possessing a weapon rather than instructing it on carrying a weapon. Second, Maldonado contends that the evidence was not sufficient to support his conviction because he did not carry the gun. Again, we disagree. -2- A claim that the evidence was insufficient to convict a defendant invokes that defendant’s constitutional right to due process of law. People v Wolfe, 440 Mich 508, 514; 489 NW2d 748 (1992). This Court reviews de novo issues involving the sufficiency of the evidence. People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). We review the evidence in a light most favorable to the prosecutor to determine whether a rational trier of fact could find that the prosecutor proved the crime’s elements beyond a reasonable doubt. Nimeth, 236 Mich App at 622. We will not interfere with the trier of fact’s role to determine the weight of the evidence or the credibility of the witnesses. Wolfe, 440 Mich at 514-515; People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008). Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime, including the defendant’s state of mind, knowledge, or intent. Nimeth, 236 Mich App at 622. In this case, witnesses testified that Brady owned the gun and that Maldonado had been present when Brady was handling it. Brady and Maldonado went to a gun range together, and there was no indication that either rented a different weapon. Maldonado’s fingerprint was on the gun’s magazine. Given this evidence, the jury could reasonably infer that Maldonado knew that Brady’s gun was in the vehicle and he exercised dominion and control over it, even if it concluded that he was not the person who shot at the officers. Further, a jury may render inconsistent verdicts. People v Vaughn, 409 Mich 463, 464; 295 NW2d 354 (1980). Therefore the jury’s inconsistent verdicts regarding felon in possession of a firearm and possessing a firearm during the commission of a felony do not require this Court to overturn Maldonado’s conviction. We conclude that sufficient evidence supported Maldonado’s conviction. III. OV 9 Maldonado contends that the trial court improperly assessed ten points under OV 9. According to Maldonado, the trial court considered conduct outside his sentencing offense, and there were no victims of his crime because the jury found that Maldonado was not the shooter. We disagree. This Court reviews for clear error the trial court’s findings supporting its decisions to assess points under the sentencing guidelines. People v Osantowski, 481 Mich 103, 111; 748 NW2d 799 (2008). A finding is clearly erroneous if, after reviewing the entire record, we are definitely and firmly convinced that the trial court made a mistake. People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012). The trial court scores OV 9 if victims are placed in danger of death or physical injury. MCL 777.39(1). The trial court properly assesses 10 points under OV 9 when “[t]here were 2 to 9 victims who were placed in danger of physical injury or death[.]” MCL 777.39(1)(c). The trial court may not consider conduct after the completion of the sentencing offense when assessing OV 9. People v McGraw, 484 Mich 120, 133-134; 771 NW2d 655 (2009). Two or more persons can constructively possess a firearm at the same time. Hill, 433 Mich at 470. Whether Maldonado personally shot at the victims in danger is not determinative. For the reasons stated in the previous section, there was sufficient evidence to find that Maldonado was carrying a concealed weapon in the vehicle. The weapon was shot several times at the three officers. There is no indication that Maldonado’s knowledge or control of the gun -3- was interrupted during the shooting. Accordingly, there was sufficient evidence from which the trial court could find that, while Maldonado was carrying a concealed weapon, three victims were placed in danger of death or physical injury. We conclude that the trial court did not err when it assessed ten points under OV 9. Affirmed. /s/ Mark T. Boonstra /s/ David H. Sawyer /s/ Peter D. O’Connell -4-	{ "pile_set_name": "FreeLaw" }
78 S.E.2d 122 (1953) 238 N.C. 364 JUSTICE v. MITCHELL et al. No. 161. Supreme Court of North Carolina. October 14, 1953. 124 J. Carlton Cherry, Ahoskie, and Pritchett & Cooke, Windsor, for plaintiff, appellee. Jones, Jones & Jones, Winton, and Albion Dunn, Greenville, for defendants, appellants. DENNY, Justice. The appellant excepts to and assigns as error the instruction given to the jury on the third issue. We concede there is some merit to the exception, since the defendant James R. Mitchell could not have been in possession of the premises in question as a life tenant under the provisions of his mother's will prior to her death on 5 July, 1949. Even so, the facts disclosed on this record require an affirmance of the judgment entered below. An appellant will not be granted a new trial when the error complained of is harmless and another hearing could be of no benefit to him. Booth v. Hairston, 193 N.C. 278, 136 S.E. 879, 57 A.L.R. 1186; Cauble v. Southern Express Co., 182 N.C. 448, 109 S.E. 267. Conceding that Mollie J. Mitchell signed the deed of gift to James R. Mitchell on 31 December, 1940, and delivered it to him on that date and that he immediately went into possession of the premises described therein, this unregistered deed could not in any event constitute color of title until after the expiration of two years from its date. The deed of gift was valid at the time of its execution and conveyed to the grantee the title to the lands described therein. However, after he failed to register it within two years from the making thereof, as required by G.S. § 47-26, it became void ab initio and title to the premises revested in the grantor. Winstead v. Woolard, 223 N.C. 814, 28 S.E.2d 507; Cutts v. McGhee, 221 N.C. 465, 20 S.E. 2d 376; Allen v. Allen, 209 N.C. 744, 184 S.E. 485; Reeves v. Miller, 209 N.C. 362, 183 S.E. 294; Booth v. Hairston, 195 N.C. 8, 141 S.E. 480; Id., supra. The contention of the appellant that he was in the adverse possession of the premises conveyed to him under color of title for more than seven years next prior to the institution of this suit, within the meaning of G.S. § 1-38, is untenable. Color of title is defined in Smith v. Proctor, 139 N.C. 314, 51 S.E. 889, 892, 2 L.R.A.,N.S., 172, as "a paper writing (usually a deed) which professes and appears to pass the title, but fails to do so." Seals v. Seals, 165 N.C. 409, 81 S.E. 613; Crocker v. Vann, 192 N.C. 422, 135 S.E. 127; Ennis v. Ennis, 195 N.C. 320, 142 S.E. 8; Glass v. Lynchburg Shoe Co., 212 N.C. 70, 192 S.E. 899; 1 Am.Jur., Adverse Possession, § 190, page 898. In support of the view that a valid deed is not color of title, Hoke, J., in speaking for this Court in the case of Janney v. 125 Robbins, 141 N.C. 400, 53 S.E. 863, 866, said: "It might well be suggested that in Austin v. Staten [126 N.C. 783, 36 S.E. 338] the unregistered deed relied on as color could not avail for any such purpose, because, until a second deed was executed and registered, the first passed the title, and a deed never operates as color which conveys the real title." An instrument that passes title is not color of title. 1 Am.Jur., Adverse Possession, § 190, page 898; Collins v. Davis, 132 N.C. 106, 43 S.E. 579, 581. In the last cited case this Court said: "Where one makes a deed for land for a valuable consideration, and the grantee fails to register it, but enters into possession thereunder and remains therein for more than seven years, such deed does not constitute color of title". Adverse possession to ripen into title within seven years must be under color, G.S. § 1-38, otherwise, a period of twenty years is required, G.S. § 1-40. Ward v. Smith, 223 N.C. 141, 25 S.E.2d 463. Even so, in order "to ripen a colorable title into a good title there must be such possession and acts of dominion by the colorable claimant as will make him liable to an action of ejectment. This is said to be the test." Lewis v. Covington, 130 N.C. 541, 41 S.E. 677, 678; Price v. Whisnant, 232 N.C. 653, 62 S.E.2d 56. Certainly at no time from 1 January, 1941 until 1 January, 1943, if the defendant James R. Mitchell entered into possession of the premises pursuant to the terms of the deed of gift as he testified he did in the court below, could he have been ejected as a trespasser. However, "a person originally entering without color of title may on subsequent acquisition of color be deemed to have held adversely under color from the latter date, still his color of title does not relate back to the time of his entry." 2 C.J.S., Adverse Possession, § 68, page 585. Ordinarily an unregistered deed is not color of title, except as between the original parties. Johnson v. Fry, 195 N.C. 832, 143 S.E. 857. Cf. Eaton v. Doub, 190 N.C. 14, 128 S.E. 494, 40 A.L.R. 273. Therefore, conceding, but not deciding, that the unregistered deed of gift after it became void was color of title as between the grantor and the grantee from 1 January, 1943 until the death of the grantor on 5 July, 1949, the period of time was insufficient to ripen title in the defendant James R. Mitchell. Battle v. Battle, 235 N.C. 499, 70 S.E.2d 492. The title to the premises being in Mollie J. Mitchell at the time of her death, passed to her devisees in accord with the provisions of her last will and testament. Battle v. Battle, supra; Brite v. Lynch, 235 N.C. 182, 69 S.E.2d 169; Winstead v. Woolard, supra. Consequently, after the death of Mollie J. Mitchell the possession of the defendant was, as a matter of law, as a life tenant pursuant to the provisions of the will. Being a life tenant under his mother's will, he could not renounce his rights thereunder and agree to become a trespasser in order to ripen title under the deed of gift even after its registration. Winstead v. Woolard, supra; Nixon v. Williams, 95 N.C. 103; Gaylord v. Respass, 92 N.C. 553; Gadsby v. Dyer, 91 N.C. 311. Moreover, if he could do so, the deed of gift in no event could be color of title against the plaintiff, except from and after its registration. In the trial below we find no prejudicial error. No Error.	{ "pile_set_name": "FreeLaw" }
463 F.3d 893 Randall Allan YEE, Petitioner-Appellee,v.Bill DUNCAN, Warden, Respondent-Appellant. No. 05-55265. United States Court of Appeals, Ninth Circuit. Submitted February 9, 2006.* Filed September 11, 2006. COPYRIGHT MATERIAL OMITTED Barry J.T. Carlton, Deputy Attorney General, San Diego, CA, for the respondent-appellant. Randall Allan Yee, Pro Se, San Luis Obispo, CA, for the petitioner-appellee. Appeal from the United States District Court for the Central District of California; Lourdes G. Baird, District Judge, Presiding. D.C. No. CV-03-01764-LGB. Before ALEX KOZINSKI, STEPHEN S. TROTT, and CARLOS T. BEA, Circuit Judges. ORDER WITHDRAWING OPINION AND OPINION TROTT, Circuit Judge. ORDER 1 The Opinion filed on March 28, 2006, and reported at 441 F.3d 851 (9th Cir. 2006), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit. 2 With this action, the previous opinion filed March 28, 2006, becomes inoperative and the pending petition for rehearing and petition for rehearing en banc becomes moot. The parties, should they so choose, are at liberty to file new petitions with respect to the new opinion. 3 So ORDERED. OPINION 4 In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court established the principle that peremptory challenges may not be used to exclude jurors on account of race. Although Batson involved peremptory challenges based on race, in J.E.B. v. Alabama, 511 U.S. 127, 146, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), the Supreme Court subsequently extended Batson's principles to peremptory challenges based on gender. The broader principle in Batson and later case law is that a defendant opposing a peremptory challenge bears the ultimate burden of proving the challenge was improper and that this burden never shifts. See Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). 5 In the present case, the district court concluded that the state trial and appellate courts unreasonably determined that habeas petitioner, Randall Allan Yee, failed to show purposeful discrimination. The district court's sole basis for granting Yee's petition was the prosecution's inability to explain one of her peremptory challenges. This inability by itself, however, is not dispositive, and did not relieve Yee of his ultimate burden of persuasion. Here, the trial court and the state appellate court determined that Yee did not meet that ultimate burden. That determination, in light of Supreme Court precedent and law from lower federal courts, was reasonable. Accordingly, we reverse the district court's decision and deny Yee's petition for habeas relief. 6 * On October 21, 1999, petitioner, Randall Allan Yee, was charged with three counts of sexual battery in violation of California Penal Code § 243.4(c), and three counts of committing a lewd and lascivious act upon a child under age 14 in violation of California Penal Code § 288(a). The government alleged that Yee, a dental assistant, engaged in nonconsensual and improper sexual contact when he placed his penis in the hands of two adult women as they awoke from general anesthesia after dental procedures and repeatedly stuck his hand down a ten-year-old girl's pants and touched her vagina as he prepared her for a tooth extraction. 7 At Yee's trial, the prosecutor exercised during voir dire nine of her ten peremptory challenges. The first six were used to remove men; the seventh a woman, and the last two men. Yee continued to exercise his peremptory challenges after the prosecutor on two occasions had accepted the jury. When Yee's peremptory challenge brought a new venire member into the jury box, the prosecutor used a challenge to remove that individual, a man. Yee then objected under People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978), the California counterpart to Batson.1 Yee then requested that the trial court declare a mistrial and begin jury selection anew, or, in the alternative, disallow the prosecutor from exercising her last peremptory challenge. 8 In response, the trial judge found a prima facie case of gender discrimination and requested that the prosecutor offer an explanation for striking each male juror in the order she exercised her peremptory strikes. When she came to Juror # 4, the prosecutor explained, "I'm trying to remember what it was about [Juror # 4]. If I can skip that one for a moment and move on." With the judge's permission, the prosecutor then offered explanations for each of the remaining strikes. It is undisputed that the prosecutor offered gender-neutral reasons for striking seven of the eight male venire members. Returning to Juror # 4, the prosecutor explained: 9 And [Juror # 4], unfortunately, your honor, I can't — I can't recall specifically what it was about [Juror # 4]. I have down that he was a system analyst and that he was on a prior jury that reached a verdict and his wife was a homemaker, but other than that, to be honest, I can't recall. 10 Despite the prosecutor's failure to offer an explanation for striking Juror # 4, the trial judge denied Yee's Wheeler/Batson objection, finding there had been "no systematic exclusion of the male gender." The trial court stated that it believed the prosecutor's representations to the court and found them unobjectionable. 11 On March 10, 2000, the jury convicted Yee on all counts. On July 7, 2000, the court sentenced Yee to eight years in state prison. On direct appeal, the California Court of Appeal affirmed Yee's conviction even though the prosecutor offered no reason for striking Juror # 4. People v. Yee, No. G027598, 2002 WL 31661266 (Cal.Ct. App. Nov.26, 2002). The California Court of Appeal examined voir dire testimony of the challenged jurors, and found that the prosecutor's reasons for excluding each potential juror were plausible and that the trial judge was justified in accepting them. As to Juror # 4, the court noted that 1) a mere failure to remember was not conclusive, 2) the trial court was in the best position to determine whether the prosecutor honestly could not remember, and 3) there was sufficient voir dire testimony regarding Juror # 4's previous service on a medical malpractice jury to provide a basis for exclusion. On February 11, 2003, the California Supreme Court denied review. 12 Yee filed a federal habeas petition on January 8, 2004. He raised four claims, including the assertion that the prosecution impermissibly exercised peremptory challenges against male jurors. The district court granted relief on that ground only, concluding that "the prosecutor's failure to state a legitimate gender-neutral reason for striking [Juror # 4] from the jury violated Petitioner's constitutional rights," and that the California Court of Appeal's decision affirming the trial court was an "objectively unreasonable application of Batson and its progeny." The district court reasoned that the prosecutor's inability to remember why she struck Juror # 4 constituted a per se violation of Yee's equal protection rights and that it would be objectively unreasonable to conclude otherwise. The government appealed the district court's grant of the petitioner's writ. II 13 We review de novo the district court's grant or denial of a 28 U.S.C. § 2254 petition for writ of habeas corpus. Bailey v. Rae, 339 F.3d 1107, 1111 (9th Cir.2003). Because Yee is in custody pursuant to a judgment of a state court, we may not affirm the district court's grant of habeas relief unless the California Court of Appeal's determination "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or . . . resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). We may, however, affirm the district court on any ground supported by the record, even if it differs from the district court's rationale. Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir.2004). 14 "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (citing Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). However, the "unreasonable application" clause requires the state court decision to be "more than incorrect or erroneous." Id. "The state court's application of clearly established law must be objectively unreasonable." Id. 15 In applying these standards, we look to the "last reasoned decision" in the state court system, here, the opinion of the California Court of Appeal. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). III 16 Whether Yee's habeas petition should be granted turns on whether it was objectively unreasonable for the California Court of Appeal to conclude that Yee did not meet his ultimate burden of establishing purposeful discrimination — even when the prosecutor stated she forgot the reason why she exercised the peremptory challenge to Juror # 4, a statement the trial court accepted as credible. We hold that the California Court of Appeal's decision was not objectively unreasonable and conclude that the district court erred by not giving sufficient consideration to the Supreme Court's governing admonition that the "ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the opponent of the strike." Purkett, 514 U.S. at 768, 115 S.Ct. 1769. Instead, the district court focused too narrowly on the three-step process of production. 17 * The California Court of Appeal observed correctly the nature of Yee's equal protection claim and recognized the applicability of Batson and its progeny. Thus, the only remaining inquiry is whether the governing legal rules of these cases were reasonably applied to the particular facts of this case. See Williams, 529 U.S. at 412, 120 S.Ct. 1495. "In determining whether a state court's decision involved an unreasonable application of clearly established federal law, it is appropriate to refer to decisions of the inferior federal courts in factually similar cases." Musladin v. Lamarque, 427 F.3d 653, 658 (9th Cir. 2005) (quoting Richardson v. Bowersox, 188 F.3d 973, 978 (8th Cir.1999) (internal quotation marks omitted)). 18 In Batson, the Supreme Court held that "[p]urposeful racial discrimination in selection of the venire violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure." 476 U.S. at 86, 106 S.Ct. 1712. But the Court noted that "[a]s in any equal protection case, the burden is, of course, on the defendant who alleges discriminatory selection of the venire to prove the existence of purposeful discrimination." Id. at 93, 106 S.Ct. 1712 (internal quotation marks and citations omitted). To aid the trial court in determining whether the defendant has met this burden, the Court provided a three-step inquiry. Id. at 96-98, 106 S.Ct. 1712. 19 Per the Supreme Court's direction, at step one, the defendant is required to make a prima facie showing that "he is a member of a cognizable racial group" and that the government exercised "peremptory challenges to remove from the venire members of the defendant's race." Id. at 96, 106 S.Ct. 1712 (internal citations omitted). Second, the prosecutor must "articulate a neutral explanation related to the particular case to be tried." Id. at 98, 106 S.Ct. 1712. Finally, the trial court has the "duty to determine if the defendant has established purposeful discrimination." Id. 20 Subsequent Supreme Court and circuit case law has reiterated the three-step process, making it the most readily identifiable and frequent application of Batson. See, e.g., Sims v. Brown, 425 F.3d 560, 574 (9th Cir.2005). However, the three-step inquiry should not be applied without consideration of other relevant factors. Recent Supreme Court case law has emphasized the importance of the over-encompassing principle that the burden to prove discrimination is always on the opponent of the challenge. In Purkett, the Supreme Court gave the three-step inquiry important context when it explained "that the ultimate burden of persuasion regarding racial [or in this case gender] motivation rests with, and never shifts from, the opponent of the strike." 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). The Court thus made an important distinction between Batson's first two steps, which are mere burdens of production, and step three, where the ultimate burden — the burden that "never shifts" — is decided. Id. at 768, 115 S.Ct. 1769 ("It is not until the third step that the persuasiveness of the justification becomes relevant — the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.") (internal citations omitted).2 21 Here, the California Court of Appeal identified Batson and its progeny as the controlling legal precedent. It applied these cases to the facts presented and concluded that Yee did not meet his ultimate burden of proof. Considering both the three-step inquiry announced in Batson and the "ultimate burden" language in Purkett, the California appellate court concluded that the trial court's determination was correct. We conclude that the appellate court acted reasonably. The California Court of Appeal's treatment of step two as a non-dispositive precursor to the ultimate determination at step three was reasonable. 22 Given the Supreme Court's explicit directive that the ultimate burden is always with the defendant, any burden at step two cannot be definitive. Why? Because the prosecution would then bear the ultimate burden even though only an inference of discrimination had been made. This is contrary to what we have said is the purpose of Batson. "What matters is the real reason" why the jurors were stricken, Paulino, 371 F.3d at 1090; inferences are simply not enough. 23 Consequently, step two is an opportunity for the prosecution to explain the real reason for her actions. A failure to satisfy this burden to produce — for whatever reason — becomes evidence that is added to the inference of discrimination raised by the prima facie showing, but it does not end the inquiry. The trial court then moves on to step three where it considers all the evidence to determine whether the actual reason for the strike violated the defendant's equal protection rights. 24 Perhaps nothing illustrates why the California Court of Appeal's decision is reasonable more than the district court's approach. The district court concluded that the prosecutor's inability to give a reason, regardless of any evidence in the record, rendered the jury selection process a per se violation of Yee's equal protection rights. The district court focused exclusively on the three-step inquiry — particularly step two. The district court focused on language in Batson that identified step two as a "burden" that had to be overcome by the prosecution. The district court determined that because the prosecutor forgot the reason why she struck Juror # 4, she never met her burden of providing a race-neutral reason for her actions and that this failure alone mandated reversal. As a result, the district court never reached step three. In so doing, the district court relieved Yee of his "ultimate burden of persuasion." See Purkett, 514 U.S. at 768, 115 S.Ct. 1769. 25 This approach also led the district court to be critical of the trial court's consideration of circumstantial evidence in the record not presented by the prosecutor. This criticism is misplaced. If the stated purpose of Batson is to determine the "real" reason for the prosecutor's actions, Paulino, 371 F.3d at 1090, it is contrary to that purpose if we demand trial courts to ignore evidence of the prosecutor's "real" intent when it is available. Evidence of jury bias, or lack thereof, can never be irrelevant to a trial court's solemn duty to determine the ultimate issue of whether there has been purposeful discrimination. 26 In sum, we conclude that it was not unreasonable for the California Court of Appeal to decide that Yee's equal protection rights were not violated. The three-step inquiry must be applied in congruence with the other legal principles articulated in Batson and Purkett. When this test is properly applied, a prosecutor's failure to provide a reason for striking a potential juror is not an automatic violation of equal protection. Such a failure, or in this case an assertion of bad memory, is evidence of discrimination. This evidence notwithstanding, the trial court must still proceed to step three before it can determine that purposeful discrimination has occurred. B 27 The reasonableness of the California Court of Appeal's decision is substantiated by two of our sister circuits' opinions and recent Supreme Court dicta suggesting approval of those opinions. We turn to the circuits first. 28 In Bui v. Haley, the Eleventh Circuit rejected the analysis proffered by the district court when it stated that "mere failure to explain every strike of black jurors will not necessarily prevent a prosecutor from successfully rebutting a prima facie case of race discrimination, where there is sufficient circumstantial evidence [in the record] from which the court can deduce a race-neutral reason." 321 F.3d 1304, 1317 (11th Cir.2003). The Eleventh Circuit reversed in part the district court's denial of the habeas petition holding the trial court could not reasonably have found that an assistant prosecutor was in a position to know the lead prosecutor's reasons for the strikes and, therefore, could not rely on the assistant's reasons. But in the portion of the opinion relevant to this case, the court held it was proper for the Alabama Supreme Court to allow a trial judge to rely on "circumstantial evidence to support an inference that a race-neutral reason underlies a particular strike, despite the lack of any explicit race-neutral explanation from the State." Id. 29 The Eleventh Circuit is not alone. In United States v. Forbes, the Fifth Circuit indicated its approval of the Eleventh Circuit's position noting that "`[f]ailure by a prosecutor to explain every peremptory strike of black jurors is not necessarily fatal to the prosecutor's ability to rebut a prima facie case.'" 816 F.2d 1006, 1011 n. 7 (5th Cir.1987) (quoting United States v. David, 803 F.2d 1567, 1571 (11th Cir. 1986)). 30 These circuit cases notwithstanding, the most salient, albeit non-binding, authority is found in Johnson v. California, 125 S.Ct. 2410 (2005). In Johnson the question before the Supreme Court was whether Batson permitted the State of California to require opponents of a strike to show, at step one, whether it was "more likely than not" that the other party's peremptory challenge was based on impermissible group bias. Id. at 2416. The Court recognized that "states do have flexibility in formulating appropriate procedures to comply with Batson," and concluded that the "`more likely than not' standard is an inappropriate yardstick by which to measure the sufficiency of a prima facie case." Id. In coming to its conclusion, the Court emphasized the directive it set forth in Purkett: "The first two Batson steps govern the production of evidence that allows the trial court to determine the persuasiveness of the defendant's constitutional claim." Id. at 2417. The Court went on to explain that it was not until step three that "the trial court determines whether the opponent of the strike has carried his[ultimate] burden of proving purposeful discrimination." Id. (quoting Purkett, 514 U.S. at 768, 115 S.Ct. 1769). Accordingly, the Supreme Court rejected any standard that changed step one into a burden of persuasion rather than a burden of production used to manage the introduction of evidence. 31 In a footnote, the Court indicated a similar concern with regard to step two, and addressed a fact pattern similar to the one at hand, 32 In the unlikely hypothetical in which the prosecutor declines to respond to a trial judge's inquiry regarding his justification for making a strike, the evidence before the judge would consist not only of the original facts from which the prima facie case was established, but also the prosecutor's refusal to justify his strike in light of the court's request. Such a refusal would provide additional support for the inference of discrimination raised by a defendant's prima facie case. 33 Id. at 2418 n. 6. Thus, the Supreme Court — interpreting Batson and its progeny — indicated, as we hold today, that a failure to provide an explanation for exercising a strike does not relieve the trial court of its responsibility to make the ultimate determination of whether there has been purposeful discrimination. Consequently, because the Supreme Court was not creating new case law in Johnson, but merely interpreting Batson, we find it difficult to conclude that the same interpretation, here made by the California Court of Appeal, is objectively unreasonable. IV 34 Having determined that the prosecutor's failure to explain Juror # 4's strike is not a per se violation of Yee's equal protection rights, we now consider whether the California Court of Appeal unreasonably determined from the facts of the record that Yee did not meet his burden of proving purposeful discrimination with regard to Juror # 4. Based on our review of the record, we conclude there was sufficient evidence to support the trial court's determination that Yee never met his burden. The voir dire testimony suggests a gender-neutral reason why the prosecutor might have wanted to challenge Juror # 4: Juror # 4 had served as a juror on a medical malpractice case. As the California Court of Appeal noted, such service could well have brought the juror too close to the malpractice issues presented in Petitioner's case, which arise from acts Yee committed in his dental office. Moreover, the prosecutor twice accepted the jury and the prosecutor had non-discriminatory, objectively verifiable reasons for excluding all of the other removed venire members. Accordingly, it was reasonable for the trial court to conclude that, though the prosecutor could not remember the reasons for challenging Juror # 4, Yee did not establish purposeful discrimination. V 35 We conclude that the California Court of Appeal decision was not objectively unreasonable and, therefore, reverse the district court's order granting Yee's habeas petition. 36 REVERSED and REMANDED with instructions to enter judgement on behalf of Respondent Duncan. Notes: * This case was submitted for decision without oral argument 1 To the extent theWheeler standard differs from Batson, the federal standard controls. See Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005). 2 Purkett also explained that the "admonition in Batson that to rebut a prima facie case, the proponent of a strike must give a clear and reasonably specific explanation of his legitimate reasons for exercising the challenges" was meant to "refute the notion that a prosecution could satisfy his burden of production by merely denying that he had a discriminatory motive or by merely affirming his good faith." Id. at 769, 115 S.Ct. 1769 (internal quotation marks omitted). However, this does not mean that we halt the inquiry at step two. It means only that a simple denial of discriminatory motive or affirmance of good faith would leave the opponent of the strike to continue with his burden of proof, now aided by the opportunity to comment upon the prosecution's failure even to meet his burden of production to rebut the prima facie case, and to argue that such a denial or affirmance, by itself, is sufficient to allow the court to grant the objection to the strike. Similarly in Paulino v. Castro, we stated, "[I]t does not matter that the prosecutor might have had good reasons to strike the prospective jurors. What matters is the real reasons they were stricken. The trial court did not pause to require an actual explanation from the prosecutor. . . ." 371 F.3d 1083, 1089-90 (9th Cir.2004). While this prohibits speculation, it should not be read as prohibiting the consideration of circumstantial evidence by the court when other circumstances, such as forgetfulness, prevent the proponent of the strike from coming forward with an explanation for the strike.	{ "pile_set_name": "FreeLaw" }
200 Va. 471 (1959) BOARD OF ZONING APPEALS OF TOWN OF ABINGDON, VIRGINIA v. FLORENCE V. COMBS. Record No. 4861. Supreme Court of Virginia. January 26, 1959. G. R. C. Stuart, for the appellant. Present, All the Justices. 1. The board of zoning appeals denied Mrs. Combs a permit to construct an apartment over a garage on a lot owned by her in a portion of the town of Abingdon zoned for general business. The grounds of the refusal were violations of set-back and space requirements in the zoning ordinance. She nevertheless proceeded with the construction and was later denied a permit for occupancy on the same grounds and because of her violation of the former ruling. On appeal from reversal of this decision of the board by the circuit court it was held that in the exercise of the power to grant variances each application must be determined upon its own peculiar facts and the board's discretion should be reasonably exercised to prevent exceptional or unusual hardship. 2. On the evidence before it the board was fully warranted in denying Mrs. Combs' application. The hearing on appeal from its decision, taken under Code 1950, section 15-825, was not a trial de novo in the strict sense of the term but one wherein the court should give due consideration to the board's discretionary power, the board's decision being presumed correct. The court should not substitute its discretion for that of the board. 3. The circuit court erred in reversing the action of the board. Any undue hardship on Mrs. Combs because of denial of the permit for occupancy was of her own making, and self-inflicted hardship affords no basis for special treatment. Appeal from a decree of the Circuit Court of Washington county. Hon. Thomas L. Hutton, judge presiding. The opinion states the case. Fred C. Parks and H. E. Widener, Jr. (Widener & Widener, on brief), for the appellee. MILLER MILLER, J., delivered the opinion of the court. Florence V. Combs, hereinafter called petitioner, is the owner of a rectangular lot of land on the northeast corner of Main and Deadmore streets in the town of Abingdon, Virginia. The lot fronts 60 feet on Main street, which runs in an easterly and westerly direction, and extends back northwardly along Deadmore street 170 feet to Plum alley, a cul-de-sac, which extends eastwardly 60 feet from Deadmore street and terminates at or near the northeast corner of the lot. This lot of 10,200 square feet is situate in what is designated in the zoning ordinances of the town as a General Business District. Article III, \|\| 17-8 and 17-5(e) of the ordinances require a minimum lot size of 6,000 square feet for a secondary dwelling. In a general business district the minimum set back from the street required by the zoning ordinances for each dwelling is 25 feet. When this controversy arose more than nine years ago, there were three buildings upon the lot; all of them still remain as then located. A combination residence and grocery store occupied by petitioner's family fronts on Main street and extends back 40 to 45 feet; a one-story, two-car garage, 20 by 24 feet, is located at the northwest corner of the lot with a set back of about 16 feet from Deadmore street and 6 or 7 feet from Plum alley, and a coal house 10 by 12 feet is on the northeast corner of the lot. On November 29, 1949, petitioner applied to the building inspector of the town for a permit to construct over the garage a second story residential apartment of four rooms with outside entrance and stairway. This contemplated structure, with egress and ingress to and from Deadmore street, constituted a secondary dwelling under the zoning ordinances and would have the same set back from Deadmore street as the garage over which it was to be constructed. Petitioner's application was denied upon the grounds of (a) insufficient space, and (b) insufficient set back distance. 473 Petitioner appealed to the board of zoning appeals from the inspector's denial of the building permit. The powers of the board under \|\| 7.241, 7.242, and 7.243 of the Town Charter, Acts 1950, ch. 425, p. 812, are similar to those bestowed on boards by \| 15-831, Code 1950. At a hearing held on December 12, 1949, her husband S. T. Combs, who appeared for her before the board, expressed a desire to build the garage apartment if the board would permit that to be done. The board, however, sustained the inspector's denial of the permit on the grounds assigned by him, and Combs was advised of petitioner's right of appeal to the circuit court within thirty days. Petitioner did not appeal but she continued to construct the apartment. The inspector observed the unauthorized construction while in progress and by letter of January 28, 1950, advised petitioner that erection of the apartment was in violation of the zoning ordinance. This warning went unheeded and the construction continued. Subsequently, a warrant was issued against petitioner for violation of the zoning ordinance to which she pleaded guilty, was convicted, and fined. Although petitioner had partially constructed the apartment without legal authorization, yet on June 11, 1951, she made written application to the inspector for a certificate of occupancy of the apartment for residential purposes. This application was likewise denied by the inspector because of insufficient area and insufficient set back. Again, petitioner appealed to the board, and at a hearing held on July 9, 1951, the board refused to grant her a certificate of occupancy. The reasons stated for its denial were "that there is insufficient area and insufficient set backs and a permit to build the apartment over the garage had been denied the applicant, and the apartment having been constructed without a permit and in violation of the Board's ruling, the Board is of the opinion that it should not grant a Certificate of Occupancy for the apartment which it had denied the applicant the right to construct, because of insufficient area and insufficient set-backs." Upon refusal of the certificate of occupancy, the board advised petitioner of her right of appeal to the circuit court, of which she availed herself but it was not until five years later that the matter was brought to a hearing before the court. During that time the unfinished apartment was used for storage. At the trial on August 1, 1956, in addition to the record before the board, the court heard the testimony of S. T. Combs and received 474 in evidence two letters from neighbors of petitioner withdrawing objections to petitioner's application to build and occupy the apartment. Apparently in an attempt to prove that the board's decision was discriminatory and unreasonable, Combs testified with respect to the location and character of three other buildings in the town. He called attention to a house fronting on Plum alley at the edge of a street approximately half a mile from petitioner's lot, but he did not give the lot size, set back of that house, or state whether or not a permit had been obtained for its erection; nor did he state when it was built. He also described a garage which he said had been built "in the middle of Plum alley" northeastwardly from petitioner's garage, but where the alley was not open to the public. This building was not designed for a dwelling, and he failed to state the time of its construction, size of the lot, set back, or whether a permit had been obtained for its erection. He then testified that there was a garage on property across Deadmore street from petitioner's lot but it appears that it contained no dwelling unit and no details were given as to the lot area, set back, or time of construction. Lastly, he said that the cost of petitioner's apartment building would be around $2,500 to $3,000 and that 2,000 had been spent since its construction began. Upon conclusion of the evidence the court reversed the decision of the board and decreed that petitioner was entitled to a certificate of occupancy. It is conceded that the town council, acting under its charter and the authority of \| 15-819, Code 1950, was empowered to enact and adopt a zoning ordinance and plan fixing the minimum lot sizes and set back requirements for building construction. It is also agreed that under \|\| 7.23, 7.24, and 7.25 of the town charter, Acts 1950, ch. 425, p. 776 (the provisions of which are similar to those in \| 15-831, Code 1950), the board is empowered to hear and decide appeals from the building inspector and to authorize in special cases variances from the zoning ordinances "not contrary to the public interest where owing to special conditions, a literal enforcement of the provisions of the ordinances will result in exceptional and peculiar hardship" so that the spirit of the ordinances "be observed and substantial justice done." The power bestowed upon the board of zoning appeals to grant a variance from a literal enforcement of the ordinance where exceptional 475 or peculiar hardship is imposed is in keeping with the power usually found in this character of legislation. "For the purposes of providing flexibility in the application of zoning regulations, of relieving against practical difficulties or unnecessary hardships in the way of their strict enforcement, and of protecting zoning regulations against attack on the ground of unreasonable interference with private rights, most zoning statutes and ordinances grant boards of appeal, review, or adjustment authority to vary the application of provisions thereof, in accordance with general or specific rules therein contained, and subject to appropriate conditions and safeguards. Such a provision should be given a reasonable interpretation. The provision, however, is for relief from the application of zoning regulations; it should not be so interpreted as to empower a zoning board to broaden or extend the regulations imposed so as to prevent the use of particular premises for a purpose or structure not prohibited thereby." 58 Am. Jur., Zoning, \| 196, p. 1046, 62 C.J.S., Municipal Corporations, \| 227(10). In the board's exercise of this authority to grant a variation from the zoning regulation as to a particular piece of property, each application facts and circumstances presented and upon the merits of the case. To effect the purpose of the ordinance in this respect, the board of zoning appeals is clothed with discretionary power, yet its discretion may not be arbitrarily exercised. It must act intelligently, fairly, and within the realm of reason. 58 Am. Jur., Zoning, \| 198; 62 C.J.S., Municipal Corporations, \| 227(11); 168 A.L.R. 106. Upon application of these principles to the evidence before the board, it is abundantly clear that it was warranted in denying the application. It is conceded by both litigants that \| 15-825, having been reenacted by Acts 1952, ch. 688, p. 1131, supersedes the somewhat similar provision of the town charter found in \|\| 7.26, 7.261, and 7.262, Acts 1950, ch. 425, p. 776. This is pointed out for \| 15-825 provides that upon appeal from the board's decision, the trial "shall be a trial de nove" [1], whereas no such provision is found in the town charter or in \| 15-850. Yet it should be observed that when this amendment of \| 15-825 was made in 1952, no specific legislation was enacted to repeal or amend \|\| 15-835, 476 15-836, or 15-837, Code 1950, which contemplate a review of the board's decision and provide the procedure in that respect. On appeal to the court under \| 15-850, applicable to counties, we have held that "there is a prima facie presumption that the power and discretion of the Board of Zoning Appeals have been properly exercised," and its decision may not be disturbed unless it "appear from the record transmitted to the court, together with any additional evidence taken and procedure had under the statute, that the decision of the Board is plainly wrong * * ." Hopkins, et al. O'Meara, et al., 197 Va. 202, 205, 89 S.E.2d 1. However, in the Hopkins case, in citing and referring to the decision in Anderson Jester, 206 Iowa 452, 221 N.W. 354, we said that the statute there involved "provided that upon the filing of a petition specifying grounds of illegality the trial court could allow a writ of certiorari and the hearing should be de novo, whereupon the method of procedure and decision was the same as provided in the Virginia statute. The court said that any arbitrary or unreasonable action, contrary to the terms or spirit of the zoning law, or contrary to or unsupported by facts, was an illegal action; but if on the facts the reasonableness of the board's action was open to fair difference of opinion, then there would be as to that no illegality." At page 205. The case of Burkhardt Board of Zoning Appeals, 192 Va. 606, 66 S.E.2d 565, was also cited in the Hopkins case, and it was pointed out that the Burkhardt decision involved a review under a section of the charter of the city of Richmond, which provided that "Unless it is made to appear that the decision is contrary to law or is arbitrary and constitutes an abuse of discretion the court shall affirm the decision." There the trial court, upon review of the Board's decision under that provision of the charter, found that the Board had acted neither contrary to law nor arbitrarily in abuse of its discretion, and we approved that rule of decision under the applicable charter provision. On appeal under \| 15-825, applicable to towns and cities, from the board's decision, we have held that the burden was upon the appellant to show to the satisfaction of the court that the action of the board was contrary to law. Wicker Apartments City of Richmond, 199 Va. 263, 99 S.E.2d 656. It was said in the Wicker Apartments case that the "trial court as was its duty, heard the case de novo." Yet it is apparent that the 477 decision in that case took into consideration the provisions of \|\| 15-835, 15-836, and 15-837, and did not consider these sections to have been repealed by implication by the 1952 amendment of \| 15-825. These sections provide for the trial court to consider the record made before the board and such other evidence as the court should deem necessary for the proper disposition of the matter, and reverse or affirm, in whole or in part, or "modify the decision brought up for" review." Emphasis added. It is also significant that these provisions of \|\| 15-835, 15-836, and 15-837, applicable to cities and towns, are also incorporated into \| 15-850, which is applicable to counties. When, as here, the appeal is under \| 15-825, and these three sections are taken into consideration, as they should be, it is evident that the trial before the court is not a de novo trial in the strict sense of the term but a trial wherein the court should give consideration to the fact that the board is empowered to exercise a reasonable discretion in determining whether or not a variance should be granted or denied." It thus appears that whether or not the appeal is from the zoning board of a city or town under \| 15-825 or from the zoning board of a county under \| 15-850, the rule of decision to be applied by the court is in reality the same. In either case the decision of the board is presumed to be correct, and the court should not substitute its discretion for that of the board. 1 Yokley, Zoning Law and Practice (2d ed.), \| 187, p. 480. The court may not disturb the board's decision unless it has applied erroneous principles of law or where the board's discretion is involved unless the evidence before the court proves to its satisfaction that the board's decision is plainly wrong and violative of the purpose and intent of the zoning ordinance. By application of these principles we must determine whether or not the circuit court, on the record and evidence before it, was justified in reversing the action of the board adnd decreeing that petitioner was "entitled to use for residential purposes the second story, or second floor of" the private garage building. Here the evidence discloses that if any hardship befell petitioner, it was self-imposed and due to her unreasonable continuation of the construction of the apartment after knowledge and warning of the likely consequences of her unlawful conduct. "The board should also keep before it the established rule that self-inflicted hardship, deliberately or ignorantly incurred, affords no *478 basis for special treatment under zoning regulations." Sherwood Realty Corp. Feriola, 193 Misc. 194, 197, 82 N.Y.S.2d 505. See 197 Misc. 77, 93 N.Y.S.2d 750, and 277 App.Div. 1049 for subsequent proceedings in this case. The additional evidence presented to the court in the testimony of S. T. Combs is of little moment. It fails to show that the board acted contrary to law, abused its discretion, or violated the purpose and intent of the zoning ordinance. It necessarily follows that the order appealed from must be reversed, and the resolution and decision of the board denying petitioner a certificate of occupancy reinstated, confirmed and made effective. Reversed and final judgment. NOTES [1] This provision was incorporated into \| 15-825 by Acts 1952, ch. 688, p. 1131.	{ "pile_set_name": "FreeLaw" }
7 F.3d 222 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Charles W. CURTIS, Plaintiff-Appellant,v.Archibald M. AIKEN, Jr., Circuit Court Judge for LoudounCounty; William T. Burch, Commonwealth Attorneyfor Loudoun County; Frederick W.Hoybach, Defendants-Appellees. No. 93-6727. United States Court of Appeals,Fourth Circuit. Submitted: August 17, 1993.Decided: September 21, 1993. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Charles W. Curtis, Appellant Pro Se. Archibald M. Aiken, Jr.; William T. Burch; Frederick W. Hoybach, WHITESTONE, BRENT, YOUNG & MERRILL, for Appellees. W.D.Va. AFFIRMED. Before NIEMEYER and WILLIAMS, Circuit Judges, and SPROUSE, Senior Circuit Judge. PER CURIAM: OPINION 1 Charles Wesley Curtis appeals from the district court's order denying relief under 42 U.S.C. § 1983 (1988). Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. Curtis v. Aiken, No. CA-93-477-R (W.D. Va. June 22, 1993). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.* AFFIRMED * This decision does not bar Curtis from raising his claim in a habeas corpus action once state remedies are exhausted	{ "pile_set_name": "FreeLaw" }
Pipe Creek Water Well, LLC and Robert Rae Fourth Court of Appeals San Antonio, Texas January 16, 2015 No. 04-14-00906-CV David MAUK, Appellant v. PIPE CREEK WATER WELL, LLC and Robert Rae Powell, Appellees From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2013-CI-00386 Honorable Richard Price, Judge Presiding ORDER On January 15, 2015, appellant filed a Motion to Stay Trial Court Proceedings. If appellees desire to file a response to the motion, they must do so no later than January 26, 2015. If appellees do not respond by January 26, 2015, this court will rule on appellant’s motion without benefit of a response. _________________________________ Sandee Bryan Marion, Chief Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 16th day of January, 2015. ___________________________________ Keith E. Hottle Clerk of Court	{ "pile_set_name": "FreeLaw" }
840 F.2d 11Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Gwendolyn P. MITCHELL, Plaintiff-Appellant,v.TOWSON STATE UNIVERSITY, Defendant-Appellee. No. 87-1738. United States Court of Appeals, Fourth Circuit. Submitted: Jan. 19, 1988.Decided: Feb. 9, 1988. Gwendolyn P. Mitchell, appellant pro se. Valerie Valenti Cloutier, Michael Anthony Anselmi, Office of the Attorney General of Maryland, for appellee. Before WIDENER and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge. PER CURIAM: 1 Gwendolyn Mitchell appeals the district court order which dismissed three of the four grounds raised in her complaint, denied her motion for appointment of counsel, denied her request for a jury trial and damages, and gave her 30 days to amend her complaint. We dismiss the appeal for lack of jurisdiction. 2 Under 28 U.S.C. Sec. 1291 this Court has jurisdiction over appeals from final orders. A final order is one which disposes of all issues in dispute as to all parties. It "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233 (1945). 3 As the order appealed from is not a final order, it is not appealable under 28 U.S.C. Sec. 1291. The district court has not directed entry of final judgment as to particular claims or parties under Fed.R.Civ.P. 54(b), nor is the order appealable under the provisions of 28 U.S.C. Sec. 1292. Finally, the order is not appealable as a collateral order under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). 4 Finding no basis for appellate jurisdiction, we dismiss the appeal as interlocutory. We dispense with oral argument because the dispositive issues have been decided authoritatively. 5 DISMISSED.	{ "pile_set_name": "FreeLaw" }
859 F.Supp. 1144 (1994) Jesse M. JONES, Plaintiff, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant. No. 94 C 483. United States District Court, N.D. Illinois, Eastern Division. July 7, 1994. 1145 Mary Louise Kandyba, for plaintiff. Edward H. MacCabe, MacCabe & McGuire, for defendant. MEMORANDUM OPINION AND ORDER SHADUR, Senior District Judge. On January 26, 1994 Jesse Jones ("Jones") brought this action against Illinois Central Railroad Company ("IC") under the Americans with Disabilities Act of 1990 ("ADA," 42 U.S.C. §§ 12101-12213), in which he charges employment discrimination stemming from IC's claimed refusal to accommodate his physical disability, a work-related shoulder injury. Since April 1993 Jones has had pending in the Circuit Court of Cook County (93 L 5879) a suit under the Federal Employers' Liability Act ("FELA," 45 U.S.C. §§ 51-60) arising out of the same accident that gave rise to Jones' disability. IC has responded to Jones' ADA claim by moving to dismiss, arguing that ADA does not override the exclusive remedial provisions established by the Railway Labor Act ("RLA," 45 U.S.C. §§ 151-163) to govern all minor disputes involving rail employees. In particular IC contends that Jones' FELA claim constitutes his only avenue of redress. At this point the motion is not only fully briefed, but this Court has in hand a lengthy and scholarly[1] draft opinion from its law clerk resolving the issues as posed by the parties. But just as the late Adlai Stevenson remarked ruefully after his initial loss to Dwight Eisenhower in 1952 that "something funny happened on the way to the White House," so something funny has happened to the current motion in terms not posed by the litigants. It is of course intuitively troublesome to contemplate the prospect that the parties should simultaneously do battle on two different fronts both in the state court under FELA and in this District Court under ADA on such closely related claims. And although the parties do not appear to have recognized it, the legitimacy of that intuitive unease is reflected in directly applicable provisions of law. To begin with, there is no reason that Jones could not have advanced his ADA claim before the same state court in which his FELA claim is pending. Enforcement of ADA's prohibitions against handicap discrimination expressly draws its sustenance from Title VII of the Civil Rights Act of 1964 as amended (42 U.S.C. §§ 2000e to 2000e-17) as ADA's 42 U.S.C. § 12117(a) specifies: The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies, and procedures this subchapter provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter, or regulations promulgated under section 12116 of this title, concerning employment. And in Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990) a unanimous Supreme Court has held that the state courts have concurrent jurisdiction with the federal courts for the adjudication of Title VII claims brought by employees under 42 U.S.C. § 2000e-5(f). That being so, it necessarily follows that the state courts have concurrent jurisdiction over ADA claims as well. To be sure, the existence of such concurrent jurisdiction does not alter the fact that ADA actions are federal-question cases. Hence there is no place for the possible application of 735 ILCS 5/2-619(a)(3) to require dismissal of this action because of the prior pendency of the FELA lawsuit, as there might be if this action were here via diversity jurisdiction (see Commonwealth Edison Co. v. Gulf Oil Corp., 541 F.2d 1263, 1271-72 (7th Cir.1976)) an issue that our 1146 Court of Appeals has not yet decided (Locke v. Bonello, 965 F.2d 534, 537 n. 2 (7th Cir. 1992)) and that continues to divide the district judges in this state.[2] Instead the question that calls for threshold examination is whether this case should be excepted "from the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them" (Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976)) whether this case should rather be dismissed under the teachings of Colorado River and its numerous progeny. Only a few moments' reflection is needed to understand why that prospect requires analysis. As in most FELA cases, the existence of Jones' claimed disability the inability to return to his former job means that the future loss of income will necessary bulk very large in Jones' FELA claim for damages in the Circuit Court. Indeed, except where an injury is sustained very near the end of an employee's expected working life, the deprivation of that future income stream (even when it is appropriately discounted to present value) typically dominates the damages calculation in FELA cases. On the obverse side of the same coin, an employer's willingness (or its forced decision) to put the employee back to work in a comparably compensated position would cut off those future damages, in precisely the same way that an employee's short-term injury with no residual effect on employability will necessarily generate only small damages (if any) that are attributable to the post-trial period. And if the employer is prepared to accommodate the job's demands to the employee's work-injury-triggered disability (or is required to do so under ADA), the same result would obtain.[3] Thus an ADA claim of the sort advanced by Jones here is closely linked to the FELA claim that for some reason he has chosen to assert in a different forum, even though he was free to bring that ADA claim in the same trial court where his FELA action was already pending. And it is in those terms that the potential application of the Colorado River doctrine must be evaluated. Colorado River, 424 U.S. at 817-18, 96 S.Ct. at 1246-47 contrasted the general approaches that should be taken to federal court abstention in two different types of situations: those involving state-federal concurrent jurisdiction and those involving wholly federal concurrent jurisdiction. It said in the former respect (id. at 818, 96 S.Ct. at 1247): Given this obligation [the "virtually unflagging obligation" referred to earlier in this opinion], and the absence of weightier considerations of constitutional adjudication and state-federal relations, the circumstances permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention. The former circumstances, though exceptional, do nevertheless exist. Nonetheless, after having set out the types of factors that a federal court should consider in assessing the appropriateness of dismissal in the state-federal concurrent-jurisdiction context 1147 (id.), Colorado River ultimately upheld the dismissal of the federal complaint. Our Court of Appeals has said on a number of occasions that if application of the Colorado River doctrine is in order at all, "a stay of the federal action is usually considered more appropriate than a dismissal" (Aetna Casualty and Sur. Co. v. Kerr-McGee Chem. Corp., 875 F.2d 1252, 1261 (7th Cir. 1989) and cases cited there). But that proposition is consistently announced in the more common context in which the issues in the two actions are identical, or so nearly so that economy for both courts and the litigants is best served by a stay by putting the federal case on a back burner until resolution of the state court case (a resolution that would almost invariably and inevitably moot all or substantially all aspects of the federal case). By sharp contrast, as already explained here, the issues in Jones' two cases are not identical, though they plainly have the close relationship that would trigger 735 ILCS 5/2-619(a)(3) if it were applicable here (see Quantum Chem. Corp. v. Hartford Steam Boiler Inspection & Ins. Co., 246 Ill. App.3d 557, 560, 186 Ill.Dec. 496, 498, 616 N.E.2d 686, 688 (3d Dist.1993)). More to the point, their close relationship similarly qualifies the two cases for potential Colorado River treatment, which requires only parallel and not identical suits (Caminiti & Iatarola, Ltd. v. Behnke Warehousing, Inc., 962 F.2d 698, 700 (7th Cir.1992) and cases cited there). Surely there is an important parallel, though not identity, in the two lawsuits involved here: Whatever resolution may be made of Jones' ADA claim in which he seeks to compel IC to accommodate his disability will critically affect the price tag on Jones' FELA action. Under those circumstances it would be wholly counterproductive, and hence frankly absurd, for this Court to exercise abstention in the form of staying this action while the FELA case plays out to its ultimate conclusion. So the question really comes down to whether or not Colorado River dismissal of this action is called for. Our Court of Appeals has outlined some substantial expansion of the four factors that were originally identified in Colorado River, 424 U.S. at 818, 96 S.Ct. at 1246-47 to be weighed in the balance an expansion based on post-Colorado River litigation before the Supreme Court and on Seventh Circuit case law as well (see Interstate Material Corp. v. City of Chicago, 847 F.2d 1285, 1288-89 (7th Cir.1988)). Many of those factors simply do not apply here at all, for the most part because of the difference between the present situation and the more typical situation that involves identical or virtually identical actions pending in the two jurisdictions. But in reviewing the factors that do matter, this Court has given careful heed to the mandate of Colorado River, 424 U.S. at 818-19, 96 S.Ct. at 1246-47 (citation omitted): No one factor is necessarily determinative; a carefully considered judgment taking into account both the obligation to exercise jurisdiction and the combination of factors counselling against that exercise is required. Only the clearest of justifications will warrant dismissal. As a result of that balancing process, it must be concluded that "reasons of wise judicial administration" (Colorado River, id. at 818, 96 S.Ct. at 1246-47) do indeed call for dismissal here. To begin with, what was true in Interstate Material, 847 F.2d at 1289 is true here as well: Two of the factors expressly listed in Colorado River apply to the circumstances of this case: (1) the desirability of avoiding piecemeal litigation and (2) the order in which jurisdiction was obtained by the concurrent forums. But what are perhaps most important to resolution of the current question are two other factors specifically referred to in Interstate Material, id., 847 F.2d at 1288 the presence of concurrent jurisdiction in the two courts (Will v. Calvert Fire Ins. Co., 437 U.S. 655, 666, 98 S.Ct. 2552, 2559, 57 L.Ed.2d 504 (1978)) and the complete adequacy of the state court action to protect Jones' rights by the simple device of adding the ADA claim to that action (Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 26-28, 103 S.Ct. 927, 942-43, 74 L.Ed.2d 765 (1983)) and, most significantly in terms of "wise judicial administration," the obvious 1148 need to integrate the two claims because of their mutual interdependence (something that two separate courts, which necessarily proceed in their own respective ways and at their own respective paces, obviously cannot do in anything even approaching the same way as a single court presiding over the totality of the claims). Accordingly this Court concludes (1) that this is indeed a prime candidate for the application of the Colorado River doctrine and (2) that the appropriate form for that application to take is obviously the dismissal and not the stay of this action. It should of course be emphasized that although this opinion has therefore not ruled on the substantive issue that was posed by IC's motion and on which the parties have clashed the argument that RLA and the FELA action itself bar Jones' effort to invoke ADA if that argument had been plainly right this Court would not be sending Jones on a wild goose chase to add that claim to the state court lawsuit. Finally, in light of Jones' need to take that step in the state court, this dismissal is accompanied by granting leave to Jones to move for reinstatement of this action on or before July 28, 1994.[4] Absent a timely motion for such reinstatement filed in this Court's chambers by that outside date, the order of dismissal will become final on July 29, 1994. Appendix As this opinion reflects (see text at n. 2), the status of 735 ILCS 5/2-619(a)(3) ("Section 2-619(a)(3)") as the predicate for dismissal of diversity-of-citizenship lawsuits based on the pendency of prior state court litigation is not yet settled in this Circuit. Just a brief skeletal exposition of that subject, though outside the scope of this action, may be in order here. All of the litigation on that score in District Courts in Illinois and in our Court of Appeals stems from the decision by Honorable Hubert Will issued over a quarter century ago in Seaboard Fin. Co. v. Davis, 276 F.Supp. 507, 516 (N.D.Ill.1967). Since the Supreme Court decided Colorado River nearly a decade after Seaboard, Illinois District Judges have come down on both sides of the Section 2-619(a)(3) issue (with the most recent published opinion being the one issued by this Court's colleague Honorable John Nordberg in Fofi Hotel Co. v. Davfra Corp., 846 F.Supp. 1345 (N.D.Ill.1994)). Judge Nordberg's analysis and conclusion there differ from the analysis and conclusions reached by a number of this Court's other colleagues (who are cited in part in Fofi Hotel), as well as from the position of this Court (see, e.g., General Elec. Co. v. Lofton, 675 F.Supp. 1107 (N.D.Ill.1987)). In this Court's view, perhaps the most significant development in this area is the fact that our Court of Appeals' opinion in Locke v. Bonello, 965 F.2d 534 (7th Cir. 1992) even while it reserved the question of the applicability of the Illinois statute in diversity cases, id. at 537 n. 2 has expressly found Judge Will's reasoning in Seaboard to be "persuasive" (id. at 536) and has actually "adopted" that reasoning (id. at 538). Locke, id., 965 F.2d at 538 n. 3 has also disclaimed any notion that Colorado River "necessarily requires federal courts to disregard Section 2-619(a)(3)." Although Fofi Hotel, 846 F.Supp. at 1348-49 has discounted the relevance of Locke in its resolution of the issue, this Court would divine the Locke opinion's entrails quite differently. That question, however, is for another day. NOTES [1] Unfortunately those two characteristics do not always coincide, but in this case they do. [2] See Appendix. [3] This is not at all a hypothetical scenario. In August 1993 this Court conducted an FELA trial in which the injured employee an electrician doing heavy work on railroad engines and other railroad cars and equipment suffered a severe back injury, in consequence of which the employee claimed a permanent disability that prevented him not only from working at the electrician's job but also from engaging in any other gainful employment. On the eve of trial the railroad offered to return the employee to work at the same pay scale in an adapted electrician's position, thus utilizing his skills but without burdening him with any substantial physical demands. Consistently with the employee's testimony and that of his medical expert about the employee's physical limitations, the employee refused the job. At trial, the battle of the other experts the parties' respective economists presented an enormous disparity between their damage calculations, respectively reflecting the inclusion and exclusion of many future years of lost income. Although the specifics of that case may have been somewhat unusual (with the employer having voluntarily undertaken the equivalent of an ADA-mandated obligation in an effort to minimize the employee's damages claim, rather than being forced to do so through litigation), it graphically illustrates the interrelationship between an FELA claim and ADA's accommodation obligation (or the lack of one) in a situation such as Jones'. [4] This precautionary measure is taken to allow for what would appear to be an unlikely contingency the Circuit Court's refusal to permit an appropriate amendment to the FELA complaint. This Court is of course well aware that 735 ILCS 5/2-616 contains provisions very much along the lines of Fed.R.Civ.P. 15(a) and 15(c), under which amendments that add claims to existing complaints are liberally allowed and are protected against limitations problems by a relation-back doctrine. Though this Court does not of course mean to imply any intrusion upon the Circuit Court's discretion in that respect, it seems fair to anticipate that such an amendment would likely be allowed.	{ "pile_set_name": "FreeLaw" }
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED November 26, 2013 In Re: J.A., J.S.-1, & J.S.-2 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA No. 13-0704 (Kanawha County 11-JA-235 through 11-JA-241) MEMORANDUM DECISION Petitioner Mother, by counsel Edward L. Bullman, appeals the Circuit Court of Kanawha County’s June 13, 2013 order terminating her parental rights to J.A., J.S.-1, and J.S.-2.1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Michael L. Jackson, filed its response in support of the circuit court’s order. The guardian ad litem, W. Jesse Forbes, filed a response on behalf of the children supporting the circuit court’s order. Respondent J.S., the biological father of J.S.-2, has also filed a response supporting the circuit court’s order, by counsel Sharon K. Childers. On appeal, petitioner alleges that the circuit court erred by: (1) finding clear and convincing evidence of abuse and neglect; (2) allowing the introduction into evidence recordings of the children’s forensic interviews; (3) making general findings of abuse and neglect; (4) failing to dismiss the petition and remand the matter to family court; and (5) terminating her parental rights. This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure. In December of 2011, the DHHR filed its initial abuse and neglect petition against petitioner. At the time, petitioner resided with her then-boyfriend, J.V. According to the initial petition, none of petitioner’s children lived in the home at the time. Two children, J.S.-1 and J.S. 2, lived with their fathers while a third child, J.A., resided with her maternal grandmother. Petitioner was previously the subject of multiple Child Protective Services (“CPS”) investigations that did not result in the filing of petitions, though J.A. did state that petitioner physically abused the children for having previously spoken to CPS. According to the petition, one father had witnessed petitioner pulling J.A.’s hair and hitting her in the face, and J.A. once overheard J.V. 1 Because two children share the same initials, they will be referred to as J.S.-1 and J.S.-2 throughout this memorandum decision. Additionally, other children that are not petitioner’s biological children were involved in the abuse and neglect proceedings below. Petitioner raises no argument in regard to these children, therefore, the Court will address only the circuit court’s rulings in regard to J.A., J.S.-1, and J.S.-2. 1 say he was going to obtain a gun and shoot petitioner. Additionally, one of the boyfriend’s children, K.V., witnessed petitioner put her hand over J.A.’s mouth to the point the child could not breathe. As to the other children, it was alleged that J.S.-2 resided with his father after he was granted full custody pursuant to a family court order because of petitioner’s medical neglect and J.V.’s physical abuse. J.S.-1 lived with his father after he was awarded full custody due to petitioner’s homelessness. At the time, petitioner had unsupervised visitation with J.S.-1 on weekends. It was alleged that during visitation, the child witnessed abuse to J.V.’s children and domestic violence between petitioner and J.V., including an incident in which J.V. broke a telephone over petitioner’s arm and she had to flee with the children to a motel. The petition further alleged that petitioner failed to provide the children with necessary food, clothing, supervision, and housing, and that she failed to provide financial support, thereby placing the children at risk for harm. On December 15, 2011, the circuit court held a preliminary hearing and found probable cause existed to support the allegations in the petition. Prior to adjudication, the DHHR performed forensic evaluations with petitioner’s daughter, J.A., as well as three of J.V.’s children. The circuit court then held an adjudicatory hearing on June 26, 2012, having previously continued an adjudicatory hearing from April of 2012. During the adjudicatory hearings the circuit court heard testimony from a CPS worker and the individual that performed the forensic evaluation of the children. The circuit court also accepted recordings of the forensic interviews into evidence. Additionally, testimony was provided by both petitioner and J.V., as well as K.S., the adult daughter of one of petitioner’s prior husbands. In March of 2013, the circuit court held a dispositional hearing and heard additional testimony from Dr. Timothy Saar who had performed petitioner’s psychological evaluation. Further, a CPS worker testified that there were no services that could be offered to correct the conditions of abuse or neglect. At the conclusion of the hearing, the circuit court terminated petitioner’s parental rights. Petitioner appeals to this Court. The Court has previously established the following standard of review: “Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abuse and neglect case, is tried upon the facts without a jury, the circuit court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected. These findings shall not be set aside by a reviewing court unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. However, a reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the circuit court’s 2 account of the evidence is plausible in light of the record viewed in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996). Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, the Court finds that the circuit court did not err in finding that the children were abused and neglected. Two of petitioner’s assignments of error concern these findings and will be addressed together. Petitioner alleges that the circuit court erred in finding that clear and convincing evidence existed to support the findings of abuse and neglect and that the circuit court’s findings on this issue lacked the requisite specificity. We have previously held that “W.Va.Code[§] 49–6–2(c) [1980], requires the State Department of Welfare [now the Department of Health and Human Resources], in a child abuse or neglect case, to prove ‘conditions existing at the time of the filing of the petition . . . by clear and convincing proof.’ The statute, however, does not specify any particular manner or mode of testimony or evidence by which the State Department of Welfare is obligated to meet this burden.” Syllabus Point 1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981). Syl. Pt. 3, In re Randy H., 220 W.Va. 122, 640 S.E.2d 185 (2006). We find no error in regard to the circuit court’s findings of abuse and neglect. While petitioner argues that the evidence was insufficient to support the circuit court’s findings of abuse and neglect because the evidence below was conflicting and inconsistent, we disagree. Specifically, K.S. testified that she had previously witnessed petitioner strike J.A. and J.S.-1 in their faces, including an incident during which J.A.’s nose and mouth were injured and bleeding. Additionally, during their forensic interviews, the children disclosed physical abuse by petitioner, including being kicked and punched. Further, the children stated that petitioner and J.V. threatened to harm them if they disclosed the abuse. We have previously held that “[a] reviewing court cannot assess witness credibility through a record. The trier of fact is uniquely situated to make such determinations and this Court is not in a position to, and will not, second guess such determinations.” Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997). As such, we note that the circuit court was in the best position to weigh witness credibility, and we find no error in the findings of abuse and neglect to the children at issue. While it is true that the circuit court’s adjudicatory order did not specifically identify what conduct constituted abuse and neglect, we decline to grant petitioner relief in this regard because of the overwhelming evidence supporting the circuit court’s finding of abuse and neglect. This includes the specific evidence that petitioner physical abused the children at issue. As to petitioner’s assignment of error regarding the admission of the children’s forensic interviews into evidence, the Court declines to address this argument. Petitioner urges this Court 3 to re-examine its prior holdings related to the admissibility of statements from children made to therapists in connection with abuse, arguing that the statements given in the forensic interviews below were made purely for investigatory purposes. See Syl. Pt. 4, Misty D.G. v. Rodney L.F., 221 W.Va. 144, 650 S.E.2d 243 (2007). Upon our review, we decline to address this assignment of error because the record is clear that it was petitioner’s counsel who submitted the recorded interviews for submission into evidence. “‘In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which were not considered and decided by the court from which the appeal has been taken.’ Syllabus Point 1, Mowery v. Hitt, 155 W.Va. 103, 181 S.E.2d 334 (1971).” Syl. Pt. 1, Wang-Yu Lin v. Shin Yi Lin, 224 W.Va. 620, 687 S.E.2d 403 (2009). Because petitioner failed to object to the introduction of these recorded interviews below, and, in fact, submitted the same for admission, the Court declines to address this assignment of error. Petitioner asserts two assignments of error in regard to the termination of her parental rights, and the Court will address them together as each assignment of error asserts that the circuit court erred in failing to impose a less restrictive alternative at disposition. According to petitioner, instead of terminating her parental rights to all of the children, the circuit court could have granted an improvement period and ordered family counseling in order to address the issues of abuse and neglect. Alternatively, petitioner argues that the circuit court should have dismissed the proceedings against her as to J.S.-1 and J.S.-2 because the children had been returned to the legal custody of their respective fathers. According to petitioner, this would have allowed her to later petition the family court for modification of her parental rights upon a change in circumstances. The Court, however, finds no error in the circuit court’s termination of petitioner’s parental rights because there was no reasonable likelihood that petitioner could substantially correct the conditions of abuse or neglect in the near future and termination was necessary for the children’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are instructed to terminate parental rights upon these findings. As set forth in West Virginia Code § 49-6-5(b)(3), there is no reasonable likelihood that a parent can substantially correct the conditions of abuse and neglect in the near future when the parent has failed to follow through with a family case plan or other rehabilitative efforts designed to reduce or prevent abuse. In this matter, the circuit court specifically found that petitioner had “accepted no responsibility for what has happened to [her] children, and [has] shown no inclination to correct the conditions and behaviors that led to the filing of the [p]etition in this matter . . . .” The record is clear that petitioner failed to acknowledge the underlying conditions of abuse and neglect, and on appeal she admits that she was unwilling to admit to the same. In fact, petitioner’s argument on this issue is couched in terms of credibility and she argues that she could not acknowledge the abuse and neglect because the “allegations were not internally consistent with each declarant or between declarants.” Having already determined that the evidence was sufficient to support the circuit court’s adjudication of the children as abused and neglected, the Court finds no merit in petitioner’s argument on this point. The record is clear that petitioner physically abused the children and she 4 failed to acknowledge her role in the abuse during the proceedings below. We have previously held that “in order to remedy the abuse and/or neglect problem, the problem must first be acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator of said abuse and neglect, results in making the problem untreatable and in making an improvement period an exercise in futility at the child’s expense.” West Virginia Dept. of Health and Human Resources v. Doris S., 197 W.Va. 489, 498, 475 S.E.2d 865, 874 (1996). In re Kaitlyn P., 225 W.Va. 123, 126, 690 S.E.2d 131, 134 (2010). As such, we find no error in the circuit court’s decision to proceed to termination of parental rights without offering petitioner an improvement period or additional services. Petitioner argues that the circuit court’s finding that there was no reasonable likelihood that the conditions of abuse or neglect could be substantially corrected was not supported with specific evidence. However, the order being appealed clearly provides sufficient support for the finding, including petitioner’s failure to acknowledge the conditions of abuse and neglect and her refusal to participate in services to rectify the conditions of abuse and neglect. Further, the Court finds no merit in petitioner’s argument that West Virginia Code § 49-6-5(b)(1) does not provide for termination of parental rights when a child has been placed with a relative. West Virginia Code § 49-6-5B lists circumstances in which the DHHR is statutorily required to file or join in an abuse and neglect petition, and § 49-6-5B(b)(1) notes an exception that the DHHR may elect to not file a petition when the child has been placed with a relative. That code section does not prevent circuit courts from terminating parental rights when children have been placed with a relative. As noted above, West Virginia Code § 49-6-5(a)(6) instructs circuit courts to terminate parental rights upon findings that there is no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected and when termination is necessary for the child’s welfare. Those findings were made below and supported with substantial evidence, and the Court finds no error in the termination of petitioner’s parental rights. For the foregoing reasons, we find no error in the decision of the circuit court and its June 13, 2013 order is hereby affirmed. Affirmed. ISSUED: November 26, 2013 CONCURRED IN BY: Chief Justice Brent D. Benjamin Justice Robin Jean Davis Justice Margaret L. Workman Justice Menis E. Ketchum Justice Allen H. Loughry II 5	{ "pile_set_name": "FreeLaw" }
838 F.2d 1207 Momentum Service Corporationv.Maintenance Plus, Inc., Cleary (Michael F.), Data Dynamics,Inc., Crawford (Michael), Citro (Bernard),Venturini (Joseph E.) NO. 87-5565 United States Court of Appeals,Third Circuit. JAN 28, 1988 Appeal From: D.N.J., Debevoise, J. 1 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
13 F.3d 704 62 USLW 2484, 17 Employee Benefits Cas. 1923 Dorothy E. TRAVITZ, Appellant,v.NORTHEAST DEPARTMENT ILGWU HEALTH AND WELFARE FUND; ILGWUEastern States Health and Welfare Fund. Nos. 93-7277, 93-7334 and 93-7383. United States Court of Appeals,Third Circuit. Argued Nov. 8, 1993.Decided Jan. 10, 1994. David S. Wisneski, (argued), Angino & Rovner, Harrisburg, PA, for appellant. Charles W. Johnston, Jr., (argued), Handler, Gerber, Johnston & Aronson, Camp Hill, PA, for appellees. Before: GREENBERG, COWEN, and ROSENN, Circuit Judges.OPINION OF THE COURT ROSENN, Circuit Judge. 1 Pennsylvania enacted the Motor Vehicle Financial Responsibility Law (the Act), of which Sec. 1722 precludes a person from recovering damages arising out of the use of a motor vehicle from a culpable tortfeasor if the claimant is otherwise eligible to receive those benefits from any program, group contract, or other arrangement, as defined by the Act. 75 Pa. Cons.Stat.Ann. Sec. 1722 (Supp.1993). The primary issue raised on this appeal is whether the Act is preempted by the Employee Retirement Income Security Act of 1974, (ERISA), 29 U.S.C. Sec. 1001 et seq. The district court, on cross-motions for summary judgment, answering in the affirmative, entered judgment in favor of the defendants, 818 F.Supp. 761. We affirm.1 I. 2 Appellees, the Northeast Department, ILGWU Health and Welfare Fund and its successor in interest, the ILGWU Eastern States Health and Welfare Fund (the Fund), operate a multi-state, multi-employer health and welfare plan within the meaning of ERISA, 29 U.S.C. Sec. 1002(1).2 The Fund, which is self-insured, is governed by a basic plan and rules of the Northeast Department, ILGWU. In addition, the Fund is also operated and maintained pursuant to rules set forth in a written document, the Summary Plan Description (collectively, the Plan). The Plan provides medical, disability, and preventative health care benefits to employees of contributing union employers and the Fund remains solely responsible for the payment of such benefits. The Plan further provides various exclusions with respect to benefits it offers. Exclusion 5 sets forth that members of the program "can not receive benefits/coverage for a condition if the costs of treating that condition are recoverable through legal action or claim settlement from another party or insurance company." 3 Appellant, Dorothy E. Travitz, an employee of BR Apparel, Inc., a member of the International Ladies' Garment Workers' Union (ILGWU), and a participant in the union's health and welfare program, sustained serious injuries in a motor vehicle accident on October 18, 1990. As a result, she incurred medical bills exceeding $65,000. She received $10,000 in first party medical benefits under her motor vehicle insurance policy. After exhausting those benefits, she submitted for payment numerous claims relating to treatment and services for her injuries to the providers of the union's benefit program, the Fund. The Fund, pursuant to its Advance of Benefits Provision,3 paid a total of $2,924.78 of medical benefits to Travitz. In accordance with this provision, the Fund also sought assurances from Travitz that she would eventually repay the amounts received as advances and requested that she sign an assignment of claim form. Travitz refused to provide those assurances and did not execute the form. The Fund, therefore, ceased advancing benefits to Travitz. 4 Travitz also filed a claim against the tortfeasor alleging negligence in the operation of a motor vehicle. Eventually, the claim was settled. The agreement provided that in exchange for a release from liability, Travitz would receive $125,000 in immediate cash, four guaranteed scheduled payments ranging from $10,000 to $30,000, plus $1,030 per month for life with fifteen years guaranteed. 5 Subsequently, Travitz initiated suit against the Fund in the United States District Court for the Middle District of Pennsylvania seeking payment by the Fund of the outstanding medical benefits claimed to be due her, costs, and bad faith damages. In her complaint, she alleged that the Fund improperly relied upon coverage Exclusion 5 to deny her these medical benefits in the face of the Act's provision that precluded the recovery of medical expenses from a tortfeasor when they were payable under the medical benefit program she had with the Fund.4 6 In effect, she claimed that the medical benefits were recoverable only from the Fund regardless of the coverage exclusion of the Plan because the Act precluded her from recovering them from the tortfeasor. Section 1722 provides: 7 In any action for damages against a tortfeasor ... arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverages set forth in ... any program, group contract or other arrangement for payment of benefits as defined in section 1719 (relating to coordination of benefits) shall be precluded from recovering the amount of benefits paid or payable under ... any program, group contract or other arrangement for payment of benefits as defined in section 1719. 8 75 Pa. Cons.Stat.Ann. Sec. 1722 (Supp.1993). The Fund argued, however, that Exclusion 5 of their Plan is applicable and therefore its medical benefits were unavailable to Travitz. Accordingly, the Fund contended that her only recourse was to pursue the tortfeasor. In addition, the Fund counterclaimed for reimbursement of payments totaling $2,924.78 advanced to Travitz. 9 Chief Judge Rambo of the district court, on cross-motions for summary judgment, held that the Fund is a multi-employer health and welfare plan within the meaning of ERISA, and that Sec. 1722 of the Pennsylvania Act is preempted by the self-insured ERISA benefit plan. Consistent with her opinion, the court found for the Fund on its counterclaim and ordered that Travitz reimburse it the $2,924.78 advanced along with prejudgment interest. Travitz appealed. II. 10 The issue of preemption is essentially legal and our review of the district court's summary judgment holding is therefore plenary. See Wheeler v. Towanda Area School Dist., 950 F.2d 128, 129 (3d Cir.1991). On appeal we apply the same test the district court should have used in the first instance. See Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). We therefore affirm only if there are no genuine issues of material fact and the relevant law entitles the moving party to judgment. 11 Travitz's arguments on appeal are legal in nature. She basically argues two principal points which seem to be intertwined. First, although section 1722 "relates to" employee welfare plans, it lacks a "connection with" such plans and falls within the "remote and peripheral" exception to ERISA preemption. Second, that the supposed conflict between Section 1722 and Exclusion 5 of the Plan is essentially an issue of interpretation rather than one of preemption, and should be interpreted in a manner consistent with the Fund's requirements. In effect, she claims that Exclusion 5 cannot be used to deny her medical benefits from the Fund because her recovery from the tortfeasor did not encompass those benefits; rather they were limited to pain and suffering only. Therefore, she argues, the Fund must reimburse her for those presently unrecovered expenses. 12 We turn first to three ERISA statutory provisions dealing with the question of preemption. These provisions in Section 1144 of ERISA state in relevant part:Except as provided in subsection (b) of this section [the saving clause], the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.... 13 29 U.S.C. Sec. 1144(a) (1988) (preemption clause) 14 Except as provided in subparagraph (B) [the deemer clause], nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities. Id. Sec. 1144(b)(2)(A) (saving clause) 15 Neither an employee benefit plan ... nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contract, banks, trust companies, or investment companies. Id. Sec. 1144(b)(2)(B) (deemer clause) 16 As the Supreme Court has explained, the broadly worded preemption clause "establishes as an area of exclusive federal concern the subject of every state law that 'relate[s] to' an employee benefit plan governed by ERISA." FMC Corp. v. Holliday, 498 U.S. 52, 58, 111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990). The saving clause expressly reserves to the states the power to regulate insurance; the deemer clause, however, precludes a state from regulating an employee benefit plan governed by ERISA in the guise of regulating insurance companies. See id. 17 Our first inquiry, under these provisions, is whether Section 1722 "relate[s] to" an employee benefit plan. A law relates to an employee welfare plan if it has "a connection with or reference to such a plan." Shaw v. Delta Air Lines Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983). Section 1722, which precludes the recovery of benefits from a tortfeasor where a person is eligible to receive those benefits under another program, group contract or arrangement, as defined in Section 1719, has "reference" to benefit plans governed by ERISA. See FMC, 498 U.S. at 59, 111 S.Ct. at 408. Section 1719(b) of the Act states that "the term 'program, group contract or other arrangement' includes, but is not limited to, benefits payable by a hospital plan corporation or a professional health service corporation." 75 Pa. Cons.Stat.Ann. Sec. 1719(b) (Supp.1993). 18 In addition, Section 1722 has a "connection" to ERISA benefit plans. The Court has held that state laws have a "connection" to an ERISA plan when the laws risk subjecting plan administrators to conflicting state regulations. See FMC, 498 U.S. at 59, 111 S.Ct. at 408. Section 1722 has that very effect. In states with a provision like Section 1722, the Fund, rather than a tortfeasor, would be primarily liable. Therefore, in structuring its program, a health and welfare benefit plan would have to consider its ultimate liability and adjust the level of benefits accordingly. Thus, plan administrators would be unable "to calculate uniform benefit levels nationwide." Id. at 60, 111 S.Ct. at 409. To ensure that ERISA would be governed by a "uniform administrative scheme, which [would] provide[ ] a set of standard procedures to guide processing of claims and disbursement of benefits," Congress preempted state laws "connected" to ERISA. Id. (quoting Fort Halifax Packing Co. Inc. v. Coyne, 482 U.S. 1, 9, 107 S.Ct. 2211, 2216, 96 L.Ed.2d 1 (1987)). 19 Travitz's contention that Section 1722's effect on ERISA plans is "too tenuous, remote, or peripheral ... to warrant a finding that the law 'relates to' the plan," Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21, is unavailing. Several factors have been examined in analyzing whether a state law falls within the "remote and peripheral" exception to Sec. 1144. Those factors include: (1) whether the state law represents a traditional exercise of state authority; (2) whether the state law affects relations among the principal ERISA entities--the employer, the plan, the plan fiduciaries, and the beneficiaries--rather than relations between one of these entities and an outside party, or between two outside parties with only an incidental effect on the plan; and (3) whether the effect of the state law upon the ERISA plan is direct or merely incidental. Firestone Tire & Rubber Co. v. Neusser, 810 F.2d 550, 555-56 (6th Cir.1987). 20 Application of the foregoing factors compels the conclusion that Section 1722 is preempted by ERISA. Although, in specifying the damages that may be recovered from a tortfeasor, Section 1722 arguably represents a traditional exercise of state power, the remaining factors referred to above clearly tilt the balance against Travitz. Section 1722, by shifting ultimate liability for medical and health care benefits to the ERISA Fund, has a direct and possibly devastating effect on it. That effect implicates the relations between the principal parties--the Fund and its beneficiaries--by requiring the Fund to pay Travitz's medical benefits and by making less overall benefits available to the other beneficiaries of the Fund. Thus, the exception set forth in Shaw is not applicable and, unless saved by another ERISA provision, Section 1722 will be preempted. 21 Arguably, Section 1722 falls within the purview of the saving clause which specifically reserves the regulation of insurance to the states. Although, on its face, the statute does not seem to be regulating insurance, it is part of a broad-based law which not only has an impact on insurance companies but is also specifically directed towards that industry. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 50, 107 S.Ct. 1549, 1554, 95 L.Ed.2d 39 (1987). The deemer clause, however, would proscribe a state from regulating self-insured ERISA plans. The clause provides that states are forbidden to deem ERISA plans "to be an insurance company or other insurer." 29 U.S.C. Sec. 1144(b)(2)(B). Therefore, even if a state law is saved because it regulates insurance it has no effect on self-insured ERISA plans by virtue of the deemer clause. See FMC, 498 U.S. at 61, 111 S.Ct. at 409. 22 Thus, we hold that Section 1722 of the Pennsylvania Motor Vehicle Financial Responsibility Law or any state statute that attempts to shift liability for medical and health care benefits to a plan, group contract, or other arrangement operating within the meaning of ERISA is preempted by it.5 23 Travitz persists in arguing, however, that notwithstanding its preemption, Section 1722 should still be interpreted to apply because it can be read as consistent with the exclusions in the Fund's Plan. Travitz is mistaken. The Court has held that preemption is not precluded "simply because a state law is consistent with ERISA's substantive requirements." Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139, 111 S.Ct. 478, 483, 112 L.Ed.2d 474 (1990) (citing Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739, 105 S.Ct. 2380, 2388, 85 L.Ed.2d 728 (1985)). Moreover, Section 1722 and Exclusion 5 of the Fund's Plan are in no way consistent. Each attempts to shift the responsibility for the payment of benefits from itself to another source. 24 It is ironic that in her attempt to construe the provisions as consistent with each other, Travitz is endeavoring to circumvent the purpose of both provisions. By arguing that she could not have received medical benefits from her settlement with the tortfeasor because of Section 1722's restriction, she is seeking to recover twice for the same injury. Her classification of the settlement as one for pain and suffering rather than for medical benefits is disingenuous, in the face of the language of the settlement agreement she executed which provides a discharge for "all claims," including those for "personal injuries." Travitz's characterization of the settlement award underscores the need to have but one authority dealing with benefits. Provisions enacted pursuant to ERISA would thus govern and Section 1722 of the Pennsylvania Act must therefore be preempted with respect to the Fund's self-insured ERISA plan. Accordingly, as Section 1722 is preempted it cannot and could not have prevented Travitz from recovering medical benefits from the tortfeasor. Consequently, under the plain terms of Exclusion 5 which is controlling, the Fund is not responsible for the medical benefits because they were recoverable from the tortfeasor. 25 In her statement of the issues presented for review, Travitz also asserts that the district court erred in granting summary judgment in favor of the Fund with respect to its counterclaim for the $2,924.78 advanced to her, along with prejudgment interest. Under Fed.R.App.P. 28(a)(5), an appellant is required to list the issues raised on appeal and present an argument in support of them. Simmons v. City of Philadelphia, 947 F.2d 1042, 1065 (3d Cir.1991) ("absent extraordinary circumstances, briefs must contain statements of all issues presented for appeal, together with supporting arguments and citations."), cert. denied, --- U.S. ----, 112 S.Ct. 1671, 118 L.Ed.2d 391 (1992). When an issue is not pursued in the argument section of the brief, the appellant has abandoned and waived that issue on appeal. Nagle v. Alspach, 8 F.3d 141 (3d Cir.1993); Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993); Institute for Scientific Info., Inc. v. Gordon & Breach, Science Publishers, Inc., 931 F.2d 1002, 1011 (3d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 302, 116 L.Ed.2d 245 (1991); 16 Charles A. Wright, et al., Federal Practice and Procedure Sec. 3974, at 421 (1977 & Supp.1993, at 690) (issue must be raised in both the issues and argument sections of the brief). 26 In the present case, Travitz completely fails to articulate or pursue these issues. Neither does she attempt to argue extraordinary circumstances which might excuse her failure to argue them. We therefore conclude that Travitz has abandoned and waived these issues and we refuse to address them. 27 Accordingly, the judgment of the district court will be affirmed. Costs taxed to the appellant. 1 The district court exercised subject matter jurisdiction pursuant to 29 U.S.C. Sec. 1001 et seq. as the action constituted a suit under 29 U.S.C. Sec. 1132(a)(1)(B) to recover benefits due under a covered plan, and pursuant to 28 U.S.C. Sec. 1331(a) as the counterclaim arose under federal common law. We have jurisdiction under 28 U.S.C. Sec. 1291 2 Effective January 1, 1990, the Northeast Department ILGWU Health and Welfare Fund merged into the ILGWU Eastern States Health and Welfare Fund, which is the surviving plan of the merger. The Fund is now known as the ILGWU Eastern States Health and Welfare Fund 3 The provision provides, in pertinent part: If you have a right to recover payment for an injury or illness from another source, there may be delays because of the time it takes to process the claim or because of lawsuits. If this happens, the Fund may be able to help you temporarily by paying benefits in advance. If this is done you must sign a legal document stating that the Fund will be repaid in full, from any settlement you receive. The Fund must be repaid to the Full Extent ... of the benefits it provided.... (Emphasis in original). 4 Travitz characterizes the settlement she received from the tortfeasor as one for pain and suffering. The Fund does not provide benefits for pain and suffering and thus, in accordance with her interpretation, Section 1722 did not preclude the recovery of those benefits from the tortfeasor 5 Although United Wire, Etc. v. Morristown Memorial Hospital, 995 F.2d 1179 (3d Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 382, 126 L.Ed.2d 332 (1993), not cited by any of the parties, reached a contrary result in construing a New Jersey statute pertaining to hospital rates, the case is inapposite on its facts. Unlike the case sub judice, the state law in United Wire did "not have either the effect of dictating or restricting the manner in which ERISA plans structure or conduct their affairs or the effect of impairing their ability to operate simultaneously in more than one state." Id	{ "pile_set_name": "FreeLaw" }
43 F.Supp.2d 571 (1999) Kenneth M. LEMONS, Plaintiff, v. US AIR GROUP, INC., et al., Defendants. No. 6:97CV00097. United States District Court, M.D. North Carolina. January 19, 1999. 572 Kenneth M. Lemons, Winston-Salem, NC, pro se. Robert Rand Tucker, Kilpatrick Stockton, L.L.P., Winston-Salem, NC, for defendants. MEMORANDUM OPINION BEATY, District Judge. I. INTRODUCTION This matter is before the Court on Defendants US Air Group, Inc. ("US Air"), John Elrod, Lonnie Harrigal, Rena Hamrick, Donna Beck, Jimmy Speas, Judi 573 Brydges, Marty Havens, L.R. Welch, Joyce Greene, Darryl Wiles, and Todd Haywood's[1] Motion to Dismiss Plaintiff's Amended Complaint [Document # 22]. Plaintiff Kenneth M. Lemons ("Lemons") has filed a memorandum in opposition to the motion [Document #25].[2] For the reasons stated herein, Defendants' motion is granted. II. FACTUAL BACKGROUND[3] In 1985, Lemons was hired by Piedmont Airlines to work as a reservations agent. (Am.Compl.¶ 8.) In 1989, US Air purchased Piedmont Airlines, and Lemons remained employed in the same position. (Id.) This action arises out of the termination of Lemons's employment with US Air, which occurred on November 18, 1994. (Id.) A summary of the events leading up to Lemons's termination is as follows. According to Lemons, he was first formally disciplined when a fellow employee complained that Lemons had called her "biggty" in December 1991. (Am. Compl.¶ 22.) He admitted doing so and was issued a written reprimand dated January 2, 1992. (Id.; Memo. in Supp. of Defs.' Mot. to Dismiss Pl.'s Am. Compl. at Ex. B.) The next incident cited by Lemons occurred in March 1994. According to Lemons, he "had a customer that [he] could not get to understand the new rules...." (Am. Compl.¶ 25.) While transferring the customer to a supervisor, Lemons stated: "Let's all of us share this misery." (Id.) He received a verbal and written reprimand, dated March 4, 1994. (Id.; Memo. in Supp. of Defs.' Mot. to Dismiss Pl.'s Am. Compl. at Ex. C.) Lemons's Amended Complaint also acknowledges that in June 1994 he "became very upset with [Defendant Donna Beck's] use of authority" and "was reckless in [his] comments" while addressing his concerns. (Am.Compl.¶ 26.) By memorandum dated June 16, 1994, he received a "final written warning" and was suspended for three days. (Memo. in Supp. of Defs.' Mot. to Dismiss Pl.'s Am. Compl. at Ex. E.) In September 1994 Lemons requested and was granted a medical leave of absence. (Am.Compl.¶ 31.) He returned to work on October 26, 1994, under the direction of a new supervisor. (Id. at ¶ 36.) On November 11, 1994, Lemons was taking a reservation from a "man in an accented voice...." (Id. at ¶ 39.) According to Lemons, the caller made a one-day stay reservation, the man never mentioned the fare, and Lemons "could hear voices [in the background] making comments about `making a delivery.'" (Id.) Based on these observations, Lemons felt that the "call was truly puzzling and trouble-some. ..." (Id.) As a result, he called the 911 emergency operator and reported the incident. (Id.) According to Lemons's version of events, a subsequent meeting with 574 management to discuss the incident quickly became argumentative: Rena Hamrick came to my position and told me that [Lonnie] Harrigal, wanted to see me in her office[.] I wondered why? When I entered[,] Jimmy Speas sat on the left side of the room and I faced [Lonnie] Harrigal sitting in front of her large oak desk, against the right wall facing [Jimmy] Speas[.] [Lonnie] Harrigal's tone of voice was both loud and accusatory, she demanded[,] "What do you mean calling the Winston-Salem police department? Don't you know we have our own security, why didn't you call a manager?" I told her that I didn't think that I had done anything wrong. Her tirade went on and on and on; she was repeating the same thing over and over again. Finally I had taken all that I could take over such a trivial matter. I rose up in my chair, faced her, pointing my finger, and said "You have said the same thing over and over again. I get your point, I am not a child and you are not my parent," [sic] I went on to say [that] as an agent, I had never had any training on how to deal with this type of situation, and in fact we never had even discussed the scenario. There had been no memos, handouts, or any official policy statement that I had ever received regarding the topic, although we had extensive training in "bomb threats". By this time, my reasoning had overcome my emotions, and I looked at them in their very smug postures.... (Id. at ¶ 41.) Lemons also alleges that on November 11, 1994, The Greensboro Daily News published a letter to the editor which he voluntarily wrote. (Id. at 42; Resp. at Ex. G.) Among other things, the letter criticized US Air management. (Id.) On November 18, 1994, US Air terminated Lemons's employment on the basis of Lemons's record of inappropriate conduct, culminating with the November 11, 1994, incident cited above involving Lonnie Harrigal. (Am.Compl. ¶¶ 43-44; Memo. in Supp. of Defs.' Mot. to Dismiss Pl.'s Am. Compl. at Ex. P.) On January 13, 1995, Lemons alleges that he filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). (Am.Compl.¶¶ 5, 46.) On October 31, 1996, the EEOC issued a right-to-sue letter. (Id. at ¶ 6.) Lemons received the letter on November 3, 1996. (Id.) On January 30, 1997, and February 3, 1997, Lemons filed his Complaint and Amended Complaint, respectively, against Defendants, setting forth various causes of action in connection with his discharge. On April 4, 1997, Defendants filed the motion now before this Court, requesting this Court to "dismiss [Lemons]'s amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that [his] claims are without merit on the face of the amended complaint." (Memo. in Supp. of Defs.' Mot. to Dismiss Pl.'s Am. Compl. at 1.) III. STANDARD OF REVIEW With respect to a motion to dismiss for failure to state a claim upon which relief can be granted, dismissals are allowed only in very limited circumstances. Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir.1989). Generally, a court should not dismiss a complaint for failure to state a claim "unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief." Mylan Lab., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993), cert. denied, 510 U.S. 1197, 114 S.Ct. 1307, 127 L.Ed.2d 658 (1994). In making this determination, a court must view the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded factual allegations. Randall v. United States, 30 F.3d 518, 522 (4th Cir.1994), cert. denied, 514 U.S. 1107, 115 S.Ct. 1956, 131 L.Ed.2d 849 (1995). Moreover, when a plaintiff appears in a case pro se, such as Plaintiff here, the complaint is to be judged by "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 575 S.Ct. 594, 30 L.Ed.2d 652, 654, reh'g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972). IV. DISCUSSION A close review of Lemons's filings reveals he has attempted to allege five federal and five state causes of action. This Court will analyze each federal claim and will then collectively address the state law claims. A. Title VII of the Civil Rights Act of 1964 Lemons first alleges that Defendants have engaged in conduct in violation of Title VII of the Civil Rights Act of 1964. (Am.Compl.¶ 53.) Specifically, he alleges that Defendants "have pursued a course of disability discrimination, harassment, coercion, threats, surveillance, and unlawful retaliation for filing a claim with the EEOC and identifying discriminatory actions and nepotism in the work place." (Id. at ¶ 50.) In addition, he contends that Defendants "imposed upon ... [him] less favorable conditions of employment and a lack of any form of accommodation afforded other employees with less disability." (Id.) Lemons therefore contends that he is entitled to relief based upon a violation of Title VII of the Civil Rights Act of 1964. On the other hand, Defendants contend that, since Title VII does not apply to discrimination based on disability, Lemons's claim should be dismissed. (Memo. in Supp. of Defs.' Mot. to Dismiss Pl.'s Am. Compl. at 7.) Title VII of the Civil Rights Act of 1994 makes it unlawful "for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) (1994). However, "Title VII is not a `bad acts' statute." Holder v. City of Raleigh, 867 F.2d 823, 828 (4th Cir.1989). Only discrimination based on Title VII's enumerated categories will support a claim under that statute. See id. at 825-26; see also Balazs v. Liebenthal, 32 F.3d 151 (4th Cir.1994). Here, Lemons does not allege in his Amended Complaint that he was treated negatively as result of his race, color, religion, sex, or national origin. Lemons also fails to address in his Response Defendants' specific legal argument on the Title VII issue. Rather, Lemons's Title VII cause of action is based solely on an allegation of "disability" discrimination. (Am.Compl.¶ 50.) As such, as the Defendants have alleged, this Court finds that Lemons has failed to state a claim under Title VII for which relief may be granted and, therefore, his first cause of action is hereby dismissed. B. 42 U.S.C. § 1983 Lemons next alleges that Defendants actions were "in direct violation of 42 U.S.C. § 1983." (Id. at ¶ 57.) Specifically, he claims that "Defendants, acting under the color of federal and state laws, subjected [him] to the deprivation of his rights, privileges, and immunities secured by the United States [C]onstitution and laws while [US Air] took minimal response to [his] complaints under its EEOC policy." (Id. at ¶ 56.) Defendants argue that Lemons's claim should be dismissed because he "fails to assert any connection whatsoever between [D]efendants and any conceivable state action." (Memo. in Supp. of Defs.' Mot. to Dismiss Pl.'s Am. Compl. at 7-8.) Section 1983 provides that [e]very person, who under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects ... any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. Liability under Section 1983 only extends to individuals acting under color of law, a requirement equivalent 576 to that of state action under the Fourteenth Amendment. Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed.2d 418, 425-26 (1982). Thus, conduct is only actionable under Section 1983 when it is "`fairly attributable to the state.'" United Auto Workers v. Gaston Festivals, Inc., 43 F.3d 902 (4th Cir.1995) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482, 495 (1982)). With respect to pleading requirements, "[c]onclusory allegations that [a party] acted under color of state law will not suffice." Wolfe v. Bias, 601 F.Supp. 426 (S.D.W.Va.1984) (citing District 28, United Mine Workers of America v. Wellmore Coal Corp., 609 F.2d 1083, 1086 (4th Cir.1979)). Here, Lemons has failed to allege in his Amended Complaint any facts which would support his contention that Defendants acted "under the color of federal and state laws," in terms of state action. Lemons has also not attempted to further explain this conclusory allegation in his Response. Accordingly, this Court finds that Lemons has not alleged facts sufficient to maintain a claim under Section 1983 and, therefore, his second cause of action based upon Section 1983 is hereby dismissed. C. 42 U.S.C. § 1981 Lemons also alleges that Defendants acted in violation of the provisions of 42 U.S.C. § 1981. (Am.Compl.¶¶ 55-58.)[4] Defendants contend that Lemons's claim should be dismissed because Section 1981 only prohibits discrimination based on race. (Memo. in Supp. of Defs.' Mot. to Dismiss Pl.'s Am.Compl. at 8.) Section 1981 prohibits discrimination on the basis of race. 42 U.S.C. § 1981; see also St. Francis College v. AlKhazraji, 481 U.S. 604, 609, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987). As such, in order to state a claim under Section 1981, a plaintiff must at least allege that he was the victim of racial discrimination. Here, Lemons has failed to allege any facts that would indicate that Defendants treated him negatively because of his race. Lemons has also failed to include any allegations of racial discrimination in his Response. As such, this Court finds that Lemons has failed to state a claim for relief under Section 1981 and, therefore, his cause of action is hereby dismissed. D. Americans with Disabilities Act Lemons further alleges that Defendants discriminated against him in violation of the provisions of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101. (Am.Compl.¶¶ 55-58.) This Court notes that Lemons includes the ADA in the caption below his "second claim for relief" but fails to cite that statute in the accompanying cause of action paragraphs. He does, however, reference the ADA elsewhere in his Amended Complaint. (Id. ¶ 32.) This Court will accept Lemons's pleading for the purposes of Defendants' motion as properly identifying the ADA as one basis for his claims. Defendants contend that Lemons has failed to state such an ADA claim for which relief can be granted because (1) Lemons is judicially estopped from both collecting disability benefits and from asserting an ADA claim and (2) Lemons's allegations refute any contention that he 577 was fired solely on the basis of his disability. (Memo. in Supp. of Defs.' Mot. to Dismiss Pl.'s Am.Compl. at 10-11.) In addition, Defendants argue that Lemons fails to properly state an ADA retaliation claim because he also admits insubordinate conduct in his Amended Complaint. (Id. at 11-12.) Despite the fact that Lemons has not set forth his specific claims under the ADA, this Court will in light of the fact that he is proceeding pro se review his Amended Complaint to determine whether he has properly alleged an ADA discrimination claim and an ADA retaliation claim. 1. Discrimination claim In order to properly state a claim of disability discrimination under the ADA, a plaintiff must allege that he (1) has a disability, (2) is otherwise qualified for the employment in question, and (3) was discharged from his employment solely on the basis of the disability. See Doe v. University of Md. Med. Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir.1995) (citing Gates v. Rowland, 39 F.3d 1439, 1445 (9th Cir. 1994)). However, Defendants contend that, since Lemons also alleges in support of his ADA claim that (1) he was granted disability benefits and (2) the Social Security Administration ruled that he was disabled as of a date prior to his termination, (Am.Compl.¶ 49), he should be judicially estopped from now bringing a claim under the ADA. (Memo. in Supp. of Defs.' Mot. to Dismiss Pl.'s Am.Compl. at 9-10.) Although Lemons's pleading may be read as adequately stating an ADA discrimination claim, for the reasons set forth below this Court agrees with Defendants' contention that judicial estoppel should apply in this situation.[5] Judicial estoppel is an equitable doctrine which prevents a party from successfully taking a particular position in one proceeding and then taking the opposite position in a subsequent proceeding. King v. Herbert J. Thomas Mem. Hosp., 159 F.3d 192, 196 (4th Cir.1998). Its purpose is "to protect the integrity of the judicial system." See Lowery v. Stovall, 92 F.3d 219, 223 (4th Cir.1996). In order for judicial estoppel to apply, the following elements must be present: (1) the party must be asserting a position factually inconsistent with a position taken in a prior proceeding, (2) the prior inconsistent position must have been accepted by the tribunal, and (3) the party must have taken inconsistent positions intentionally, for the purpose of gaining an unfair advantage. King, 159 F.3d at 196. Here, Lemons acknowledges applying for and receiving disability benefits from the Social Security Administration 578 ("SSA"), and that the SSA "ruled that [he] qualified as a `disabled person'" prior to his termination. (Am.Compl.¶ 49.) By applying successfully for such benefits, the first two elements of judicial estoppel are necessarily present because the SSA will not disburse benefits unless it accepts the factual assertions made by the applicant indicating an "inability to engage in substantial gainful activity by reason of any medically determinable physical impairment. ..." 42 U.S.C. § 423(d)(1)(A) (defining "disability"); King, 159 F.3d at 197. Specifically with respect to the first element of judicial estoppel, Lemons was required pursuant to the Social Security laws to "furnish ... medical and other evidence of the existence" of a disability to the SSA. 42 U.S.C. § 423(d)(5)(A). As to whether the third element of judicial estoppel is present, Lemons's own allegations indicate that his application to the SSA, and his assertions made in connection with that application, were intentional. (Am.Compl. ¶ 49 ("I applied for Social Security [b]enefits and was granted benefits upon my first application. This is an exception and not the general rule (only one in six applicants get benefits upon first application).").) By first representing, as part of his SSA claim, that he was unable to engage in substantial gainful activity and by now seeking to establish, as part of his ADA discrimination claim, that he is able to perform his duties, Lemons is asserting two inconsistent positions "for the purpose of gaining unfair advantage in proceedings governed by divergent standards." Lamb v. Qualex, Inc., 28 F.Supp.2d 374, 376 (E.D.Va.1998). Accordingly, this Court concludes that Lemons is judicially estopped from bringing a claim of disability discrimination under the ADA in the present litigation. This Court acknowledges, however, that the question of judicial estoppel in the context of an application for SSA benefits followed by the filing of an ADA claim has resulted in conflicting rulings among the various courts of appeals. Some circuits have held that claiming a disability for the purposes of receiving particular benefits does not preclude subsequent causes of action of disability discrimination under the ADA. See, e.g., Weigel v. Target Stores, 122 F.3d 461 (7th Cir.1997); Swanks v. Washington Metro., Area Transit Auth., 116 F.3d 582 (D.C.Cir.1997). The rationale behind these rulings is that the definition of "disability" under the Social Security Act and the ADA are not synonymous in that Social Security determinations of disability do not take into account the availability of reasonable accommodations. See, e.g., Swanks, 116 F.3d at 584-587. At least one court of appeals, however, has explicitly approved of judicial estoppel in the ADA context, see, e.g., McNemar v. Disney Store, Inc., 91 F.3d 610 (3d Cir. 1996), cert. denied, 519 U.S. 1115, 117 S.Ct. 958, 136 L.Ed.2d 845 (1997), and another has held that the receipt of social security disability benefits at the very least creates a rebuttable presumption of judicial estoppel, Cleveland v. Policy Management Sys. Corp., 120 F.3d 513 (5th Cir.1997), cert. granted, ___ U.S. ___, 119 S.Ct. 39, 142 L.Ed.2d 30 (1998). Although the Fourth Circuit in King approved of judicial estoppel, this Court recognizes that that case involved a subsequent age discrimination claim under the West Virginia Human Rights Act, a statute that, unlike the ADA, does not require that employers make reasonable accommodations. Nonetheless, the facts of King are closely analogous to the instant action. In King, the plaintiff was asserting for the purposes of her age discrimination claim a factual position that was inconsistent with her prior representations to the SSA. First, she took the position before the SSA that she was "physically unable to do her ... job...." King, 159 F.3d at 197. Second, she attempted to establish a claim of age discrimination under the West Virginia Human Rights Act, a law that requires plaintiffs to prove that they are "able and competent to perform the services required" of their employment. W.Va.Code 579 § 5-11-9(1). Therefore, the elements of judicial estoppel were present and the Fourth Circuit affirmed the district court decision to judicially estop King from bringing her age discrimination claim. Although the Fourth Circuit has yet to expressly approve of judicial estoppel when the subsequent claim is made pursuant to the ADA, as opposed to when the subsequent claim is age discrimination under the West Virginia Human Rights Act as in King, it did at least review such a scenario in Cathcart v. Flagstar Corp., 155 F.3d 558, 1998 WL 390834 (4th Cir.1998), an unpublished decision that this Court uses for illustrative purposes. In ruling that the district court did not abuse its discretion when it decided not to apply judicial estoppel, the Fourth Circuit in Cathcart reasoned that, even if the plaintiff's prior SSA assertions were inconsistent with those made for the purposes of her ADA claim, the second element of the judicial estoppel doctrine was not present because the SSA did not accept the plaintiff's assertion of disability. Therefore, it concluded, the district court was correct when ruling that judicial estoppel did not bar the plaintiff's claim. Notably, however, the Fourth Circuit did not state that judicial estoppel could never be invoked in situations where one position is asserted before the SSA and a contrary one is made in connection with an ADA claim. As one district court within the Fourth Circuit has noted, [a]lthough [the Fourth Circuit in Cathcart] declined to apply the doctrine of judicial estoppel, its reason for doing so in that case was not [because of the reasonable accommodation distinction], but instead due only to the fact that the SSA did not accept the plaintiff's claim to be totally disabled. Were ... the argument distinguishing the ADA on the basis of its requirement that employers make reasonable accommodations compelling, one might expect the Fourth Circuit to have relied on that ground as well. It did not. Lamb, 28 F.Supp.2d at 376. Moreover, other district courts within the Fourth Circuit which have considered the issue have held that such plaintiffs are judicially estopped. Id.; Hindman v. Greenville Hosp. Sys., 947 F.Supp. 215 (D.S.C.1996), aff'd, 133 F.3d 915 (4th Cir.1997) (declining to address the issue of judicial estoppel); Reigel v. Kaiser Found., Health Plan of N.C., 859 F.Supp. 963 (E.D.N.C.1994). For these reasons, this Court finds judicial estoppel appropriate in this instance and, as such, Lemons cannot properly state a claim for disability discrimination. Accordingly, his ADA discrimination cause of action is hereby dismissed. 2. Retaliation claim To state a claim of retaliation under the ADA, a plaintiff must allege that (1) he engaged in protected activity, (2) his employer took adverse employment action against him, and (3) a causal connection existed between the protected activity and the adverse action. McNairn v. Sullivan, 929 F.2d 974, 980 (4th Cir.1991) (citing Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985)). Based upon a careful review of Lemons's pleadings, this Court finds that he fails to properly state all of the elements to support a claim for retaliation. Lemons's Amended Complaint can be read to adequately state that he engaged in protected activity, to wit, the filing of a complaint with the EEOC. (Am.Compl.¶ 4.) In addition, it may also be read to adequately allege adverse employment action, to wit, the termination of his employment. (Id. at ¶ 43.) However, Lemons fails to properly allege a causal connection between his EEOC filing and his termination. As a result of the EEOC filing, Lemons merely alleges that Defendants began directing "agents to write false statements with outrageous ideas" about him. (Id. at ¶ 57.) He fails, however, to allege how those alleged false statements resulted in his termination. Thus, Lemons has failed to properly allege the third requirement *580 of a retaliation claim, that is, a causal connection between the protected activity and the adverse employment action. As such, this Court concludes that Lemons has failed to properly state a claim for retaliation under the ADA and his cause of action is hereby dismissed. E. State Law Claims Lemons alleges that Defendants' alleged conduct violated North Carolina's Equal Employment Practices Act ("EEPA"), N.C.Gen.Stat. § 143-422.1 et seq., and also constituted negligent and intentional infliction of emotional distress, defamation, and malicious interference with contractual relations. These claims are within the supplemental jurisdiction of the Court pursuant to 28 U.S.C. § 1367 because they are part of the same case or controversy as the federal law claims discussed above. However, this Court has granted Defendants' Motion to Dismiss Plaintiff's Amended Complaint as to all of Lemons's federal law causes of action. Because this Court has dismissed all claims over which it has original jurisdiction, and because the remaining claims present issues of state law, this Court declines to exercise supplemental jurisdiction over the state law claims. See 28 U.S.C. § 1367. The merits of Lemons's state law claims would be more appropriately determined outside of the federal court system. Accordingly, these claims are dismissed without prejudice to Lemons timely refiling any state law claims he may have in the appropriate forum. V. CONCLUSION For the foregoing reasons, this Court concludes that Defendants US Air, John Elrod, Lonnie Harrigal, Rena Hamrick, Donna Beck, Jimmy Speas, Judi Brydges, Marty Havens, L.R. Welch, Joyce Greene, Darryl Wiles, and Todd Haywood's Motion to Dismiss Plaintiff's Amended Complaint is granted as to Lemons's claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1983, 42 U.S.C. § 1981, and the Americans with Disabilities Act, and, therefore, those claims are hereby dismissed with prejudice. This Court further concludes that, since Lemons's remaining causes of action are pursuant to state law and this Court hereby has dismissed all of his federal claims, this Court declines to exercise supplemental jurisdiction and Lemons's state claims are dismissed without prejudice. NOTES [1] All individual defendants have been sued in their official, as well as individual, capacities. [2] Lemons's memorandum is entitled "Plaintiff's Motion to Deny Defendants' Motion to Dismiss." For the purposes of this Order it will be referred to as Lemons's "Response." [3] Although this Court recognizes that, for the purposes of analyzing a motion to dismiss, a court must view the complaint in the light most favorable to a plaintiff, accepting as true all well-pleaded factual allegations, Randall v. United States, 30 F.3d 518, 522 (4th Cir.1994), cert. denied, 514 U.S. 1107, 115 S.Ct. 1956, 131 L.Ed.2d 849 (1995), this Court notes that the facts as set forth in Lemons's Amended Complaint and Response are not well organized and often do not indicate the time period during which they allegedly occurred. As such, this Court will consider for clarification purposes only the facts as set forth by Defendants in their Memorandum in Support of Defendants' Motion to Dismiss Plaintiff's Amended Complaint [Document #23]. In addition, Defendants have attached to their Memorandum certain exhibits referenced in Lemons's Amended Complaint. This Court will consider these exhibits solely for the purposes of clarifying the factual background. See 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1327 (2d ed.1990). [4] Lemons includes 42 U.S.C. § 1981 in the caption below his "second claim for relief" but fails to cite that statute in the accompanying cause of action paragraphs. This Court will assume for the purposes of Defendants' motion that Lemons has properly identified 42 U.S.C. § 1981 as the basis for one of his claims. Section 1981, in pertinent part, provides as follows: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. [5] A close review of Lemons's entire Amended Complaint reveals that he does, indeed, sufficiently allege these three elements. First, throughout his pleading he refers to himself as "disabled" or "handicapped." For example, when describing himself as a party to the litigation, he was "employed as a `handicapped' employee with both emotional and physical problems...." (Am.Compl.¶ 8.) In addition, Lemons alleges that he "was hired as a handicapped individual and had received treatment for his bi-polar condition ... while a student...." (Id. at ¶ 27.) Moreover, he alleges that he received notes and letters from doctors which "spelled out clearly the mental and physical problems such as high blood pressure, migraines, cramps, depression, and overwhelming feeling of fatigue." (Id.) Second, in several paragraphs he at least alleges that he is otherwise qualified for his employment. (Eg., id. at ¶¶ 8, 28, 32, 36, 38.) For example, Lemons's Amended Complaint contains the following factual allegation: The Plaintiff never received less than an average to a superlative job evaluation for his work performance. During the almost ten years of tenure, he received more than fifty complimentary letters from passengers. Management could not sack him on his job performance, job expertise, politeness, efficiency, command of the conversation, and better than average sales performance. (Am.Compl.¶ 28.) He also plainly alleges that he "was otherwise a qualified individual with a disability...." (Id. at ¶ 32.) Third, Lemons plainly alleges that Defendants "terminated [him] solely based upon ... [D]efendants [sic] desire to rid themselves of a disabled employee...." (Id.)	{ "pile_set_name": "FreeLaw" }
T.C. Memo. 2012-316 UNITED STATES TAX COURT WHO515 INVESTMENT PARTNERS, TYBG, LLC, TAX MATTERS PARTNER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 12847-05. Filed November 13, 2012. Kyle R. Coleman, for petitioner. Russell Scott Shieldes, for respondent. MEMORANDUM OPINION CHIECHI, Judge: This case is before the Court on respondent’s motion for partial summary judgment.1 The Court will grant respondent’s motion. 1 Respondent filed a memorandum of law and a declaration of respondent’s attorney in support of respondent’s motion for partial summary judgment. (The Court will refer collectively to that motion, that memorandum of law, and that declaration as respondent’s motion.) -2- [2] Background The record establishes and/or the parties do not dispute the following. At the time the petition was filed, WHO515 Investment Partners (WHO515) had been dissolved and did not have a principal place of business. At least during the period September 19 to December 8, 2000, Mark Scholten (Mr. Scholten) owned a 100-percent interest in a flowthrough entity known as TYBG, LLC (TYBG),2 that was to be disregarded for Federal income tax (tax) purposes. At least during the same period, Denise Scholten (Ms. Scholten)3 owned a 100-percent interest in a flowthrough entity known as TYBG II, LLC (TYBG II), that was to be disregarded for tax purposes. At a time not established by the record during 2000, Mr. Scholten also owned an interest in a flowthrough entity known as MDGMA, Ltd. (MDGMA).4 MDGMA had a taxable year that ended on December 31, 2000. 2 TYBG is the tax matters partner in this case. 3 The Court will sometimes refer collectively to Mr. Scholten and Ms. Scholten as the Scholtens. 4 The record does not establish the extent of Mr. Scholten’s interest in MDGMA or whether Ms. Scholten also owned an interest in that flowthrough entity. -3- [3] Around September 19, 2000, WHO515 was formed as a general partnership5 under the laws of Texas and became subject to the provisions of sections 6221- 6234.6 At that time, TYBG and TYBG II owned virtually all of the partnership interests in WHO515.7 As respective 100-percent owners of TYBG and TYBG II, the Scholtens were indirect partners of WHO515. On December 7, 2000, TYBG and TYBG II transferred their respective interests in WHO515 to an S corporation known as Tall Tree Capital, Inc. (Tall Tree), which had a taxable year that ended on December 31, 2000. After those transfers by TYBG and TYBG II to Tall Tree on December 7, 2000, Mr. Scholten, through TYBG, and Ms. Scholten, through TYBG II, each owned a 50-percent interest in Tall Tree and thus remained indirect partners of WHO515. 5 The Court’s use of the words “partnership” and “partners” is for convenience only and not for substantive purposes. 6 All section references are to the Internal Revenue Code in effect for the year at issue. All Rule references are to the Tax Court Rules of Practice and Procedure. 7 Throughout WHO515’s existence, the Scholtens’ three minor children owned a total of one percent of WHO515. -4- [4] WHO515 dissolved and liquidated on December 8, 2000. WHO515 had a short taxable year that began on September 19, 2000, and that ended on December 8, 2000. On July 24, 2001, WHO515 filed Form 1065, U.S. Return of Partnership Income (WHO515 Form 1065), for its taxable year ended December 8, 2000. In that form, WHO515 designated petitioner TYBG as its tax matters partner. On August 16, 2001, the Scholtens filed a joint tax return (2000 return) for their taxable year 2000. In that return, the Scholtens, as indirect partners of WHO515 and as indirect owners of Tall Tree, claimed respective losses attributable to WHO515 and to Tall Tree. On April 14, 2004, the Scholtens executed Form 872-I, Consent to Extend the Time to Assess Tax As Well As Tax Attributable to Items of a Partnership (Scholtens’ Form 872-I). On April 22, 2004, an authorized representative of respondent executed the Scholtens’ Form 872-I. That form stated in pertinent part: Mark A. & Denise M. Scholten * * and the Commissioner of Internal Revenue consent and agree to the following: (1) The amount of any Federal Income tax due on any return(s) made by or for the above taxpayer(s) for the period(s) ended December 31, 2000 may be assessed at any time on or before June 30, 2005. * * * * * * * * * * -5- [5] Without otherwise limiting the applicability of this agreement, this agreement also extends the period of limitations for assessing any tax (including additions to tax and interest) attributable to any partnership items (see section 6231(a)(3)), affected items (see section 6231(a)(5)), computational adjustments (see section 6231(a)(6)), and partnership items converted to nonpartnership items (see section 6231(b)). On April 11, 2005, respondent issued to TYBG a notice of final partnership administrative adjustment (FPAA) with respect to WHO515 for its taxable year ended December 8, 2000. In the FPAA, respondent proposed certain adjustments to the WHO515 Form 1065. Discussion The Court may grant summary judgment where there is no genuine dispute of material fact and a decision may be rendered as a matter of law. Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17 F.3d 965 (7th Cir. 1994). In respondent’s motion, respondent seeks “partial summary judgment in respondent’s favor that the statute of limitations does not bar respondent from assessing and collecting tax and penalties attributable to the partnership items of WHO515 * * for the taxable period ending December 8, 2000.” According to respondent, there is no genuine dispute of material fact and a decision may be -6- [6] rendered as a matter of law in respondent’s favor with respect to that statute of limitations issue. Petitioner does not contend that there is any genuine dispute of material fact that precludes the Court from resolving the statute of limitations issue presented in respondent’s motion. However, it is petitioner’s position that a decision should be rendered as a matter of law in petitioner’s favor with respect to that statute of limitations issue. The dispute between the parties with respect to the statute of limitations issue presented in respondent’s motion is a legal dispute. That dispute concerns whether Mr. Scholten and Ms. Scholten, by signing the Scholtens’ Form 872-I, consented to extend until June 30, 2005, the period within which respondent may assess any tax of theirs, including additions to tax and interest, for their taxable year 2000 that is attributable to any partnership items, affected items, computational adjustments, and partnership items converted to nonpartnership items that are in turn attributable to WHO515 for its taxable year ended December 8, 2000. Petitioner maintains that they did not. Respondent maintains that they did. Before addressing the disagreement of the parties, the Court will summarize certain statutory provisions that control the Court’s resolution of that disagreement. We turn first to section 706(a) relating to the computation of the -7- [7] taxable income of a partner. Section 706(a) requires that, in computing the taxable income of a partner for a taxable year of the partner, the inclusions required by section 702 (income and credits of a partner) and section 707(c) (guaranteed payments) with respect to a partnership are to be based on the income, gain, loss, deduction, or credit of the partnership for any taxable year of the partnership that ends within or with the taxable year of the partner. To illustrate the rule in section 706(a), if the taxable year of a partnership ends on May 31, 2012, and the taxable year of a partner of that partnership ends on December 31, 2012, the partner must take into account in computing the partner’s taxable income for the taxable year of the partner ending December 31, 2012, the partner’s distributive share of partnership items set forth in section 702 for the partnership for its taxable year ending May 31, 2012. See sec. 1.706-1(a)(2), Income Tax Regs. The Court will now summarize certain statutory provisions relating to the period during which the Commissioner of Internal Revenue (Commissioner) may assess the tax of a partner. As pertinent here, section 6501(a) prescribes a period of three years after a return is filed within which the Commissioner generally may assess the tax8 of any person that is attributable to any partnership item or affected 8 The term “tax” also includes additions to tax, additional amounts, and penalties. Sec. 6665(a)(2). For convenience, the Court will refer only to tax and (continued...) -8- [8] item. See Rhone-Poulenc Surfactants & Specialties, L.P. v. Commissioner, 114 T.C. 533, 542 (2000). For this purpose, the term “return” means “the return required to be filed by the taxpayer (and does not include a return of any person from whom the taxpayer has received an item of income, gain, loss, deduction, or credit).” Sec. 6501(a). The period of limitations prescribed by section 6501(a) may be extended if the taxpayer and the Commissioner consent to an extension in writing. Sec. 6501(c)(4)(A). Section 6229(a) prescribes the following minimum period within which the Commissioner may assess the tax of “any person [e.g., any partner] which is attributable to any partnership item (or affected item)”: three years “after the later of (1) the date on which the partnership return for such taxable year was filed, or (2) the last day for filing such return for such year (determined without regard to extensions).”9 See Curr-Spec Partners, L.P. v. Commissioner, 579 F.3d 391, 396- 8 (...continued) not to tax and penalties. The term “tax” does not include interest; however, interest on any tax may be assessed and collected at any time during the period within which the tax to which such interest relates may be collected. Sec. 6601(g). 9 The minimum period of time within which the Commissioner may assess the tax of any person which is attributable to any partnership item or any affected item may be extended. See sec. 6229(b)(1). -9- [9] 398 (5th Cir. 2009), aff’g T.C. Memo. 2007-289; AD Global Fund, LLC v. Commissioner, 481 F.3d 1351, 1354-1355 (Fed. Cir. 2007); Andantech L.L.C. v. Commissioner, 331 F.3d 972, 977 (D.C. Cir. 2003),10 aff’g in part, remanding in part T.C. Memo. 2002-97; Rhone-Poulenc Surfactants & Specialties, L.P. v. Commissioner, 114 T.C. at 542. The minimum period prescribed by section 6229 within which the Commissioner may assess the tax of any partner that is attributable to any partnership item or any affected item may expire before or after the period prescribed by section 6501 within which the Commissioner may assess the tax of that partner. See Rhone-Poulenc Surfactants & Specialties, L.P. v. Commissioner, supra. In no event will the period within which the Commissioner may assess the tax of any partner that is attributable to any partnership item or any affected item expire before the period prescribed by section 6229. With the foregoing statutory provisions in mind, the Court will address petitioner’s position that Mr. Scholten and Ms. Scholten did not consent by signing the Scholtens’ Form 872-I to extend until June 30, 2005, the period within which respondent may assess their tax for their taxable year 2000 that is attributable to any 10 The U.S. Court of Appeals for the District of Columbia Circuit is the court to which an appeal in this case would normally lie. See sec. 7482(b)(1). - 10 - [10] partnership items, affected items, computational adjustments, and partnership items converted into nonpartnership items that are in turn attributable to WHO515 for its taxable year ended December 8, 2000. In support of that position, petitioner argues: “the partnership’s [WHO515’s] taxable year is the tax year ended December 8, 2000. In order for the [Scholtens’] Form 872[-I] to be effective, the consent would have to list both the tax periods ended December 8, 2000 and December 31, 2000 or two (2) consents could have been executed. Neither was done.” Petitioner’s argument reflects a misunderstanding, or a total disregard, of the applicable statutory provisions that control the Court’s resolution of the dispute between the parties as to the legal effect of the Scholtens’ Form 872-I. In the Scholtens’ Form 872-I,11 pursuant to section 6501(c)(4) Mr. 11 The Scholtens’ Form 872-I states in pertinent part: Mark A. & Denise M. Scholten * * and the Commissioner of Internal Revenue consent and agree to the following: (1) The amount of any Federal Income tax due on any return(s) made by or for the above taxpayer(s) for the period(s) ended December 31, 2000 may be assessed at any time on or before June 30, 2005. * * * * * * * * * * Without otherwise limiting the applicability of this agreement, this agreement also extends the period of limitations for assessing any tax (including additions to tax and interest) attributable to any partnership items (see section 6231(a)(3)), affected items (see section 6231(a)(5)), computational adjustments (see section 6231(a)(6)), and partnership items converted to nonpartnership items (see section 6231(b)). - 11 - [11] Scholten and Ms. Scholten expressly extended until June 30, 2005, the period within which respondent may assess their tax for their taxable year ended December 31, 2000, that is attributable to any partnership items, affected items, computational adjustments, and partnership items converted into nonpartnership items. See sec. 6229(b)(3);12 Ginsburg v. Commissioner, 127 T.C. 75, 89 (2006). Any such items and adjustments include such items and adjustments attributable to WHO515 whose taxable year ended December 8, 2000. That is because that taxable year of WHO515 ended within the Scholtens’ taxable year ended December 31, 2000, and section 706(a) requires the Scholtens to take into account in computing their taxable income and their tax for their taxable year ended December 31, 2000, their respective distributive shares of any partnership items set forth in section 702 for WHO515’s taxable year ended December 8, 2000. Mr. Scholten and Ms. Scholten thus expressly consented in the Scholtens’ Form 872-I to respondent’s assessing on or before June 30, 2005, any tax of theirs for their 12 Section 6229(b)(3) provides: “Any agreement under section 6501(c)(4) shall apply with respect to the period described in subsection (a) [of section 6229, i.e., the period for assessing any tax with respect to any person [e.g., any partner] which is attributable to any partnership item (or affected item) for a partnership taxable year] only if the agreement expressly provides that such agreement applies to tax attributable to partnership items.” - 12 - [12] taxable year 2000 attributable to any partnership items, affected items, computational adjustments, and partnership items converted into nonpartnership items, including any such items and adjustments that are attributable to WHO515 for its taxable year ended December 8, 2000.13 On April 11, 2005, before the period of limitations specified in the Scholtens’ Form 872-I expired on June 30, 2005, respondent issued to TYBG the FPAA with respect to WHO515 for its taxable year ended December 8, 2000.14 As a result, the period specified in the Scholtens’ Form 872-I within which respondent may assess the tax of Mr. Scholten and Ms. Scholten for their taxable year ended December 31, 2000, that is attributable to, inter alia, any partnership items or any affected items that are in turn attributable to WHO515 is suspended. 13 On April 22, 2004, an authorized representative of respondent executed the Scholtens’ Form 872-I and thereby consented to the extension specified in that form. See sec. 6501(c)(4)(A). 14 If respondent had issued to TYBG after June 30, 2005, the FPAA with respect to WHO515 for its taxable year ended December 8, 2000, which respondent did not, partnership-level proceedings with respect to WHO515 would have been “of no avail” because the period within which respondent could have assessed the tax of Mr. Scholten and Ms. Scholten for their taxable year 2000 attributable to WHO515 for its taxable year ended December 8, 2000, would have expired. See Rhone-Poulenc Surfactants & Specialties, L.P. v. Commissioner, 114 T.C. 533, 534-535 (2000). - 13 - [13] See sec. 6229(d); Rhone-Poulenc Surfactants & Specialties, L.P. v. Commissioner, 114 T.C. at 552-553. In further support of petitioner’s position that Mr. Scholten and Ms. Scholten did not consent in the Scholtens’ Form 872-I to extend until June 30, 2005, the period within which respondent may assess their tax for their taxable year 2000 attributable to any partnership items, affected items, computational adjustments, and partnership items converted into nonpartnership items that are in turn attributable to WHO515 for its taxable year ended December 8, 2000, petitioner argues that the Scholtens did not intend to do so when they signed that form. According to petitioner, when Mr. Scholten and Ms. Scholten executed the Scholtens’ Form 872-I they did not have in mind extending the period within which respondent may assess their tax for their taxable year 2000 attributable to any such items and any such adjustments. Petitioner maintains that when Mr. Scholten and Ms. Scholten executed the Scholtens’ Form 872-I they believed that they were extending the period within which respondent may assess their tax for their taxable year 2000 attributable to flowthrough items that are attributable only to Tall Tree, an S corporation in which Mr. Scholten and Ms. Scholten each owned a 50-percent interest, and MDGMA, a flowthrough entity in which Mr. - 14 - [14] Scholten owned an interest,15 that had respective taxable years ended December 31, 2000. The Scholtens’ subjective beliefs regarding the entities to which petitioner contends they intended the Scholtens’ Form 872-I to apply do not determine whether Mr. Scholten and Ms. Scholten consented in that form to extend the period within which respondent may assess their tax for their taxable year 2000 attributable to any partnership items, affected items, computational adjustments, and partnership items converted into nonpartnership items that are in turn attributable to WHO515 for its taxable year ended December 8, 2000. In determining the terms of a written form in which a taxpayer consents to extend the period within which the Commissioner may assess the taxpayer’s tax, the Court considers objective manifestations of assent, as evidenced by the overt acts of the parties, not secret intentions. Kronish v. Commissioner, 90 T.C. 684, 693 (1988). Mr. Scholten and Ms. Scholten intentionally signed the Scholtens’ Form 872-I and thereby manifested their assent to the terms set forth in that form. See id. Mr. Scholten and Ms. Scholten, in express and unambiguous language in the Scholtens’ Form 872-I, extended, without limitation, the period within which respondent may assess their tax for their taxable year 2000 attributable to any 15 See supra note 4. - 15 - [15] partnership items, affected items, computational adjustments, and partnership items converted into nonpartnership items. On the record before the Court, the Court finds that pursuant to section 6501(c)(4) Mr. Scholten and Ms. Scholten consented in the Scholtens’ Form 872-I to extend until June 30, 2005, the period of limitations prescribed by section 6501(a) within which respondent may assess their tax for their taxable year 2000 attributable to any partnership items, affected items, computational adjustments, and partnership items converted to nonpartnership items that are in turn attributable to WHO515 for its taxable year ended December 8, 2000. Based upon the Court’s examination of the entire record before the Court, the Court finds that respondent is not barred from assessing and collecting tax of the Scholtens for their taxable year 2000 attributable to partnership items, affected items, computational adjustments, and partnership items converted to nonpartnership items that are in turn attributable to WHO515 for its taxable year ended December 8, 2000. The Court has considered all of the contentions and arguments of the parties that are not discussed herein with respect to the matters that the Court addresses herein, and the Court finds them to be without merit, irrelevant, and/or moot. - 16 - [16] To reflect the foregoing, An order granting respondent’s motion will be issued.	{ "pile_set_name": "FreeLaw" }
912 F.2d 1131 UNITED STATES of America, Plaintiff-Appellee,v.Charles W. ROTH, Claimant-Appellant. No. 89-16694. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 17, 1990.Decided Aug. 30, 1990.As Amended on Denial of RehearingOct. 15, 1990. Susan B. Jordan, Jordan & Osterhoudt, San Francisco, Cal., Ted W. Cassman, Cooper, Arguedas & Cassman, Emeryville, Cal., for claimant-appellant. Brian L. Sullivan, Asst. U.S. Atty., Reno, Nev., for plaintiff-appellee. Appeal from the United States District Court for the District of Nevada. Before TANG, NORRIS and FERNANDEZ, Circuit Judges. WILLIAM A. NORRIS, Circuit Judge: 1 This is an interlocutory appeal of a pre-trial order restraining assets issued by the district court under the Comprehensive Forfeiture Act of 1984 (the Act), 21 U.S.C. Sec. 853. The government argues that the order is not appealable because it is interlocutory. We hold that the order is appealable under 28 U.S.C. Sec. 1292(a)(1) because it is a preliminary injunction. On the merits, we affirm the order. 2 * Appellant Charles Roth, who allegedly participated in a large-scale marijuana distribution enterprise, was indicted for various drug related offenses. The indictment alleged that Roth had acquired an asset, 1490 Squaw Valley Road, Olympic Valley, CA, as a result of his drug trafficking and money laundering, which was subject to forfeiture under the Act. 3 After the indictment was unsealed, the district court granted the government's ex parte motion for a temporary restraining order (TRO) freezing the proceeds from the sale of the property pending trial. A hearing was then set by the district court, as required by United States v. Crozier, 777 F.2d 1376 (9th Cir.1985) to determine whether the TRO should ripen into a preliminary injunction. Following the hearing, the district court issued a preliminary injunction on the ground that the government had demonstrated probable success on the merits of its claim to forfeiture of the proceeds of the sale. II 4 We first decide the question of the appealability of a pretrial order restraining assets under the Act. Appellant argues that because United States v. Crozier, 777 F.2d 1376 (9th Cir.1985), establishes that pre-trial orders restraining assets under the Act must satisfy all the requirements for a preliminary injunction under Federal Rule of Civil Procedure 65, the district court order freezing the proceeds of the sale of 1490 Squaw Valley Road pending trial is appealable as a preliminary injunction under 28 U.S.C. Sec. 1292(a)(1). We agree. 5 In Crozier, we held that Sec. 853 of the Act violated the Fifth Amendment right to due process of law because Congress had failed to provide for a hearing on an ex parte pre-trial order restraining assets. 777 F.2d at 1383. In the absence of valid procedural guidelines in the forfeiture provisions of the Act, we held that Rule 65 of the Federal Rules of Civil Procedure applies to require a district court to hold a prompt hearing after a TRO is granted to determine whether a preliminary injunction should issue. Id. at 1384. This holding is not inconsistent with United States v. Monsanto, --- U.S. ----, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989). There, the Supreme Court explicitly refused to decide whether a hearing in connection with a restraining order pending trial was required and what type of hearing, if any, would satisfy the requirements of due process. Id. 109 S.Ct. at 2666 n. 10. The law of our circuit therefore remains that in order for a restraining order under Sec. 853 to be constitutional, the district court must hold a hearing under Rule 65 to determine whether probable cause exists to issue an injunction. The district court followed precisely this procedure. Expressly citing Crozier, it held a hearing under Rule 65. After the hearing, the court ruled that probable cause existed and issued the preliminary injunction that is now before us for review. Section 1292(a)(1) gives us jurisdiction. 6 The government argues that the order is appealable only if it can qualify under the collateral order exception to the final judgment rule. See Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). In United States v. Spilotro, 680 F.2d 612 (9th Cir.1982) we held a pretrial restraining order appealable under the collateral order doctrine because we reasoned that if the order were not immediately appealable, important questions about the scope of pretrial forfeiture permitted by the due process clause of the Fifth Amendment might not be resolved by the final disposition of the underlying proceedings. The government acknowledges that Spilotro held that an order restraining assets pending trial was appealable under Cohen 's collateral order doctrine, but argues that Spilotro has been undermined as circuit precedent by Monsanto.1 In arguing that Monsanto undermines Spilotro, the government contends that Monsanto "firmly, and once and for all, established that pretrial restraining orders are constitutional and are authorized by 21 U.S.C. Sec. 853 and that the [g]overnment must meet a burden of establishing probable cause in order to obtain one." Appellee's Brief at 3. According to the government, Monsanto 's holding that there was no constitutional infirmity in Sec. 853(e)'s authorization of a restraint on property pending trial negated Spilotro 's rationale for invoking the collateral order doctrine. 7 The government's argument that a pre-trial order restraining assets is a non-appealable interlocutory order ignores Crozier 's holding that such an order is a preliminary injunction for procedural purposes and therefore appealable as a preliminary injunction under 1292(a)(1). Accordingly, the appealability of the order does not depend on the availability of Cohen 's collateral order exception to the final judgment rule. We therefore need not, and do not, reach the question raised by the government as to whether Monsanto has undermined Spilotro 's rationale for invoking the collateral order exception. 8 Because we have jurisdiction under 28 U.S.C. Sec. 1292(a)(1) to review the order freezing the proceeds of the sale of the 1490 Squaw Valley Road property pending trial, we turn to the merits of appellant's argument that we should vacate the order. III 9 Appellant Roth argues that the government failed to make the requisite showing of probable cause for forfeiture of 1490 Squaw Valley Road. At the Crozier hearing, the government presented testimony about alleged irregularities in the financial transactions pertaining to 1490 Squaw Valley Road and in Roth's personal finances. The district court found that it appeared that Ciro Mancuso, the associate from whom Roth bought the property, was involved in drug trafficking and derived his wealth from his drug enterprises. The court further found that Roth was involved in drug trafficking, as well, by virtue of his assistance to Mancuso in laundering money. The court also found the countervailing evidence offered by Roth to be speculative and unsupported and found Roth to be an incredible and unbelievable witness. The district court found that the government established probable cause for forfeiture and a likelihood of success on the merits and accordingly converted the TRO into a preliminary injunction restraining transfer of assets. 10 Probable cause is reviewed de novo. United States v. One 1985 Cadillac Seville, 866 F.2d 1142, 1146 (9th Cir.1989). Probable cause can be shown by an "aggregate of the facts." Id.; United States v. Padilla, 888 F.2d 642, 643-44 (9th Cir.1989). Probable cause is less than prima facie proof but more than mere suspicion. One Cadillac Seville, 866 F.2d at 1146 (citing United States v. United States Currency $83,310.78, 851 F.2d 1231, 1235 (9th Cir.1988)). 11 The government has met its burden in proving probable cause. The IRS agent who testified presented detailed evidence of various financial transactions relating to 1490 Squaw Valley Road. The money trail appears suspicious, even when recounted by appellant himself. Roth acquired the property through the following events. In October 1987, Mancuso purchased the house from his lawyer's mother for $120,000. In August 1988, Mancuso sold the property to Roth for $285,000. In October 1989, Roth sold the property to a third party for $375,000. 12 From March through July 1988, Roth issued six checks worth $156,0002 in amounts varying from $11,000 to $40,000 payable to Mancuso and his wife. Roth attempts to explain the payments as a downpayment, a second deed of trust, and money for improvements. He also offered several explanations for the source of the $155,000, ranging from loans from friends to income from his accounting business. The district court found his explanations on the source of funds issue not to be credible.3 The government also analyzed his tax returns and found no evidence that Roth had $155,000 available. 13 Additionally, evidence submitted by the government suggests that Roth enjoyed significant income from illicit activities, namely, by serving as accountant for all aspects of an alleged drug trafficker's financial affairs, a post which allegedly entailed active participation in money-laundering schemes. Thus, in the absence of significant credible evidence that Roth had availed himself of legitimate non-taxable sources of sufficient funds for the purchase of the property, we have no difficulty finding that the government met its burden of showing probable cause under our cases.4 14 AFFIRMED. 1 A case remains good law unless it is undermined by a subsequent en banc decision, Supreme Court decision, or legislation. See Montana v. Johnson, 738 F.2d 1074, 1077 (9th Cir.1984) 2 Of this $156,000, apparently $1,000 was unrelated to 1490 Squaw Valley Road. The rest of the cash, $155,000, was apparently the cash downpayment for the property. See Appellee's Brief at 10-12 3 See Appellant's Reply Brief at 10. A district court's credibility determinations are given special deference by an appellate court. Spain v. Rushen, 883 F.2d 712 (9th Cir.1989). Applying this standard we agree that the record supports the district court's findings on Roth's credibility 4 For example, in U.S. v. Linn, 880 F.2d 209 (9th Cir.1989), we found probable cause under 21 U.S.C. Sec. 853 to seize an automobile as involved in a drug transaction when an individual had withdrawn money from several banks in Vancouver, Canada, following a meeting with a suspected drug dealer, and had proceeded to drive the auto to Seattle, meet there with another individual and engage in activity in the other individual's truck, in which cocaine was discovered prior to the seizure of the auto driven from Vancouver. We held that "these facts, and the reasonable inferences to be drawn from them, created ample probable cause to believe that [the auto in question] had transported money to be used to purchase drugs," 880 F.2d at 214. The facts in our case present a comparable degree of certainty to those in Linn	{ "pile_set_name": "FreeLaw" }
435 P.2d 89 (1967) MIDWEST ENGINEERING & CONSTRUCTION COMPANY, Inc., a Corporation, and Patterson Steel Company, a Corporation, Plaintiffs in Error, v. ELECTRIC REGULATOR CORPORATION, a Corporation, Defendant in Error. No. 40804. Supreme Court of Oklahoma. September 12, 1967. Carl G. Engling, Steele & Downey, by, George S. Downey, Tulsa, for plaintiff in error Patterson Steel Co. Best, Sharp, Thomas & Glass, Jack M. Thomas, Joseph A. Sharp, Tulsa, for defendant in error. 91 BLACKBIRD, Justice: This appeal involves a controversy growing out of the failure, and refusal, of plaintiffs in error, hereinafter referred to collectively as "defendants", or individually as "Midwest", a Tulsa corporation, and "Patterson", another Tulsa corporation, to pay for a number of the 611 Kilowatt Meters and Voltage Regulators Midwest had ordered from defendant in error, a Connecticut corporation, hereinafter referred to as "plaintiff", to enable Midwest to comply with a U.S. Government contract it had obtained through the U.S. Army Corps of Engineers with district headquarters at Tulsa. When Midwest, after receiving some of the Meters and Regulators, refused to accept shipment of any more of them, and attempted to rescind its alleged contract with plaintiff, plaintiff sought, by the present action, to recover, as damages, on account of Midwest's alleged breach of said contract, the so-called "contract price" not only of the Meters and Regulators, it had shipped Midwest, and had not been paid for, but, in addition, such price of others of the 611 Meters and Regulators it had manufactured, and/or assembled, especially to furnish Midwest for its said Government contract. Plaintiff's asserted cause of action against Patterson was based on the theory that it had guaranteed that the Meters and Regulators would be paid for. The sum for 92 which plaintiff sought judgment was $9,103.24, plus interest and costs of the action. Midwest's U.S. Government contract is referred to, and identified by, the following letters and figures: "DA-11-184-ENG-16168". The written memorandum of plaintiff's alleged contract with Midwest is a "Purchase Order" numbered "758-77" and dated August 14, 1958, which Midwest mailed to, and which was received by, plaintiff at its Norwalk, Connecticut, headquarters on August 18, 1958. The material parts of the "Purchase Order" are as follows: "Please Ship the Following Described Material: * * * * * * * * * * * "Via Best Way Terms Net 30 F.O.B. Norwalk * * * * * * * * * * * ---------------------------------------------------------------------------- "QUANTITY \| DESCRIPTION \| PRICE QUOTED ----------\|--------------------------------------------------\|-------------- \| \| 611 \| Kilowatt Meter in accordance with MIL-M-10304 \| \| and purchase description dates October 25, 1957, \| \| for 30 KW Generators \| 85.00 each \| \| 611 \| Voltage Regulator in accordance with purchase \| \| description dated October 25, 1967, for 30 KW \| \| Generators \| 45 each \| \| \| Subject to source inspection DA-11-184-ENG-16168 \| \| \| \| Certification Required. \| \| \| \| Delivery Required: 1 each item Aug. 25, 1958 \| \| Balance: 25 each item per \| \| month Beginning September \| \| 20, 1958. \| " The day it received the above quoted Purchase Order, plaintiff's sales manager, Mr. Walter, wrote Mr. R.E. Parker, Midwest's Director of Purchasing, the following letter: "Many thanks for your Purchase Order calling for 611 Voltage Regulators and 611 Kilowattmeters. "We respectfully request that the requirement for source inspection be deleted from your order as this procedure is most unusual for regulators. It has not been the practice of the Corps of Engineers' Inspection Group to ask for source inspection on regulators; they being in agreement that the end item must pass the specifications and any previous testing has no value to normal modifications of the product after shipment. "If you see any difficulty in accomplishing this change, we would like to discuss this with you in order to avoid this extra procedure. "Again, many thanks for the subject Purchase Order. We look forward to working with you on this subject." Thereafter, in September, 1958, Patterson purchased the majority of stock in the Midwest corporation, and Mr. P.W. Patterson became Midwest's Vice-President, also. About the same time, plaintiff manufactured 2 prototypes, or "pilot models", of the above mentioned Voltage Regulators, 93 and simultaneously with its shipment of them, mailed to Midwest its invoice dated September 23, 1958. The body of the invoice was as follows: ============================================================================ \| \| Your Order No. \| Our Order No. \| Terms 758-77 \| 13394 \| See reverse side ============================================================================ QUANTITY \|\| DESCRIPTION \|\| PRICE AMOUNT ----------\|\|-----------------------------------------------\|\|--------------- \|\| \|\| 611 \|\| 611 Voltage Regulators, Part 13461 consisting \|\| \|\| of: REGOHMS, Type 3WCD115, part 13461-1 \|\| \|\| Size 3 Chassis, part 13461-2 (Moisture & \|\| $24.50 ea. net \|\| Fungus proof), with voltage adjusting \|\| \|\| rheostats \|\| $20.50 ea. net \|\| \|\| \|\| DELIVERY: 2 pilot models Sept. 23, 1958. \|\| \|\| Balance held for receipt of your \|\| \|\| approval. Production can start \|\| \|\| approximately four weeks from \|\| \|\| receipt of written approval of \|\| \|\| pilot models. \|\| \|\| \|\| FOB Norwalk, Conn. We do not recognize terms and conditions printed on the purchase order which enlarge the liability or responsibility of the Seller as set out in this acceptance." According to a statement of Midwest's account, which was introduced in evidence as defendant's Exhibit No. 2, the above mentioned pilot models were paid for (on the basis of their contract price, in the total amount of $91.64) by a remittance Midwest forwarded to plaintiff, and plaintiff credited to the account, on October 14, 1958. Under date of November 24, 1958, Mr. P.W. Patterson's brother, Mr. N.R. Patterson, who was the Patterson Company's President, wrote a letter, on behalf of Patterson that was received by plaintiff on November 28th, and read, in part, as follows: "Pursuant to 'phone conversation of this morning with Mr. W.H. Walters of your sales department, we are writing this letter to state that we are guaranteeing payment of the account of the Midwest Engineering & Construction Company, Inc., invoices to be paid according to our established paying policy. "Midwest has issued their purchase order No. 758-77 covering 611 units of Voltage Regulators to be used on government contract No. DA-11-184-ENG-16168. With the above information we trust you will approve the credit of Midwest and make shipments promptly as required. " * * * * " Thereafter, on December 2, 1958, Midwest wired plaintiff: "Ship 25 regulators for our # 30KW generator sets. Accept this as a receipt of authorization." Defendants' above mentioned Exhibit No. 2 indicates this quoted telegraphic request to plaintiff, to ship more of the 611 regulators prescribed in the August Purchase Order, was complied with, and charges therefor were entered on Midwest's account, in January, 1959. The same exhibit indicates that plaintiff shortly thereafter shipped to Midwest others of the Purchase Order's prescribed articles, for which a debit of $1125.00 was entered on Midwest's account February 17, 1959. After plaintiff had received no remittance for its 1959 shipments to Midwest, 94 and apparently the latter had ignored plaintiff's communications concerning the unpaid balance of its account therefor, plaintiff wrote Patterson a letter, dated March 30, 1959, calling its attention to the delinquency in Midwest's account whose unpaid balance then totaled $2299.70 (itemized in the letter by invoice number and date) and continuing as follows: "We have already written several letters to Midwest Engineering & Construction without the courtesy of a reply. "In accordance with your letter dated November 24, 1958, guaranteeing payment of the account, we are requesting from you payment of the above past due invoices." Thereafter, despite plaintiff's already announced refusal to ship Midwest any more regulators, or kilowatt meters, until the past due account was paid, Midwest's R.E. Parker wired plaintiff on April 15, 1959, to ship 15 more of the regulators on April 24. After plaintiff had wired back, refusing to do this, and had written Midwest at least three letters seeking payment of the past due account, plaintiff, on May 15, 1959, received the following letter, dated May 11, from Midwest: "This letter is a supplement to and a part of our P.O. No. 758-77. "Until notified no further action is to be taken on our above order due to this contract is being held in abeyance for rescheduling and possible quantity change." Thereafter, plaintiff, on June 1, 1959, received from Midwest the following notation, written on one of its Purchase Order forms dated May 26th: "Reference our P.O. 758-77 and cancel in its entirety." The next day, June 2, 1959, plaintiff entered debits on Midwest's account in the amounts of $6,676.50, and $127.04, respectively, which represented the contract price of regulators and meters it had manufactured on the strength of Midwest's 1958 Purchase Order, so as to be able to ship them when Midwest directed and/or pursuant to the shipping schedule indicated in that Purchase Order. With these additional charges added to Midwest's account, its unpaid balance totaled the sum, for whose recovery plaintiff, after further attempts to collect it proved futile, instituted the present action in November, 1963. As one defense to plaintiff's action, the defendants introduced evidence at the trial, apparently contemplated to make it appear that it was established, by a test conducted at Midwest's Tulsa establishment, on March 10, 1959 under the observation of Mr. Ralph Matthews, an electrical engineer then employed by, and representing, the Army Corps of Engineers that the voltage regulators furnished Midwest by plaintiff would not function properly, and/or meet the test specifications prescribed in Midwest's Government contract DA-11-184-ENG-16168, supra, and referred to in the Purchase Order involved in the present action. Matthews testified, however, in substance, that as far as he knew, plaintiff was not apprised of the results of this test; and there was no other evidence introduced to indicate that plaintiff ever had any notice, or inkling, of any claimed defects in the regulators it furnished Midwest, at least not until after it had fabricated many of the number (611) prescribed in the Purchase Order, and had charged them to Midwest's account. To the contrary effect, plaintiff's sales manager, Mr. Powers, testified that he had no knowledge as to whether the regulators (when Midwest assembled and operated them, with the generators) "functioned properly within the contract requirements." At the close of plaintiff's evidence, the defendant Patterson demurred to it, and, after the court's adverse ruling thereon, defendants introduced evidence on their own behalf. At the close of all of the evidence, defendant Patterson challenged its sufficiency by a motion for a directed verdict. When this motion was overruled, the court gave the jury certain instructions, some of which were objected to by the defendants; and refused defendants' requested 95 instruction No. 2, which, if followed by the jury, would have eliminated consideration, in its assessment of plaintiff's damages, of the contract price of the regulators and kilowatt meters plaintiff fabricated for, but never delivered to, Midwest. After first leaving the court room to begin its deliberations, the jury returned, and, through its foreman, propounded certain questions to the trial judge. The material part of one of these questions was as follows: " * * * * * "* * * we were wondering, is the plaintiff in the case of a verdict in favor of the plaintiff, are they guaranteed payment from the one company if the other company is not also named?" The judge's answer to this question, and the proceedings following it, as shown by the case made, were as follows: "THE COURT: I don't know that I can make that any plainer that you could understand it. The Patterson Steel Company is a guarantor of payment here under certain circumstances that has been brought to you before that has been brought before the Jury here by the testimony of witnesses; and then, furthermore, the Patterson Steel Company, I believe, took over, according to the evidence here, the other company. Now, therefore, you have three possible verdicts under the instructions that you may give, and you hold them now in your hands, those possible verdicts, is about all I can say that I know of here to make it any plainer. "THE FOREMAN: The question arose, and we wanted to see if there was possibly we didn't understand you. Thank you. "THE COURT: Yes, sir. All right, you may return to the jury room. "(The jury having returned to the jury room for further deliberations, the following proceedings were had:) "MR. DOWNEY: Comes now the defendant Patterson Steel Company and objects to the statements of the Court made in response to questions asked by one who was apparently the foreman of the jury, for the reason that in the Court's statement was contained an assumption that Patterson Steel Company had entered into a guaranty contract, which conclusion, if to be drawn, invaded the province of the jury and was prejudicial to the rights of the defendant Patterson Steel Company." At the close of the jury's deliberations, it returned a joint verdict, for the full amount plaintiff sought, against both defendants; and judgment was thereafter rendered accordingly. After the overruling of defendants' separate motions for a new trial, they perfected the present appeal. For reversal, defendants urge eight propositions. Under its propositions "II" and "V", both inclusive, defendants challenge the sufficiency of the evidence to support the liability established by the verdict and judgment on the alleged contract between plaintiff and Midwest; while, under three of their other propositions, defendants challenge only the liability of Patterson on the guaranty of Midwest's payment, described in Patterson's hereinbefore quoted letter of November 24, 1958. In dealing with the arguments under the first group of propositions, we will assume, without deciding, that the motion for a directed verdict interposed solely by the defendant Patterson, laid a sufficient predicate for raising the questions dealt with in those arguments. Defendants' argument under their Propositions "III" and "IV" have reference to the facts that Purchase Order No. 758-77, supra, bore the notation (hereinbefore depicted): "Subject to source inspection"; that plaintiff's letter to Midwest, following receipt of said Purchase Order, requested that "the requirement for source inspection be deleted from this order * * "; and that no such inspection of the meters and regulators plaintiff furnished Midwest, ever occurred. 96 It seems to be defendants' essential position under Proposition III that, when plaintiff requested deletion, or elimination, of this "source inspection" condition of the offer to purchase, evidenced by Midwest's said Purchase Order, said request constituted a "counter offer", which was never shown to have been accepted, or agreed to, by Midwest; and that therefore there was no valid and binding, or enforceable, contract between the parties. Plaintiff, on the other hand, takes the position that even though it never received any letter or communication, from Midwest specifically acceding to its request that source inspection be abolished, or waived, as a condition of Midwest's purchase, yet the fact that plaintiff shipped, and Midwest received, and paid for, some of the articles described in the Purchase Order, relieved the parties' alleged agreement from any infirmity that might otherwise have rendered it unenforceable as a contract. In Lee v. National Refining Co., 181 Okl. 556, 557, 75 P.2d 406, 408, this court recognized the principle defendants rely on, but it also recognized, in connection therewith, a rule which we think applies to this case, by quoting Kingfisher Mill & Elevator Co. v. Westbrook, 79 Okl. 188, 192 P. 209, as follows: "Where a person offers to do a definite thing, and the party to whom the offer is made accepts conditionally, or introduces a new and material term into the acceptance, his answer constitutes a counter proposal, and there is no agreement; but, when the party to whom the counter proposal is made accepts it, such counter proposal and acceptance constitute a binding contract." (Emphasis added). See also Cole-McIntyre-Norfleet Co. v. Holloway, 141 Tenn. 679, 214 S.W. 817, 7 A.L.R. 1683. It is our opinion in this case that when Midwest, after receiving plaintiff's letter of August 18, 1958, requesting that source inspection of the meters and voltage regulators referred to in its Purchase Order No. 758-77, supra, be dispensed with, did not reply to said letter, but thereafter accepted delivery of the two pilot models plaintiff shipped to it, as evidenced by the invoice dated September 23, 1958, and paid plaintiff for them the next month (October), and thereafter repeatedly accepted other such articles shipped to it under said Purchase Order, pursuant to its telegraphic shipping requests, without indicating any objection to plaintiff's request for deletion of source inspection, Midwest, engaged in conduct, from which the jury was warranted in concluding that it impliedly acceded to said request, and that it entered into a binding contract to purchase the articles specified in the purchase order, without their being "source" inspected. In this connection, and as to related matters, see C.H. Lowenthal Co. v. McCormack Bros. Co., 144 Wash. 229, 257 P. 632, Wood & B. Co. v. Hewitt Lumber Co., 89 W. Va. 254, 109 S.E. 242, 19 A.L.R. 467, and the annotation following it; 46 Am.Jur., "Sales" § 47, note 10, and § 48, note 4, with the annotations there cited, and others at 26 A.L.R.2d 1139, 1149 ff., and 77 C.J.S. Sales § 25 a, p. 633. If Midwest had not intended that the source inspection be eliminated from the parties' agreement, it was encumbent upon it to so notify plaintiff, especially in view of the statement in plaintiff's letter: "If you see any difficulty in accomplishing this change, we would like to discuss this with you in order to avoid this extra procedure." In this connection, see C.R. Anthony Co., Inc. v. Stroud, 189 Okl. 104, 105, 114 P.2d 177, 178, where this court said: "If neither of the propositions submitted by plaintiff was acceptable, it was its duty to negotiate with plaintiff for terms." Without any word from Midwest as to this requested modification of the parties' agreement, plaintiff was justified in assuming, in view of Midwest's conduct, that its silence, as to the modification, indicated its consent thereto. In this connection, see Am.Jur., supra, § 50, note 2, and § 51, notes 9 and 18. Consistent with our conclusion that plaintiff and Midwest entered into a binding contract that did not contemplate source inspection, we have also concluded that 97 there is no merit to defendants' argument under their Proposition IV, that, without proving that the meters and regulators had been so inspected, plaintiff "failed to establish essential conditions precedent to its cause of action." In our opinion, if source inspection of the meters and regulators was ever a part of any agreement between plaintiff and Midwest, Midwest could quite correctly have been found to have waived this requirement under the facts of this case. In this connection, see Henry H. Cross Co. v. Texhoma Oil & Refining Co. (C.C.A.8th Cir.) 32 F.2d 442. It therefore follows that proof of compliance with such a requirement, or condition, was not necessary to plaintiff's recovery, and the absence of such proof was no proper obstacle to the trial court's submission of the case to the jury, and to his rendition of judgment in accord with that body's verdict in favor of plaintiff. Under their Proposition V, defendants contend that another reason the evidence was insufficient to go the jury, and to support plaintiff's recovery, is that it did not establish plaintiff's delivery or offer to deliver, or that it was ready, willing, and able to deliver all of the 611 meters and voltage regulators specified in Midwest's Purchase Order No. 758-77. We have already indicated that there is no merit to defendants' further contention that plaintiff never unqualifiedly accepted the terms and conditions of said Purchase Order, by deciding that the evidence was sufficient to support a conclusion that Midwest accepted plaintiff's "qualification" of it, by thereafter repeatedly requesting shipments under it, without mention of, or objection to, plaintiff's request that the Purchase Order's specification of source inspection be dispensed with. It is necessary only to recall Midwest's written direction, that plaintiff received June 1, 1959, to cancel the Purchase Order "in its entirety", in order to contradict defendants' answer brief's further representation that plaintiff "failed to prove repudiation of his alleged contract by Midwest." Plaintiff suggests that if it had continued to ship more meters and regulators after Midwest had, for more than three months in early 1959, ignored its debt to plaintiff for meters and regulators previously shipped, the guarantor Patterson would have been released from its guaranty of Midwest's account. Haynes v. Brown, 18 Okl. 389, 89 P. 1124, and Waggoner Refining Co. v. Bell Oil & Gas Co., 117 Okl. 55, 244 P. 756, do not support defendants' position, because they both show that there are exceptions to the rule requiring a party, suing another for breach of contract, to show that he has tended performance on his part; and that a valid excuse for not making such a tender is the other party's repudiation of the contract, or demonstration that he does not intend to abide by it. In Bushey v. Dale, 181 Okl. 481, 75 P.2d 193, we held: "In establishing a default in the performance by one party of his obligations under an executory, bilateral contract, it is unnecessary to prove a tender of performance by the other party to said contract, if the former has absolutely refused to perform his own said contractual duties." See also Bu-Vi-Bar Petroleum Corp. v. Krow (C.C.A., 10th Cir.) 40 F.2d 488, 69 A.L.R. 1295, and 17 Am.Jur.2d, "Contracts", §§ 358, 428, 429, 449 and 17A C.J.S. Contracts § 481. Under the undisputed facts of the present case, we hold that plaintiff was under no obligation to tender delivery to Midwest of all of the meters and voltage regulators prescribed in Purchase Order No. 758-77, before instituting the present action for damages on account of Midwest's breach of the contract between them. It therefore follows that the failure of the evidence to establish such a tender constituted no ground for a directed verdict, or for a judgment in defendants' favor. Under their Proposition II, defendants contend that the trial court erred in refusing to give its requested instruction No. 2, which would have precluded the jury from awarding plaintiff the contract price of the meters and voltage regulators 98 that it had delivered to Midwest, but had not been paid for, as well as others it had fabricated and/or assembled to await shipping requests from Midwest, when, on June 1, 1959, it received Midwest's communication to cancel Purchase Order No. 758-77. According to defendants' written request for said instruction, it was based upon Outcault Advertising Co. v. Mack (Mo. App.) 259 S.W. 511; and defendants' brief cites O'Dell v. Nelson & Meyers, 182 Okl. 563, 79 P.2d 212, as additional support for their contention that the trial court erred in allowing the jury to base its assessment of damages on the meters' and regulators' contract price. Neither of the cited cases supports this contention of error. Both involved materials that had a value for purposes other than carrying out the particular contracts, or agreements, involved, such as market value, or value for fulfilling other contracts of the vendors. In the present case, the undisputed testimony of Mr. Wallace Powers, sales manager of the plaintiff corporation, was to the effect that the articles here involved were made up especially for Midwest's order, and were unsuitable, and had no value, for purposes other than filling that order. In such a situation, it is our opinion that the appropriate measure of damages was the contract price of the articles. See 46 Am.Jur., "Sales", § 626, at note 11, and cases discussed in the annotations at 44 A.L.R. 215, 268-270, both inclusive. We therefore hold that the trial court committed no error in refusing to give defendants' requested instruction No. 2. Defendants' Proposition VI is as follows: "No recovery may be had upon an alleged guarantee of payment of an account in the absence of a new and separate consideration where such guarantee comes into existence after the original undertaking; no guarantee may be relied upon unless it moves the party guaranteed to perform some act which such party was not already legally obligated to perform, to such party's detriment." Pursuant to defendants' argument under this proposition, it is observed that, as far as the record shows (defendants' Exhibit No. 2, supra) plaintiff furnished nothing to Midwest under Purchase Order No. 758-77, after it charged Midwest's account for the initial pilot models on September 23, 1958 (which were paid for as evidenced by a credit entered on the account October 14, 1958) until January 12, 1959 (as indicated on the next debit of Midwest's account) so that, on November 24, 1958 the date of Patterson's guaranty letter Midwest's account had no debit balance, and, as defendants stated, it stood at "zero zero." Defendants' argument is to the effect that since there was no money owed plaintiff by Midwest at the time this letter was written and received, and the evidence does not show that the purported guarantee of payment of Midwest's account therein expressed ("invoices to be paid according to our established paying policy") was any different from the "net 30" typed on the Purchase Order when plaintiff received it, the evidence failed to show that the letter, relied upon as a contract of guaranty, called for plaintiff to give any benefit, or suffer any detriment, than that which it was already obligated to do, under the antecedent contract between plaintiff and Midwest, evidenced by the Purchase Order of August 18, 1958, whose execution, or performance, had already commenced. Defendants argue that, consequently, the evidence did not show sufficient consideration for Patterson's letter, to make it binding as a contract of guaranty, citing and quoting Tit. 15 O.S. 1961, § 106, Clements v. Jackson County Oil & Gas Co., 61 Okl. 247, 161 P. 216, L.R.A. 1917C, 437 and Eastman Land & Investment Co. v. Long-Bell Lbr. Co., 30 Okl. 555, 120 P. 276. Plaintiff, on the other hand, contends that the written letter of guaranty was in itself presumptive evidence of a consideration therefor, and that the burden of proving its "want of consideration" (if that was a fact) was upon the defendants, citing Tit. 15 O.S. 1961, §§ 114, 115, and 99 Miller v. Oil Well Supply Co., 79 Okl. 135, 191 P. 1094. Defendants' only attempt at directly refuting this argument is the following portion of its reply brief: " * * This * * * is a flight into legal theory for the reason that the record shows no written contract, but an offer of guaranty by Patterson Steel based upon several conditions precedent, none of which plaintiff performed, nor did it ever accept the offer of guaranty which in itself makes the offer ineffective. Consequently, there was admittedly no `contract' of guaranty to which a presumption of consideration could apply." (Emphasis added). In view of the quoted argument, we take it as tacitly conceded that the letter of guaranty was such an "instrument" as contemplated in §§ 114 and 115, supra, unless it was a mere offer of guaranty and lacked the attributes of a contract of guaranty, as contended by defendants. A discussion of these attributes involves dealing with Defendants' arguments under their Proposition VII. Therefore, we move on to those arguments, leaving the answer to defendants' arguments concerning consideration for the letter under both their Propositions VI and VII, to rest upon their failure to discharge their burden of proof, and the "presumptive evidence" statute (§ 114, supra) mentioning only that the record tends to support the presumption, or inference, of a new and additional consideration for Patterson's guaranty letter of November, 1958, by indicating that, after receiving it, plaintiff extended credit to Midwest longer than 30 days, and complied in February, 1959, with a shipping request from Midwest, without having been paid, or demanded payment, for other contract articles it had previously shipped Midwest early in January more than 30 days before. If, as a result of, and in consideration for, Patterson's letter of guaranty, plaintiff waived, or enlarged, as to 1959, and subsequent shipments, the Purchase Order's requirement of payment within 30 days, then this constituted a new and distinct consideration not originally prescribed in plaintiff's contract with Midwest, and this case is distinguishable from those cited by defendants, wherein, under the claimed contracts of guaranty there involved, the guarantee was obligated to do no more than, under its previous contract, it was already obligated to do. As at the time it issued the letter, Patterson was a major stockholder in Midwest, it "had what it deemed to be good reason to expect a substantial benefit from the making of the guaranty." Woods Lumber Co. v. Moore, 183 Cal. 497, 191 P. 905, 908, 11 A.L.R. 549, 553. As to this and related matters, notice other cases cited in the footnotes to 24 Am.Jur., "Guaranty", § 51, and 38 C.J.S. Guaranty § 26 b, c, d. Under their Proposition VII, defendants contend, in substance, that Patterson's letter of November 24, 1958, could have been no more than an offer of guaranty, because of the claimed absence of any evidence that plaintiff's acceptance of it was ever communicated back to Patterson, or any showing that it constituted "an `absolute guarantee' under Oklahoma law", citing Tit. 15 O.S. 1961, §§ 326 and 331. Defendants' initial brief says that plaintiff's witness "Powers admitted and the record shows that there was little, if any reliance" by plaintiff "on the Patterson letter as a `guarantee'; * * ". Powers' testimony comprises approximately 135 pages of the case made. Although defendants do not cite the page or pages, of this record supporting their representation as to this witness' so-called "admission", we have examined all of his testimony, and did not discover it. On the contrary, we have found, from our examination of the entire record, evidence which tended to show that plaintiff did rely on the letter of guaranty; and the evidence indicates no other explanation for plaintiff's shipment to Midwest of February 17, 1959, despite a debit balance, more than 30 days old, in Midwest's account, and for plaintiff's hereinbefore quoted letter to Patterson dated March 30, 1959. 100 As to defendants' contention that no contract of guaranty was ever established by the evidence, because it failed to show plaintiff ever communicated to Patterson its acceptance of the guaranty offer contained in the November, 1958 letter, it is our opinion that under the facts of this case, no such proof was necessary. Mr. N.B. Patterson's reference, in the letter to a previous "`phone conversation'" with Mr. Walters of plaintiff's sales department when considered with certain parts of Mr. Powers' testimony tends to show that the letter was merely a formal confirmation, and memorandum in writing, of an agreement already reached verbally between representatives of plaintiff and Midwest, and that such an agreement was sought, requested, or solicited by plaintiff, after it learned that the Patterson Company had become involved, and financially interested, in the operation of the Midwest Company. Because of the Patterson Company's ownership of Midwest stock and the key position its officer, N.R. Patterson, held in Midwest, we think the jury was warranted, under the authorities on the matter, in concluding that the Patterson Company knew, or should have known, that plaintiff accepted the guaranty offer, without the necessity of dispatching a letter to that effect. In this connection, see Miller v. Oil Well Supply Co., supra; McGowan v. Wells' Trustee, 184 Ky. 772, 213 S.W. 573, and other cases cited and discussed in the annotation at 6 A.L.R.2d 355, 396-407, 415, 418 and the footnotes to 24 Am.Jur., supra, § 102. Under Defendants' Propositions I and VIII they complain of a single verdict having been returned, and a single judgment having been entered against both. Their argument, as we understand it, seems to be that it was error to allow recovery against both defendants jointly, because plaintiff's alleged causes of action, if any, against them were different one being based upon a purchase contract, and the other on a guaranty contract. It seems to be their position, under Proposition VIII, that the contract of guaranty, if any, was not intended to apply to damages resulting to plaintiff from a breach of the purchase contract evidenced by Purchase Order No. 758-77, but was intended to guarantee only Midwest's payment for meters and regulators actually furnished or shipped to it. This argument seems to be an after thought, and an attempt to inject an issue into this appeal not joined at the trial of the case. In argument under their Proposition I, defendants quote the allegations in plaintiff's petition to the effect that Patterson's guaranty was a "guarantee of the purchase order." In Patterson's answer, it made no claim that a recovery of the damages plaintiff sought against Midwest, would not entitle plaintiff to a judgment against it in an identical amount; nor, did the defendants, or either of them, object to the trial court's instructions No. 7 and No. 17, both of which told the jurors, in substance, that if they found Midwest had breached its contract with plaintiff, they should return a verdict against both defendants for the damages they found plaintiff had suffered by reason of said breach. It is a long established rule of appellate review in this jurisdiction that parties are bound in this court by the theories on which they try their cases in the lower court, and cannot secure reversal here on an error they have invited there, or by assuming a position here, inconsistent with that taken there. See Chrysler Corp. v. Walter E. Allen, Inc., (Okl.) 375 P.2d 878, Cimarron Valley Pipe Line Co. v. Holmes, 182 Okl. 450, 78 P.2d 403, and numerous other cases digested in 2A Okl. Dig., Appeal and Error. We have thoroughly examined the entire record of the trial out of which this appeal arose, and, on the basis thereof, it is our opinion that neither of the defendants can now be heard to complain of the entry of the joint verdict and judgment against them. As we have found in none of the arguments presented by the defendants a sufficient *101 and effective ground for reversing the judgment of the trial court, said judgment is hereby affirmed. All the Justices concur.	{ "pile_set_name": "FreeLaw" }
Filed 9/2/16 P. v .Truong CA4/3 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. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, G051305 v. (Super. Ct. No. 11WF0713) MY HOANG THI TRUONG, OPINION Defendant and Appellant. Appeal from a postjudgment order of the Superior Court of Orange County, Christopher J. Evans, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed and remanded with directions. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent. My Hoang Thi Truong appeals from the trial court’s postjudgment order granting her petition to recall her sentence and reduce her receiving stolen property and drug possession convictions to misdemeanors. Truong argues the trial court erred by imposing one year of parole and the court was required to apply any excess custody credits to reduce her parole period. After briefing was complete, the California Supreme Court filed its opinion in People v. Morales (2016) 63 Cal.4th 399 (Morales). We ordered the parties to file supplemental letter briefs on the effect of Morales on this case. They have done so. Neither of Truong’s contentions have merit. We affirm the postjudgment order and remand the matter with directions. FACTS In April 2011, Truong pleaded guilty to four counts of receiving stolen property (Pen. Code, § 496, subd. (a)), and possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and admitted she served two prior prison terms (Pen. Code, § 667.5, subd. (b), all further statutory references are to the Penal Code). The factual basis for the plea was “[she] willfully and unlawfully possessed/received stolen property, knowing it was stolen, and possessed a usable quantity of methamphetamine.” Pursuant to the plea agreement, the trial court sentenced Truong to two years in prison. In 2013, Truong was released on postrelease community supervision (PRCS). On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (the Act), which became effective the following day. (See § 1170.18.) In January 2015, Truong filed an application to have her receiving stolen property and drug possession convictions designated as misdemeanors (§ 1170.18). The trial court granted the petition under section 1170.18, subdivision (a), recalled the felony sentences on her convictions, and designated them as misdemeanors. The court 2 imposed 365 days in the Orange County Jail, awarded 365 days of credit, and imposed one year of parole under section 1170.18, subdivision (d). DISCUSSION PRCS Truong contends the trial court erred by sentencing her pursuant to section 1170.18, subdivision (a), and imposing one year of parole, because she had completed her prison term and PRCS was not part of her sentence. Not so. The trial court properly resentenced Truong pursuant to section 1170.18, subdivision (a), because she had not completed PRCS and, therefore, was “currently serving a sentence” for a qualifying felony conviction. (§ 1170.18, subd. (a) [“A person currently serving a sentence” for a conviction for a qualifying felony may petition for recall of sentence and resentencing]; see Morales, supra, 63 Cal.4th at pp. 403, 409 [defendant subject to PRCS].) A period of parole or PRCS “constitutes part of the punishment for the underlying crime.” (People v. Nuckles (2013) 56 Cal.4th 601, 608.) Proposition 47 did not abrogate the long-standing statutory mandate that a period of parole or PRCS is, with narrow exceptions, a mandatory feature of every sentence resulting in imprisonment in the state prison. (Id. at p. 609.) Excess Custody Credits In her opening brief, Truong argues the trial court should have applied any excess custody credits to reduce her parole period. This claim was recently rejected by the California Supreme Court in Morales. Morales, supra, 63 Cal.4th at pages 404-405, stated as follows: “At issue here is the proper interpretation of section 1170.18, subdivision (d), which provides: ‘A person who is resentenced pursuant to subdivision (b) shall be given credit for time served and shall be subject to parole for one year following completion of his or her sentence, unless the court, in its discretion, as part of its resentencing order, releases the person from parole. Such person is subject to [s]ection 3000.08 parole supervision by the 3 Department of Corrections and Rehabilitation and the jurisdiction of the court in the county in which the parolee is released or resides, or in which an alleged violation of supervision has occurred, for the purpose of hearing petitions to revoke parole and impose a term of custody.’ (Italics added.) On its face, this language seems to require the one-year parole period subject to the court’s discretion to order otherwise. It states that the person shall receive credit for time served and shall be subject to parole.” The Supreme Court held, “We conclude that credit for time served does not reduce the parole period.” (Morales, supra, 63 Cal.4th at p. 403.) In her supplemental briefing, Truong concedes Morales forecloses this claim. This does not end our inquiry, however, as there were further proceedings in the trial court after Truong filed her notice of appeal. On June 26, 2015, this court filed its opinion in People v. Morales (2015) 238 Cal.App.4th 42, review granted August 26, 2015, No. S228030, holding as relevant here, excess custody credits do reduce a parole period. Less than one month later, on July 23, 2015, during briefing, the trial court, relying on our decision in People v. Morales, supra, 238 Cal.App.4th 42, discharged Truong from parole after applying her excess custody credits to her parole period. Truong had been on parole for about six-and one-half months. In her supplemental briefing, Truong asserts the appeal is moot and whether the trial court erred in discharging her from parole is not before this court. In her supplemental briefing, the Attorney General contends the trial court’s order releasing Truong from parole was null and void because the court did not have jurisdiction and our decision in People v. Morales, supra, 238 Cal.App.4th 42, was not final. The Attorney General, claiming Truong has an additional five-and one-half months of parole to serve but recognizing she has not been on parole for over one year, suggests we remand the matter to the trial court to fashion an appropriate remedy, i.e., reinstate the remainder of parole or rescind the order imposing parole. 4 While we commend the trial court’s initiative in modifying Truong’s sentence to comport with Morales, supra, 238 Cal.App.4th 42, we conclude the court lacked jurisdiction to make the modification because this appeal was pending. (People v. Scarbrough (2015) 240 Cal.App.4th 916, 929-930 [trial court lacked jurisdiction to recall sentence and resentence under proposition 47 while appeal was pending (Scarbrough); but see People v. Awad (2015) 238 Cal.App.4th 215, 223-224 [limited remand to allow trial court to conduct proposition 47 postconviction hearing proper].) There was no limited remand in this case. Although section 1237.1 gives trial courts concurrent jurisdiction to correct errors involving the calculation of presentence credits while an appeal is pending, that section applies only to mathematical or clerical mistakes, not substantive issues like the ones involved in this case. (Scarbrough, supra, 240 Cal.App.4th at p. 923.) Therefore, the modification order is void. (Id. at p. 920.) DISPOSITION The trial court’s modification order filed on July 23, 2015, is void for lack of jurisdiction. The postjudgment order is affirmed. The matter is remanded with directions to resolve the issue of Truong’s parole status. O’LEARY, P. J. WE CONCUR: ARONSON, J. FYBEL, J. 5	{ "pile_set_name": "FreeLaw" }
650 S.E.2d 676 (2007) STATE v. ROGERS. No. COA06-1633. Court of Appeals of North Carolina. Filed October 2, 2007. Certification Date October 22, 2007. Case Reported Without Published Opinion. No error.	{ "pile_set_name": "FreeLaw" }
889 F.Supp. 12 (1995) Azubuko CHUKWU, Plaintiff, v. BOARD OF DIRECTORS BRITISH AIRWAYS, Defendant. No. 93 Civ. 12828 (MEL). United States District Court, D. Massachusetts. April 26, 1995. Azubuko Chukwu, Boston, MA, pro se. John J. Davis, Morrison, Mahoney & Miller, Boston, MA, for defendant. LASKER, District Judge. This case concerns a relatively new wrinkle in the interpretation of the Airline Deregulation Act: preemption of a breach of contract claim. Section 1305 of the Act forbids states from enacting or enforcing any law related to air carrier rates, routes, or services. 49 U.S.C.App. § 1305(a)(1). In its recent decision 13 in American Airlines v. Wolens, ___ U.S. ___, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995), the Supreme Court distinguished contract claims from other claims arising under state law which are broadly preempted by § 1305 on the ground that contract actions merely enforce obligations undertaken privately, as distinct from those imposed by a State. Here, British Airways argues that, despite Wolens, the plaintiff's breach of contract claim is preempted under § 1305. I On July 7, 1993, Chukwu Azubuko used a credit card travel service to make and pay for a reservation for his brother to fly on British Airways from Lagos, Nigeria to Grand Cayman. When Azubuko's brother arrived at the Lagos airport later that day, however, he was not permitted to board the plane. Azubuko contends that his brother was told that his ticket was invalid because the fare had been refunded at Azubuko's request. British Airways claims that Azubuko's brother was denied boarding because he did not have the necessary documentation. Azubuko sues British Airways, alleging breach of contract, slander, and intentional infliction of serious emotional distress. British Airways moves to dismiss Azubuko's complaint, asserting that all of his claims are preempted by § 1305 of the Airline Deregulation Act. II A. The Tort Claims In 1978, the Federal Aviation Act was amended by the Airline Deregulation Act to provide, in relevant part: [N]o State ... shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier.... 49 U.S.C.App. § 1305(a)(1) (revised without substantive change, 49 U.S.C.A. § 41713(b)(1)). In Morales v. Trans World Airlines, Inc., the Supreme Court held that the words "relating to" are to be read broadly to mean, "having a connection with or reference to" 504 U.S. 374, 384, 112 S.Ct. 2031, 2037, 119 L.Ed.2d 157 (1992). The Morales Court, holding that § 1305(a)(1) prevents state attorneys general from using general consumer protection regulations to monitor airline fare advertisements, rejected the argument that only those state laws which are specifically addressed to the airline industry are preempted by § 1305(a)(1): "Besides creating an utterly irrational loophole (there is little reason why state impairment of the federal scheme should be deemed acceptable so long as it is effected by the particularized application of a general statute), this notion ... ignores the sweep of the `relating to' language." Morales, 504 U.S. at 386, 112 S.Ct. at 2038; see also Hodges v. Delta Airlines, 44 F.3d 334, 336 (5th Cir.1995) ("Laws of general applicability, even those consistent with federal law, are preempted if they have the `forbidden significant effect' on rates, routes or services."); Williams v. Express Airlines I, Inc., 825 F.Supp. 831, 833 (W.D.Tenn.1993) (The Morales decision "leaves little doubt that a claim based on common law tort ... is as subject to § 1305 pre-emption as any other claim, if it can be demonstrated that it `relates to' airlines `rates, routes, or services.'"). Accordingly, whether Azubuko's tort claims are preempted depends upon whether they "relate to" a "service" within the meaning of § 1305. See Stagl v. Delta Air Lines, Inc., 849 F.Supp. 179 (E.D.N.Y.1994). Claims involving "services provided by individual airline employees directly to passengers, such as ticketing, boarding, in-flight service, and the like," are related to airline `services' under § 1305, and therefore preempted. Id. at 181 (quoting Stewart v. American Airlines, Inc., 776 F.Supp. 1194, 1197 (S.D.Tex.1991)); See also Hodges v. Delta Airlines, 44 F.3d 334, 336 (5th Cir. 1995). In Williams v. Express Airlines I, Inc., the plaintiff, like Azubuko's brother, was refused boarding. There, the court found that Williams' false imprisonment claim "related to" an airline "service", and was therefore preempted: "Unquestionably, the object of plaintiff's movement to fly upon Flight 2463 was an "airline service". 825 F.Supp. at 833. Similarly, In Cannava v. 14 USAir, 1993 WL 565341, 1993 U.S.Dist. LEXIS 16726 (D.Mass. January 7, 1993) the Court found that an allegedly rude ticketing agent was performing airline services when the agent tore up plaintiff's "bereavement fare" ticket. Id., 1993 WL 565341, at 6, 1993 U.S.Dist. LEXIS at 6. The gist of Azubuko's complaint is that British Airways wrongfully prevented his brother from boarding a flight, a process uniquely within the service provided and controlled by air carriers. His claims, therefore, are clearly related to an airline "service" within the meaning of § 1305(a)(1). Because Azubuko's tort claims arise under state law, they are preempted by § 1305(a)(1). B. The Breach of Contract Claim Until recently, § 1305 of the Airline Deregulation Act was read by some courts to preempt contract claims as well as actions arising under state tort law or other state laws of general application relating to rates, routes or services of air carriers. See, e.g., Cannava v. USAir, 1993 WL 565341, 1993 U.S.Dist. LEXIS 16726 (D.Mass. January 7, 1993); Williams v. Express Airlines I, Inc., 825 F.Supp. 831, 833 (W.D.Tenn.1993). In American Airlines v. Wolens, however, the Supreme Court concluded otherwise. ___ U.S. ___, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995). Focusing upon the ADA's prohibition that "No state ... shall enact or enforce any law [relating to air carrier rates, routes, or services]," the Wolens Court held that the Act did not preempt a breach of contract claim arising under the terms of a rates-and-services-related frequent-flyer program: [T]erms and conditions airlines offer and passengers accept are privately ordered obligations and thus do not amount to a State's `enact[ment] or enforce[ment] [of] any law, rule, regulation, standard, or other provision having the force and effect of law' within the meaning of § 1305(a)(1). A remedy confined to a contract's terms simply holds parties to their agreements.... ___ U.S. at ___, 115 S.Ct. at 824 (citations omitted). Azubuko alleges that British Airways privately undertook, and breached, a duty to transport his brother. In an attempt to distinguish Wolens, British Airways contends that Azubuko's contract claim does not concern the breach of a term to which the airline "voluntarily stipulated." This assertion, however, simply begs the question to be resolved at trial: Whether British Airways breached a duty imposed by a contract with Azubuko. Under Wolens, therefore, Azubuko's contract claim does not appear to be preempted by § 1305 of the Airline Deregulation Act. Very recently, Magistrate Judge Collings of this Court reached the same conclusion in a case also filed by Azubuko bearing a remarkable resemblance to the one at hand. Azubuko Chukwu E. v. Board of Directors Varig Airline, 880 F.Supp. 891 (D.Mass. 1995). Like British Airways, Varig contended that, despite the Supreme Court's decision in American Airlines v. Wolens, Azubuko's contract claim was preempted by § 1305. The Court disagreed: At the end, the American Airlines decision dictates the ruling on defendant's motion for summary judgment in the instant case. The plaintiff is seeking to enforce a private agreement for transportation of his brother by air which he made with defendant.... His breach of contract claim is not preempted. Id. at 895. The motion at bar is decided on the same ground. It is worth noting, however, that the Wolens Court provided a caveat to its ruling that § 1305 does not preempt contract actions arising under state law: This distinction between what the State dictates and what the airline itself undertakes confines courts, in breach of contract actions, to the parties' bargain, with no enlargement or enhancement based on state laws or policies external to the agreement. ___ U.S. at ___, 115 S.Ct. at 826. Because the merits of this case have not yet been reached, any determination as to whether the contract alleged by Azubuko may be enforced without resort to such external laws and policies would be premature. * * * *15 British Airways' motion to dismiss is granted with respect to Azubuko's tort claims and is otherwise denied.	{ "pile_set_name": "FreeLaw" }
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 12a0675n.06 FILED No. 11-5196 Jun 25, 2012 UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF TENNESSEE HERBERT S. MONCIER, ) ) Defendant-Appellant. ) Before: BOGGS and COLE, Circuit Judges, and OLIVER, District Judge* BOGGS, Circuit Judge. This is Herbert Moncier’s second appeal for his contemptuous conduct before United States District Judge Ronnie Greer in 2007. On his last appeal, this court reversed his conviction solely because Federal Rule of Criminal Procedure 42(a)(3) required Judge Greer to disqualify himself from presiding over Moncier’s trial, because Moncier’s actions involved disrespect toward Judge Greer. United States v. Moncier, 571 F.3d 593, 594 (6th Cir. 2009). But for Judge Greer’s decision not to recuse, we would have affirmed the conviction in all respects. Id. at 599-600. Instead, we vacated the conviction, and ordered that Moncier be retried before a different district court judge. Id. at 600. Following remand, United States District Judge Samuel H. Mays of the Western District of Tennessee conducted a bench trial and found Moncier guilty of * The Honorable Solomon Oliver, Jr., United States District Chief Judge for the Northern District of Ohio, sitting by designation. No. 11-5196 United States v. Moncier criminal contempt under 18 U.S.C. § 401(1) and (3). Moncier was fined $3,000. The district court also denied Moncier’s motion for a new trial. On appeal, Moncier raises seven arguments: (1) his Fifth Amendment right against double jeopardy was violated; (2) his Fifth Amendment rights to grand jury review and grand jury indictments were violated; (3) his Sixth Amendment right to a jury trial was violated; (4) he was denied his right to present a complete defense; (5) the evidence was insufficient to support his conviction; (6) the district court incorrectly applied the law; and (7) the Speedy Trial Act was violated. All of these arguments have either been rejected by this court previously, or are without merit. Moncier’s conviction and sentence are affirmed. I We adopt the statement of facts from the district court’s thorough and comprehensive findings of fact. Moncier asserts that he is being tried twice for the same offense. He claims his earlier disciplinary proceeding—which is the subject of another case1 —constituted the earlier criminal proceeding. However, “a disciplinary proceeding is not a criminal proceeding, nor is attorney discipline equivalent to criminal punishment.” In re Moncier, 550 F. Supp. 2d 768, 781 (E.D. Tenn. 2008), aff’d, 329 F. App’x 636 (6th Cir. 2009);2 accord In re Caranchini, 160 F.3d 420, 1 Moncier’s other appeal, In re: Moncier, was decided on June 18, 2012. This was an appeal from orders that limit Moncier’s ability to represent other clients or file non-pro se pleadings in the United States District Court for the Eastern District of Tennessee. This court upheld the district court’s orders. 2012 WL 2301647. 2 This court did not directly address Moncier’s double jeopardy on this appeal. -2- No. 11-5196 United States v. Moncier 423 (8th Cir. 1998) (“Although disbarment may be considered punishment ‘in common parlance,’ . . . attorney discipline, including sanctions and disbarment, is not ‘punishment’ for purposes of the double jeopardy clause.”); see also In re Jaffe, 585 F.3d 118, 121 (2d Cir. 2009) (“[s]ince attorney disciplinary proceedings are primarily remedial, the double jeopardy clause of the Fifth Amendment does not apply”). Moncier argues that the disciplinary proceeding was “quasi-criminal,” quoting In re Ruffalo, 390 U.S. 544, 551(1968) (citing In re Gault, 387 U.S. 1, 33 (1967)). However, he ignores the fact that this court affirmed a district court opinion in his very case holding that his disciplinary proceeding is not a criminal proceeding. As Judge Collier explained: According to [defendant], double jeopardy prevents an attorney from being both convicted of a criminal offense and disciplined by a federal court in its maintenance of the ethical and professional standards of the members of its bar. If that were true, an attorney convicted of fraud, murder, treason, or any other criminal offense would be protected by double jeopardy from being disbarred for that underlying conduct. The federal court, in turn, might shield such an attorney from being criminally convicted if it disbarred the attorney based upon the same conduct which would support a criminal conviction. In re Moncier, 550 F. Supp. 2d 768, 781 (E.D. Tenn. 2008), aff’d, 329 F. App’x 636 (6th Cir. 2009). Moncier’s conviction did not violate his right against double jeopardy. II Moncier argues that because his retrial did not commence within seventy days of this court’s mandate, there was a violation of the Speedy Trial Act. In reviewing the denial of a motion to dismiss based on an alleged violation of the Speedy Trial Act, this court reviews “the district court’s -3- No. 11-5196 United States v. Moncier interpretation of the Speedy Trial Act de novo and its factual findings for clear error.” United States v. Sobh, 571 F.3d 600, 602 (6th Cir. 2009). The Speedy Trial Act does not apply to Moncier’s case. The Speedy Trial Act, by its very terms, only applies to “defendant[s] charged in an information or indictment with the commission of an offense,” 18 U.S.C. § 3161(c)(1), and the definition of “offense” in 18 U.S.C. § 3172(2) specifically excludes Class B and C misdemeanors. 18 U.S.C. §§ 3161(c)(1), 3172(2). As the district court noted in its May 10, 2010 order in response to Moncier’s motion asserting a violation of the Speedy Trial Act: This Court has stated on the record that, should the Court convict Moncier, he will face a sentence of no more than six months’ incarceration. A crime for which a defendant faces a sentence of six months or less is a class B misdemeanor. See 18 U.S.C. § 3581(b)(7). Therefore, because Moncier is not charged with an “offense” as that term is defined by the Speedy Trial Act, the Act’s protections do not apply. Class B misdemeanors are excluded from the Speedy Trial Act. United States v. Sued-Jimenez, 275 F.3d 1, 8-9 (1st Cir. 2001) (“Class B and C misdemeanors are explicitly excluded from the [Speedy Trial] Act’s coverage. . . . [A] policy-based argument that the Speedy Trial Act should apply to [this] case, despite the clear language of the Act, must fail . . . .”); United States v. Boyd, 214 F.3d 1052, 1057 (9th Cir. 2000) (reiterating that the Speedy Trial Act does not apply to Class B misdemeanors). There was no violation of the Speedy Trial Act. III Moncier argues that he was not allowed to present a complete defense. This argument encompasses Moncier’s challenge that he was denied his right to a jury trial. -4- No. 11-5196 United States v. Moncier On Moncier’s last appeal, this court held that the trial following remand—before a different district court judge—“should be unencumbered by any of the arguments in Mr. Moncier’s brief to this court. We have considered all of those arguments, and with the sole exception of the one made under Rule 42(a)(3), we reject all of them on the merits.” Moncier, 571 F.3d at 600. That is the law of the case. Arguments concerning his right to a jury trial have already been raised to this court and rejected. There was no error in denying Moncier the ability to relitigate issues already foreclosed by this court’s previous opinion. IV Moncier asserts that his Fifth Amendment right to a grand jury indictment was violated. The Fifth Amendment’s requirement of presentment to and indictment by a grand jury applies only to capital or otherwise “infamous” crimes, i.e., offenses punishable by incarceration in a penitentiary. United States v. Pandilidis, 524 F.2d 644, 649 n.7 (6th Cir. 1975). As discussed previously, the district court made it clear that the defendant would not receive a sentence in excess of six months of imprisonment. Such a Class B misdemeanor is a “petty” offense, 18 U.S.C. § 19, that does not entitle Moncier to a grand-jury indictment. V Moncier argues that the evidence at trial was insufficient to support his conviction. Our review of this issue is limited to determining whether any rational finder of fact could have found the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). As this court noted previously based on the same underlying facts, albeit in a different record: -5- No. 11-5196 United States v. Moncier Mr. Moncier indisputably misbehaved at the November 17, 2006 hearing, and that misbehavior obstructed the court’s efforts not only to proceed generally with Mr. Vassar’s sentencing, but also specifically to ask Mr. Vassar whether he wished to retain Mr. Moncier as counsel. And there is no doubt that Mr. Moncier’s obstruction was intentional. Mr. Moncier essentially admits as much, but contends he had good reason for the obstruction—namely, as he testified at trial and now argues to this court, that he had an ethical duty to obstruct Judge Greer’s questioning of his client. That contention is beside the point, however, for purposes of determining whether the record supports his conviction. It plainly did. Moncier, 571 F.3d at 598. Based on the trial record before Judge Mays, we find that Moncier’s conviction was supported by sufficient evidence. VI All of Moncier’s arguments were previously rejected by this court, or are without merit. The conviction and sentence are AFFIRMED. -6-	{ "pile_set_name": "FreeLaw" }
NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ YONG I. FENLON, Petitioner v. DEPARTMENT OF THE NAVY, Respondent _____________________ 2014-3145 ______________________ Petition for review of the Merit Systems Protection Board in No. SF-0432-04-0076-X-1. ______________________ Decided: February 5, 2015 ______________________ YONG I. FENLON, Carlsbad, California, pro se. LAUREN S. MOORE, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by STUART F. DELERY, ROBERT E. KIRSCHMAN, JR., REGINALD T. BLADES, JR. ______________________ Before NEWMAN, LOURIE, and DYK, Circuit Judges. 2 FENLON v. NAVY PER CURIAM. Yong I. Fenlon (“Fenlon”) appeals from the decision of the Merit Systems Protection Board (“the Board”) dis- missing the Department of the Navy’s (“the Navy”) peti- tion for enforcement (“PFE”) as settled. Fenlon v. Navy, No. SF-0432-04-0076-X-1, 2014 WL 5320065 (M.S.P.B. June 12, 2014) (“Opinion”). Because the Board did not err, we affirm. BACKGROUND Fenlon worked as a financial management analyst for the Navy when she was removed from her position. She appealed her removal to the Board, but in 2004, Fenlon and the Navy entered into a settlement agreement (“the 2004 agreement”). The 2004 agreement resolved “any and all other matters related to Ms. Fenlon’s employment with the Navy.” Resp’t’s App. (“App.”) 18–19. Notably, it stated that Fenlon would “resign her position with the Navy effective 8 February 2003” and “w[ould] not apply for nor accept a position with the Department of the Navy any time in the future.” Id. at 21. As part of the settle- ment, the Navy paid Fenlon $40,000, among other consid- eration. In 2008, Fenlon applied for and accepted a budget an- alyst position with the Navy aboard the Marine Corps Installation West, Camp Pendleton, California. The Navy became aware of Fenlon’s appointment and, in 2011, filed a PFE at the Board to enforce the 2004 agreement. In 2012, the Board’s administrative judge (“AJ”) is- sued a recommendation in which he granted the Navy’s PFE. See id. at 1–10. The AJ found that Fenlon breached the 2004 agreement when she applied for and accepted a position with the Navy in 2008. Id. at 7. The AJ dis- missed as unsupported Fenlon’s argument that the 2004 agreement was void and violated Department of Defense regulations. Id. at 8. In addition, the AJ found that FENLON v. NAVY 3 Fenlon did not act in good faith because she failed to notify the Navy when she accepted her new position and she failed to request a job that excluded Navy activities pursuant to the terms of the 2004 agreement. Id. “Be- cause the essence of the agreement for the Navy was [Fenlon’s] resignation and her agreement never to apply for or accept future employment with the Navy, [the AJ] recommend[ed] that the Navy be granted its requested relief to enforce the agreement” and referred the matter to the Board’s Office of General Counsel. Id. at 10. On May 16, 2013, Fenlon and the Navy submitted a second settlement agreement to the Board (“the 2013 agreement”). In the 2013 agreement, Fenlon agreed to resign from her budget analyst position, and the Navy agreed to withdraw its PFE. By final order dated June 12, 2014, the Board dismissed the Navy’s PFE as settled. Opinion at 1. In its decision, the Board found that the “[2013] agreement is lawful on its face; that the parties freely entered into it; and that the subject matter of the case . . . is within the Board’s jurisdiction.” Id. Fenlon timely appealed. We have jurisdiction pursu- ant to 28 U.S.C. § 1295(a)(9). DISCUSSION The scope of our review in an appeal from a Board decision is limited. We can only set aside the Board’s decision if it was “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). On appeal, Fenlon asks us to vacate the 2013 agree- ment, ostensibly arguing that she lacked capacity when she entered into the agreement: “Please Cancelled Con- siderations for Settlement Agreement between April 30, 2013 and dated May 16, 2013. Because discriminated 4 FENLON v. NAVY against when it I have been diagnosed by doctors with a diseases problem. . . . I got forced to signed and I did not read has been settled because of dangerous symptoms of Thyroid Cancer Stage of my disease.” Pet’r’s Br. 5 (em- phases removed). The Navy responds that Fenlon has neither challenged the terms of the 2013 agreement nor challenged the Board’s determination that the 2013 agreement was valid and binding, and thus does not formally address Fenlon’s incapacity argument. See, e.g., Resp’t’s Br. 10–12. Nonetheless, we conclude that Fenlon’s argument fails, and that the Board did not err in determining that the 2013 agreement “is lawful on its face” and that “the parties freely entered into it.” Opinion at 1. “One who attacks a settlement must bear the burden of showing that the contract he has made is tainted with invalidity . . . .” Asberry v. USPS, 692 F.2d 1378, 1380 (Fed. Cir. 1982) (quoting Callen v. Pa. R.R. Co., 332 U.S. 625, 630 (1948)). Fenlon claims that her medical condition prevented her from entering into the 2013 agreement, but Fenlon failed to make any such argument before the Board. As we said in connection with another effort to challenge a settlement agreement on appeal from the Board’s approv- al of the agreement, “[o]ur precedent clearly establishes the impropriety of seeking a reversal of the [B]oard’s decision on the basis of assertions never presented to the presiding official or to the [B]oard.” Sargent v. Dep’t of Health & Human Servs., 229 F.3d 1088, 1091 (Fed. Cir. 2000). Moreover, and most important, Fenlon had ade- quate representation throughout the Board proceedings and settlement negotiations. App. 1, 13. The Board’s determination was therefore not incorrect, and the 2013 agreement was therefore lawful. Fenlon also argues that the Board erroneously failed to conduct a hearing, citing various statutes and regula- tions, including 29 C.F.R. Part 1614, the Equal Pay Act, FENLON v. NAVY 5 and the Rehabilitation Act of 1973, among others, arguing that she was entitled to a hearing. Pet’r’s Br. 7. But those statutes and regulations are inapposite, as MSPB rules and procedures are prescribed in 5 C.F.R. §§ 1201 et seq. Those rules do grant an employee the right to a hearing, id.; 5 U.S.C. § 7701(a)(1), but if the appellant waives her right to a hearing, then the Board need not provide one, see Callahan v. Navy, 748 F.2d 1556, 1559 (Fed. Cir. 1984) (“All indications, therefore, lead to the conclusion that Congress intended the hearing to be for the employee’s benefit. Nonetheless, if the employee forfeits the right which Congress conferred, he must forego the benefits.”). Here, Fenlon neither requested a hearing nor challenged the lack of a hearing before the full Board. Resp’t’s Br. 7. Instead, Fenlon voluntarily entered into a settlement agreement with the Navy, and the Navy’s PFE was dismissed as settled. Opinion at *1– 2. Accordingly, the Board did not err. CONCLUSION We have considered Fenlon’s remaining arguments and find them unpersuasive. For the foregoing reasons, the decision of the Board is affirmed. AFFIRMED	{ "pile_set_name": "FreeLaw" }
FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT September 28, 2015 _________________________________ Elisabeth A. Shumaker Clerk of Court VALERIE ANNE SCHLECHT, Plaintiff - Appellant, v. No. 14-1513 (D.C. No. 1:11-CV-03072-RM-BNB) LOCKHEED MARTIN CORPORATION, (D. Colo.) Defendant - Appellee. _________________________________ ORDER AND JUDGMENT* _________________________________ Before TYMKOVICH, HOLMES, and McHUGH, Circuit Judges. _________________________________ Valerie Anne Schlecht, appearing pro se, appeals the district court’s grant of summary judgment in favor of her employer, defendant Lockheed Martin Corporation (LMC), on her disability discrimination claims. We have jurisdiction under 28 U.S.C. § 1291 and affirm. The facts are thoroughly and accurately set forth in the magistrate judge’s report and recommendation (R&R) and the district court’s order adopting the R&R and granting summary judgment; therefore, we recite only the most salient facts. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I. Schlecht was employed with LMC as an optical engineer. In 2007, she was assigned to work on LMC’s Orion space shuttle project. Her wages were garnished in July 2008 and again in June 2009. In July 2009, she asked LMC to notify her immediately if it was served with another wage garnishment because she suffered from attention deficit disorder (ADD). In September 2009, she asked LMC to notify her within two days of receiving a garnishment order and to give her an accounting and explanation of the order before adjusting her paycheck. Schlecht’s wages were not garnished again, however. In 2009, the Orion project was delayed, so LMC assigned Schlecht to different tasks. This work was not profitable for LMC or related to her optical engineering skills. In August 2009, LMC’s president told its employees that it expected to eliminate approximately 800 positions because of federal budget cuts. Schlecht was told she would be included in this reduction-of-force. The funding for the Orion project was cut in 2010, and LMC laid off approximately 490 employees in 2009 and 2010. LMC laid off Schlecht in June 2010. Schlecht then filed a pro se complaint alleging LMC violated her rights under the Americans with Disabilities Act (ADA). She alleges she suffers from ADD, major anxiety disorder, and post-traumatic stress disorder (PTSD), which cause her to have an irrational, paralyzing fear that she would be harmed by LMC payroll processes. She alleged that LMC failed to accommodate these disabilities, subjected her to a hostile work environment because of these disabilities, and terminated her 2 both because of her disabilities and in retaliation for her attempt to obtain an ADA accommodation. LMC moved for summary judgment. Because Schlecht did not have any direct evidence of disability discrimination, she was required to establish first a prima facie case of discrimination by showing that she “(1) is a disabled person as defined by the ADA; (2) is qualified, with or without reasonable accommodation, to perform the essential functions of the job . . . ; and (3) suffered discrimination by an employer . . . because of that disability.” EEOC v. C.R. England, Inc., 644 F.3d 1028, 1037-38 (10th Cir. 2011) (internal quotation marks omitted). To satisfy the third prong, “a plaintiff generally must show that [s]he has suffered an adverse employment action because of the disability.” Id. at 1038 (internal quotation marks omitted). Here, the district court assumed for the sake of argument that Schlecht was disabled as defined by the ADA, and it is undisputed that she suffered an adverse employment action. Although Schlecht alleged LMC failed to make several requested disability accommodations, the district court ruled that she only produced evidence relating to her garnishment accommodation requests. The district court ruled these accommodation requests were moot, however, because LMC never received another garnishment order after that accommodation request. Thus, it dismissed her ADA accommodation claim. It also dismissed her ADA hostile work environment claim because Schlecht did not produce any evidence of a hostile work environment. 3 As to Schlecht’s termination and retaliation claims, the district court ruled that LMC presented evidence it selected Schlecht for inclusion in its company-wide reduction in force for legitimate, nondiscriminatory reasons, namely, that her work on the Orion project ended due to budget cuts, and her skill set was too narrow to assign her to profitable work at LMC. Because LMC presented evidence of a legitimate, nondiscriminatory reason for its action, “the burden then shifted back to [Schlecht] to show that [LMC’s] proffered reason was mere pretext.” Id. at 1052. The district court ruled that Schlecht did not carry her burden to present evidence suggesting LMC’s proffered reasons for terminating her were pretext for ADA discrimination or retaliation. Accordingly, the district court granted summary judgment in favor of LMC on all of Schlecht’s claims. Schlecht filed a motion to alter or amend the judgment under Fed. R. Civ. P. 59(e), requesting a hearing and attaching new evidence. The district court denied the motion because Schlecht failed to demonstrate an intervening change in the controlling law, any new evidence previously unavailable, or the need to correct clear error or prevent manifest injustice. See Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (detailing grounds warranting reconsideration under Rule 59(e)). Schlecht appeals. II. “We review a district court’s grant of summary judgment de novo, applying the same standard as the district court.” Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir. 2011). Summary judgment is appropriate “if the movant shows that there 4 is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We view the summary judgment evidence “in the light most favorable to the non-moving party.” Helm, 656 F.3d at 1284. We review for abuse of discretion the district court’s discovery and sanction rulings, Lee v. Max Int’l, LLC, 638 F.3d 1318, 1320 (10th Cir. 2011), refusal to hold a hearing, Davoll v. Webb, 194 F.3d 1116, 1142-43 (10th Cir. 1999), and denial of a Rule 59(e) motion, Loughridge v. Chiles Power Supply Co., 431 F.3d 1268, 1275 (10th Cir. 2005). Although we construe Schlecht’s pro se brief liberally, “our role is not to act as [her] advocate.” Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). Schlecht argues on appeal that the district court erred by (a) not sua sponte imposing sanctions on LMC for requesting overly-broad discovery of her medical records; (b) not informing her prior to filing her Rule 59(e) motion she was required to authenticate her summary judgment evidence; (c) not considering the evidence she presented in her Rule 59(e) motion in light of her pro se status and disabilities; (d) not holding a hearing on her Rule 59(e) motion; (e) ruling she failed to make any reasonable ADA accommodation request other than her garnishment request; and (f) improperly resolving disputed issues of fact when it (i) characterized her accommodation request as seeking advance notice of a garnishment order, rather than a “present assurance” that it would give her advance notice, Aplt. Opening Br. at 14, 5 and (ii) did not let her present testimonial evidence of a hostile work environment at a summary judgment hearing.1 We note at the outset that Schlecht’s pro se status does not excuse her from following the strict requirements of Rule 56 in order to properly contest a summary judgment motion. Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th Cir. 2010) (discussing a pro se litigant’s duty to comply with Rule 56 of the Federal Rules of Civil Procedure); Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994) (stating that a party’s “pro se status does not excuse the obligation of any litigant to comply with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure.”). Thus, there is no merit to Schlecht’s claims (b), (c), and (f) that the district court erred in requiring her to comply with the same evidentiary and procedural rules applicable to all litigants. To oppose summary judgment, Schlecht was required to do more than provide her conclusory assertions or subjective interpretation of the evidence; she was required to present admissible evidence of material fact. Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1546 (10th Cir. 1995) (stating that “[s]ufficient evidence (pertinent to the material issue) must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated 1 Schlecht also lists a claim (g) in which she asks this court to “consider her arguments in support of her need for an accommodation to enjoy equal benefits and privileges as other similarly situated employees, even though the district court did not.” Aplt. Opening Br. at 19. Her quite brief arguments on this issue are too vague and general to present an authentic appellate issue. Furthermore, we will not address the many new arguments that Schlecht first raised in her Reply brief. See Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000) (“This court does not ordinarily review issues raised for the first time in a reply brief.”). 6 therein”) (internal quotation marks omitted). “[C]onclusory allegations standing alone will not defeat a properly supported motion for summary judgment.” White v. York Int’l Corp., 45 F.3d 357, 363 (10th Cir. 1995). Turning to Schlecht’s challenge to the substance of the district court’s summary judgment ruling, her claims (e) and (f), we conclude the record supports the district court’s findings that the only evidence Schlecht produced of an accommodation request she made that would trigger ADA liability were her garnishment requests. Because it is undisputed that LMC did not receive any garnishment orders after her requests, the district court correctly ruled that Schlecht offered no evidence that LMC denied her any reasonable accommodations to which she was entitled, precluding her failure-to-accommodate claim under the ADA. See Kotwica v. Rose Packing Co., 637 F.3d 744, 747-48 (7th Cir. 2011) (explaining that a plaintiff alleging a failure-to-accommodate claim must establish, among other elements, that the defendant failed to make reasonable modifications to accommodate the plaintiff’s disabilities). Schlecht makes conclusory assertions that she tried to communicate with LMC but she produced no supporting evidence that she communicated to LMC any adequate request to accommodate a disability other than her garnishment request. See C.R. England, 644 F.3d at 1049 (“The request for accommodation must be sufficiently direct and specific, giving notice that [the employee] needs a special accommodation.” (internal quotation marks omitted)). The record further supports the district court’s finding that Schlecht did not present any evidence of a hostile work environment. For a hostile environment claim 7 to survive summary judgment, Schlecht was required to present evidence from which a rational jury could find that her workplace was permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the terms, conditions, or privileges of employment, and the harassment stemmed from disability-related animus. See MacKenzie v. City & Cty. of Denver, 414 F.3d 1266, 1280 (10th Cir. 2005). Schlecht did not present any such evidence. She argues she could have presented such evidence if the district court had held a hearing, but it is her obligation to present documentary evidence in response to the motion for summary judgment. See Gross, 53 F.3d at 1546. Schlecht does not challenge the district court’s rulings that she failed to present any evidence of pretext in connection with her discriminatory discharge and retaliation claims. We agree with the district court that there were no genuine issues of material fact allowing any of Schlecht’s ADA claims to survive summary judgment. We also conclude that the district court did not abuse its discretion by not sua sponte imposing sanctions for LMC’s medical-records discovery request (claim (a)). Nor did the district court abuse its discretion in declining to hold a hearing on either LMC’s motion for summary judgment or Schlecht’s Rule 59(e) motion (claims (d) and (f)). A district court is not required to hold a hearing or allow oral argument on a summary judgment or Rule 59(e) motion, Nolan v. de Baca, 603 F.2d 810, 812 (10th Cir. 1979), and refusing to conduct an unnecessary hearing is not an abuse of discretion. 8 As to Schlecht’s Rule 59(e) claims, we note that the district court did not deny her Rule 59(e) motion solely because her newly-submitted evidence was not authenticated or did not comply with the requirements of Rule 56, but more broadly because Schlecht did not demonstrate any of the grounds warranting Rule 59(e) relief. The district court properly refused to consider additional evidence in support of Schlecht’s Rule 59(e) motion where there was no showing “that the evidence was newly discovered or unavailable in a more timely fashion through the exercise of diligence.” Comm. for First Amendment v. Campbell, 962 F.2d 1517, 1524 (10th Cir. 1992). Accordingly, the district court did not abuse its discretion in denying Schlecht’s Rule 59(e) motion (claims (b) and (c)). The district court’s judgment is affirmed. Entered for the Court Timothy M. Tymkovich Circuit Judge 9	{ "pile_set_name": "FreeLaw" }
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-02-00499-CV Patricia Mitchell, Appellant v. Philip A. Mitchell, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT NO. 98-00617, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING ORDER Appellant Patricia Mitchell's Motion for Emergency Relief to Suspend Enforcement of Final Order is denied. It is ordered August 7, 2002. __________________________________________ Bea Ann Smith, Justice Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel Do Not Publish	{ "pile_set_name": "FreeLaw" }
407 F.2d 1322 W. Willard WIRTZ, Secretary of Labor, United StatesDepartment of Labor, Plaintiff-Appellee,v.VALCO, INC., a Corporation, d/b/a Rio Loan Company,Defendant-Appellant. No. 26409. United States Court of Appeals Fifth Circuit. Feb. 11, 1969. Fred Galindo, Brownsville, Tex., for defendant-appellant. Charles Donahue, Sol. Dept. of Labor, Washington, D.C., M. J. Parmenter, Reg. Atty., Dept. of Labor, James F. Gruben, Atty., Dept. of Labor, Dallas, Tex., Bessie Margolin, Robert E. Nagle, Donald S. Shire, Attys., Dept. of Labor, Washington D.C., for plaintiff-appellee. Before GOLDBERG and MORGAN, Circuit Judges, and LIEB, District Judge. PER CURIAM: 1 This appeal arises from the memorandum opinion1 of the District Court. We agree with that decision in all material respects and we adopt it as our own. 2 Affirmed. 1 The memorandum opinion is reported in 280 F.Supp. 449 (S.D.Tex.1968); and in 57 L.C. P32018	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 07-3457 ___________ M.Y., by and through her parents, * J.Y. and D.Y., * * Appellant, * Appeal from the United States * District Court for the District v. * of Minnesota. * Special School District No. 1, * Minneapolis Public Schools; and * Adbihakim Mohamed Isse, * * Appellees. * _____________ Submitted: June 13, 2008 Filed: October 14, 2008 _____________ Before LOKEN, Chief Judge, COLLOTON, Circuit Judge, and PIERSOL1, District Judge. _____________ PIERSOL, District Judge. 1 The Honorable Lawrence L. Piersol, United States District Judge for the District of South Dakota, sitting by designation. Plaintiffs, J.Y. and D.Y, parents of M.Y. (“Parents”), appeal the district court’s2 decision granting summary judgment in favor of Defendant, Special School District No. 1, Minneapolis Public Schools (“District”), on Parents’ claims alleging violations of section 504 of the Rehabilitation Act of 1973 (“section 504"), 29 U.S.C. § 794 (2000), and 42 U.S.C. § 1983 (2000) (“§ 1983"). We affirm. BACKGROUND AND RELATED FACTS Parents of M.Y., a 15-year-old disabled girl, sued District for damages arising from a sexual assault allegedly perpetrated against M.Y. by her bus driver, Isse, while being transported home from summer school at W. Harry Davis Academy. In their Complaint, Parents assert eleven different claims arising under the common law, the United States Constitution, and various other federal and state statutes. The district court granted summary judgment in favor of District on all of Parents’ claims. M.Y. is a student with a disability under the Individuals with Disabilities Act Education Act (“IDEA”), 20 U.S.C. §§ 1400 et. seq. (2000), section 504, and related state law. As a result of her disabilities, M.Y. qualified for and had been attending the special education program offered by District since September 1998. Each school year, in accordance with the requirements of the IDEA, Parents met with teachers and other administrators to develop an individualized education program (“IEP”) for M.Y. which included a written statement of M.Y.’s present educational level, annual goals and short-term instructional objectives, and specific educational services to be provided to M.Y. M.Y.’s 2003/2004 IEP stated that one of the educational services to be provided to her was curb-to-curb transportation on a special education bus with an accompanying educational assistant. Despite being ineligible to receive extended 2 The Honorable David S. Doty, United States District Judge for the District of Minnesota. -2- school year (“ESY”) services,3 District provided M.Y. with special education transportation beginning in the Summer of 2003 and continuing each summer thereafter until the Summer of 2005. On May 12, 2005, Parents met with education staff at W. Harry Davis to discuss M.Y.’s IEP for the 2005/2006 school year. The resulting IEP stated that once again, M.Y. was ineligible to receive ESY and related services. However, the IEP stated that during the school year, District would continue to provide M.Y. with curb- to-curb transportation on a special education bus, but omitted the provision of a one- to-one educational aide on the school bus. The IEP further provided that M.Y. would be required to use general education transportation when traveling to and from a “general education activity such as a field trip or dance.” M.Y.’s parents made no objection to the IEP’s provisions and signed their approval on May 18, 2008. On Saturday, June 18, 2005, Parents received a postcard from District stating that M.Y. would be required to use general education transportation for summer school beginning on Monday, June 20, 2005. The general education transportation did not guarantee a bus driver that would be specially trained in the needs and sensitivities of children with disabilities and would pick up and drop off M.Y. about a half block from her home. Isse was assigned to the route that took M.Y. home after her 2005 summer school classes. Since the time Isse was hired by District on August 24, 2000, District had received no complaints regarding Isse from either students or parents. As part of 3 ESY services are defined as special education and related services that– (1) Are provided to a child with a disability–(i) Beyond the normal school year of the public agency; (ii) In accordance with the child’s IEP; and (iii) At no cost to the parents of the child; and (2) Meet the standards of the SEA. 34 C.F.R. 300.106(b) (2007). Summer school and related services qualify as ESY services. -3- District’s hiring process, Isse successfully completed a drug screen and criminal background check. When M.Y. was returning home from summer school on June 23, 2005, Isse allegedly engaged in inappropriate sexual conduct with M.Y. approximately two blocks from M.Y.’s assigned bus stop and a departure of several blocks from the normal route. Parents filed a complaint with the Minneapolis Police Department and District’s Department of Transportation Services promptly filed a Maltreatment of Minors report with the Minnesota Department of Education. District suspended Isse with pay effective Monday, June 27, 2005, pending the outcome of the investigation. On October 25, 2005, District’s Board of Education approved the Superintendent’s recommendation to suspend Isse without pay effective September 30, 2005. On July 5, 2006, following its investigation into M.Y.’s complaint, the Minnesota Department of Education issued a determination that there was a preponderance of the evidence to show that Isse had sexually abused M.Y. Following this determination, District terminated Isse’s employment. On appeal, Parents contest the district court’s decision to grant summary judgment as to certain claims contained in their Complaint. Specifically, Parents contend that the district court erred in dismissing their claims arising under section 504 and § 1983. STANDARD OF REVIEW We review de novo a district court’s grant or denial of summary judgment. Med. Liab. Mut. Ins. Co. v. Alan Curtis LLC, 519 F.3d 466, 471 (8th Cir. 2008). Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, demonstrates that there is no genuine issue of material fact -4- and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Id. DISCUSSION The claim by Parents that the district court erred in concluding that they were required to exhaust administrative remedies in order to recover under section 504 or § 1983, is misinformed. The IDEA exhaustion requirement applies to claims brought under section 504 or other federal statutes only to the extent that those claims seek relief that is also available under the IDEA. 20 U.S.C. § 1415(l). Despite Parents’ vigorous assertions to the contrary, the district court clearly stated that Parents were not required to exhaust administrative remedies under the IDEA since the statute’s administrative procedures and remedies were only designed to address prospective educational benefits and not the past injuries that M.Y. suffered from the sexual assault. The Court will therefore review de novo the district court’s decision as it relates to the merits of Parents’ section 504 and § 1983 claims. I. Section 504 Claims To state a prima facie case under section 504, a plaintiff must show that he or she (1) is a qualified individual with a disability; (2) was denied the benefits of a program or activity of a public entity receiving federal funds; and (3) was discriminated against based on her disability. Timothy H. v. Cedar Rapids Cmty. Sch. Dist., 178 F.3d 968, 971 (8th Cir. 1999). Additionally, a plaintiff must show that the discrimination reflected bad faith or gross misjudgment. Monahan v. Nebraska, 687 F.2d 1164, 1171 (8th Cir. 1982). The district court dismissed Parents’ section 504 claim on the basis that there was no evidence in the record that District’s actions discriminated on the basis of M.Y.’s disability. Even if District’s actions were discriminatory, the district court -5- further held that the actions were not undertaken in bad faith or with gross misjudgment. A. Discrimination on the basis of disability Parents’ Complaint appears to advance two different theories of disability discrimination under section 504. First, Parents contend that District’s transportation program of allegedly denying special education transportation to and from summer school to students who are not eligible for ESY services, effectively denied M.Y. a free and appropriate public education (“FAPE”) because the program failed to meet individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons. Second, Parents claim that failing to provide M.Y. a reasonable accommodation of special education transportation deprived her of meaningful access to summer school. i. Denial of free and appropriate education The regulations implementing the Rehabilitation Act provide that a recipient of federal funds that operates a public elementary or secondary education program or activity “shall provide a free appropriate public education to each qualified handicapped person who is in the recipient’s jurisdiction, regardless of the nature or severity of the person’s handicap.” 34 C.F.R. 104.33(a) (2007). These regulations define an appropriate education as: the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of §§ 104.34, 104.35, and 104.36. 34 C.F.R. 104.33(b)(1). -6- Furthermore, the regulations provide that “[i]mplementation of an Individualized Education Program” developed in accordance with the IDEA is one means of providing a free appropriate public education under section 504. 34 C.F.R. 104.33(b)(2). Overall, the Court concludes that District’s decision not to provide M.Y. special education transportation to and from summer school did not have the effect of denying her a free and appropriate public education because this action was in accordance with the terms of M.Y.’s IEP. The regulations detailing the actions districts must take in order to receive federal financial assistance under the IDEA state that ESY services must be provided “only if a child’s IEP Team determines, on an individual basis . . . that the services are necessary for the provision of [a free appropriate public education] to the child.” 34 C.F.R. 300.106(a)(2). In the present case, M.Y.’s IEP team specifically agreed that M.Y. was not eligible for ESY services which, under the statute, included related services such as transportation. See 34 C.F.R. 300.106(b). Accordingly, denying M.Y., a non-ESY eligible student, special education transportation to and from summer school did not have the effect of denying her a free and appropriate public education under section 504. ii. Failure to provide a reasonable accommodation Parents contend that failing to provide M.Y. with a reasonable accommodation of special education transportation constituted disability discrimination because it had the effect of denying her meaningful access to summer school. Likening the present case , as Parents do in their brief, to that of a hearing-impaired student who is denied an interpreter during summer school because the student is ineligible to receive ESY services, implies that the latter case is unquestionably actionable under section 504. The Eighth Circuit, however, has not held one way or the other on whether a failure to provide a reasonable accommodation may constitute discrimination on the basis of one’s disability under section 504. See Davis v. Francis Howell Sch. Dist., 138 F.3d 754, 757 (8th Cir. 1998) (stating that “[t]his court has not determined whether the -7- failure to make reasonable modifications in a policy is itself discrimination even where the policy and its rationale cannot be shown to be discriminatory.”); see also Timothy H., 178 F.3d at 972-73 (discussing Davis); DeBord v. Bd. of Educ. of Ferguson-Florissant Sch. Dist., 126 F.3d 1102, 1106 (8th Cir. 1997). We need not address this issue at the present time since we find that District lacked the requisite intent to be liable under section 504. B. Intent Requirement In order to state a claim under section 504 in the context of education of handicapped children, Parents must show that District acted in bad faith or with gross misjudgment by departing substantially from “accepted professional judgment, practice or standards as to demonstrate that the person[s] responsible actually did not base the decision on such a judgment.” Monahan, 687 F.2d at 1170-71 (quoting Youngberg v. Romeo, 457 U.S. 307, 323, 102 S.Ct. 2452, 2462, 73 L.Ed.2d 28 (1982)) (footnote omitted). This reflects the notion expressed by the court in Monahan, that in limiting liability to discrimination “solely by reason of ... handicap,” Congress did not intend to create general tort liability for reasonable decisions made by professionals in the educational context. Id. There is no evidence in the record that District possessed the requisite bad faith or gross misjudgment in denying M.Y. special education transportation. District’s decision fully complied with the terms of M.Y.’s IEP which stated that M.Y. was not eligible for ESY and related services such as transportation. Accordingly, we affirm the district court’s decision granting summary judgment in favor of District on the basis that District did not possess the requisite intent in order to be liable under section 504. -8- II. Section 1983 Claim To establish municipal liability under § 1983, a plaintiff must show that a constitutional violation was committed pursuant to an official “policy or custom” and that such “policy of custom” was the moving force behind plaintiff’s injury. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694-95, 98 S.Ct. 2018, 2038, 56 L.Ed.2d 611 (1978). Parents argue that District is liable under § 1983 under two different theories. First, Parents contend that District had a custom or policy of denying special education transportation to and from summer school to students who did not qualify for ESY services. In the alternative, Parents argue that District maintained a custom or policy of failing to train or supervise its employees with respect to the provision of special education transportation. The Court concludes that the district court was correct in granting summary judgment against Parents as to their § 1983 claims. The Court finds no evidence in the record that District maintained any customs or policies such as those suggested by Parents. While District argues in its memorandum in support of its motion for summary judgment that it may not be liable under section 504 for failing to provide M.Y. special education transportation to and from summer school because such services are not necessary to give her a free and appropriate education under the IDEA, such an argument is insufficient evidence of a custom or policy denying all non-ESY eligible students this service. The Court agrees with District that the record contains no written District policies pertaining to summer school transportation and is completely devoid of any evidence regarding how other students with disabilities are transported to and from summer school. For the foregoing reasons, we affirm the judgment of the district court. ______________________________ -9-	{ "pile_set_name": "FreeLaw" }
737 F.2d 698 39 Fed.R.Serv.2d 504, 1984-2 Trade Cases 66,080 JACK WALTERS & SONS CORP., Plaintiff-Appellant,v.MORTON BUILDING, INC., Defendant-Appellee. No. 83-2300. United States Court of Appeals,Seventh Circuit. Argued March 30, 1984.Decided June 22, 1984. John S. Skilton, Foley & Lardner, Milwaukee, Wis., for plaintiff-appellant. Richard T. O'Neill, Michael, Best & Friedrich, Milwaukee, Wis., for defendant-appellee. Before ESCHBACH and POSNER, Circuit Judges, and SWYGERT, Senior Circuit Judge. POSNER, Circuit Judge. 1 This antitrust suit under section 1 et seq. of the Sherman Act, 15 U.S.C. Sec. 1 et seq., pits a building-materials dealer, Walters, against a manufacturer of prefabricated farm buildings, Morton. The complaint, filed in 1978, alleges that Morton tied building components to its trademark, assigned its franchised dealers (one of whom was Walters) exclusive sales territories, limited the prices the dealers could charge consumers, and eventually took over the dealership function, terminating Walters in the process. There also is a pendent claim for breach of a duty of fair dealing under Wisconsin law. In 1981, shortly before trial was to begin, Morton moved for summary judgment. The district judge referred the motion to a special master, a member of the Milwaukee bar. After considering for 17 months the voluminous materials that the parties had submitted in connection with the motion, the special master submitted his report, which recommended granting the motion except with respect to the claim regarding exclusive territories. In a brief order the district judge adopted the master's recommendations in their entirety and therefore dismissed all but the exclusive-territories claim, which he retained for trial. He then directed entry of final judgment for Morton on the dismissed claims upon an express determination that there was no just reason for delay, and Walters has appealed under Rule 54(b) of the Federal Rules of Civil Procedure. 2 We consider first, on our own initiative as we must, whether the dismissed and retained claims are separate claims within the meaning of Rule 54(b); if they are not, the judgment of dismissal cannot be appealed as a final judgment and Walters must wait to take its appeal until the exclusive-territories claim is tried. Our recent decisions emphasize that trial judges do not have carte blanche to certify partial dispositions for immediate appeal under Rule 54(b). See A/S Apothekernes Laboratorium v. I.M.C. Chem. Group, Inc., 725 F.2d 1140 (7th Cir.1984); Minority Police Officers Ass'n v. City of South Bend, 721 F.2d 197 (7th Cir.1983). The rule itself makes clear that a district judge may enter an appealable judgment only if it disposes of a "claim for relief" that is "separate" from the claims not disposed of. But unfortunately the meaning that the draftsmen intended "claim for relief" to bear is not clear, see Local P-171, Amalgamated Meat Cutters v. Thompson Farms Co., 642 F.2d 1065, 1069-71 (7th Cir.1981); 10 Wright, Miller & Kane, Federal Practice and Procedure Sec. 2657 (2d ed. 1983), and the Supreme Court has not yet attempted a compendious definition. See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297 (1956); Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445, 76 S.Ct. 904, 100 L.Ed. 1311 (1956); Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 743 n. 4, 96 S.Ct. 1202, 1206 n. 4, 47 L.Ed.2d 435 (1976). The recent decisions of this court have experimented with a practical approach based on what we conceive to be the most important purpose behind Rule 54(b)'s limitations--to spare the court of appeals from having to keep relearning the facts of a case on successive appeals. The approach is: if the facts underlying different claims are different, the claims are separate for Rule 54(b) purposes. For if there are different facts (and of course different issues) consideration of the appeals piecemeal rather than all at once will not involve a duplication in the efforts required of the judges to prepare for argument in, and to decide, each appeal. The gains from forcing the consolidation of appeals will therefore be small and will be outweighed by the benefits of an immediate appeal in resolving the parties' rights with respect to a part of the controversy between them. By the same token, if there is a great deal of factual overlap between the decided and the retained claims they are not separate, and appeal must be deferred till the latter are resolved. 3 Applying this approach to the present case, we find potential but not actual factual overlap between the charges that the district judge dismissed and the single charge, involving exclusive territories, that he retained; therefore we have jurisdiction of the appeal. A charge that limiting the territories in which one's dealers can sell violates section 1 of the Sherman Act is now evaluated under the Rule of Reason. See Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). This means among other things that the plaintiff must show that the defendant has market power, see Valley Liquors, Inc. v. Renfield Importers, Ltd., 678 F.2d 742, 745 (7th Cir.1982), as this is a prerequisite to being able to restrain trade unreasonably. The Supreme Court's most recent tying decision requires the plaintiff to make a similar, maybe identical, showing in order to prove that a tying arrangement is unlawful, even though tying still is referred to as a per se offense. See Jefferson Parish Hospital Dist. No. 2 v. Hyde, --- U.S. ----, 104 S.Ct. 1551, 1559-60, 80 L.Ed.2d 2 (1984). Moreover, where as in the present case the plaintiff tries to show that the whole is greater than the sum of its parts--that an "aggregation of trade restraints" is unlawful even if the constituent restraints taken one by one are not--and one of the parts is territorial exclusivity, the issue of unlawful "aggregation" logically requires consideration of the facts concerning territorial exclusivity. 4 All these are reasons why in the usual case a challenge to a scheme of restricted distribution states only one claim for Rule 54(b) purposes. But this case is unusual in that the particular grounds on which the special master and the district judge disposed of the charges that are involved in the appeal do not overlap, factually or legally, the charge of territorial exclusivity that he retained for trial. A clue to this is that the parties' briefs in this court tell us nothing about the exclusive territories--how large they were, how exclusivity was enforced, how long exclusive territories were in effect, and for what reasons and with what consequences. Although the voluminous record submitted with the appeal contains much on these questions, that is only because the appeal record is the same record that was before the master and the district judge. The parties have made no reference to the parts of the record that relate to exclusive territories. The district judge dismissed the tying charge not because he found that Morton lacked market power, an issue that as we have said would also be highly relevant to the lawfulness of territorial restrictions, but because he found that the tying and the tied products were not separate products and therefore that there could be no tie-in. He dismissed the resale price maintenance and vertical integration allegations (the latter involving Morton's takeover of the retail distribution of its buildings) on evidentiary grounds unrelated to the lawfulness of exclusive territories. And with all of the specific charges other than the territorial charge dismissed, the "aggregation of trade restraints" charge fell of its own weight, like a conspiracy charge when all but one of the alleged participants have been exonerated. 5 Since, for these reasons, this appeal is unencumbered by any facts bearing on the retained claim, we are entitled to regard that as a separate claim. Its retention by the district court therefore does not deprive us of jurisdiction over the appeal from the dismissal of the rest of the plaintiff's case. This brings us to the merits. We begin with the tie-in charge. 6 Almost every product can be viewed as a package of component products: a pair of shoes, for example, as a package consisting of a left shoe and a right shoe; a man's three-piece suit as a package consisting of a jacket, vest, and pants; a belt as a package consisting of a buckle and a strap. As shown by the last of these examples, it is possible to describe a product as a package of components even if the components are physically integrated at the point of sale to the consumer. Indeed, much of what is called "manufacturing" is the assembly, i.e., physical integration, of components, often components manufactured by other companies. The manufacturer of an airplane, for example, does not build the whole thing from scratch. Usually he will build just the airframe consisting of the fuselage, wings, and tail, and he will buy the engine, the wheels, the radar and other electronic equipment and much else besides from other manufacturers and will then assemble the various components to create the finished aircraft. Very few products today are produced like a statue that is made by pouring molten bronze into a cast--the ultimate single product. But to hold therefore that every composite product is a tie-in, subject to the hostile scrutiny to which antitrust law still subjects tie-ins, would place industry under a vast antitrust cloud, and has been rejected. In Johnson v. Nationwide Industries, Inc., 715 F.2d 1233 (7th Cir.1983), for example, we held that a condominium and a contract for the provision of management services to the condominium owner were a single product, so that the owner could not complain, at least under antitrust law, that the developer who had sold him the condominium had forced him as a condition of being allowed to purchase it to agree to buy the developer's management services as well. See also Foster v. Maryland State Savings & Loan Ass'n, 590 F.2d 928, 932-33 (D.C.Cir.1978). 7 The problem is that there is no obvious way of deciding whether a product is a single product or an assemblage of components. The practice has been to classify a product as a single product if there are rather obvious economies of joint provision, as in the left-shoe-right-shoe example. See Principe v. McDonald's Corp., 631 F.2d 303, 309-11 (4th Cir.1980); Sullivan, Handbook of the Law of Antitrust 449 (1977); Comment, A New Approach to the Legality of Franchising Tie-Ins, 129 U.Pa.L.Rev. 1267, 1293 (1981). Although this approach seems to take what would otherwise be a matter of defense and make its absence a threshold requirement of the offense, it does serve to screen out many silly cases. A different but related approach was taken recently in the Jefferson Parish case (decided after argument in our case), where the Supreme Court held that products are separate for tie-in purposes if there are separate markets for each product. See 104 S.Ct. at 1562-63. The link to the older view is that if there are not separate markets, this is evidence that the economies of joint provision are overwhelming. 8 The test of Jefferson Parish disposes handily of the shoe example, but could be thought to place decisions such as Johnson under a cloud, since there are separate markets for condominiums and for real estate management services. Only time will tell how far the "separate markets" approach of Jefferson Parish will be pushed. There are separate markets for sugar and for sugarless breakfast cereals, but it would be surprising to find that a sugary cereal was a tie-in (sugar tied to cereal), assuming the seller refused to sell a sugar-free version. The belt example also becomes problematic under the separate-markets approach. Belts are rarely sold without buckles; but surgical operations are even more rarely sold without anesthesia (held in Jefferson Parish to have been tied to the hospital's operating rooms). There may be overwhelming economies of joint provision for most customers and yet enough customers with idiosyncratic demands to encourage small markets tailored to their needs to emerge, as has happened with ornamental belt buckles. The separate market for ornamental buckles resembles the separate market for anesthesia, which exists because a patient can contract separately with the surgeon and with the anesthesiologist. We doubt that, even after Jefferson Parish, belts are tie-ins of buckles to straps; yet we cannot be sure where the separate-markets test will lead. 9 Still, we are reasonably confident that under that test as under the older, more intuitive test a building is a single product and not a tie-in of the walls, floors, roof, windows, and so forth; for most of these components are not sold in separate markets, though some are. And as Walters' counsel acknowledged helpfully at argument, it does not matter whether, as with hobby kits of various sorts (and even motorcycles, see Flaminio v. Honda Motor Co., 733 F.2d 463 at 465 (7th Cir.1984)), the manufacturer, instead of assembling the components himself at the factory, ships the unassembled components and the actual assembly is done by the customer or by a dealer (as was the case here, before Morton took over the dealer function). It is enough if the end product is a single product; and a single building is a single product. 10 All this is more or less common ground among the parties and we have gone over it at such length only to dispel any impression that a tie-in case about prefabricated buildings must be based on a claim that the prefabricated parts were tied to each other. That is not Walters' claim. Its claim is that the Morton name, the Morton trademark, is the tying product and the building, the kit of prefabricated building components, is the tied product. The difficulty with this argument is that a product and its name are inseparable. It is one thing to say that a manufacturer of copying machines who requires his customers to buy from him the copying paper that is used in the machines is conditioning the sale of the machines on the customer's purchase of a distinct product; it is quite another to say that General Motors lets you use the name Buick on condition that you buy the car to which the name is attached. That is a fantastical description of the transaction, and the cases reject the proposition that a tie-in claim can be based on it. See, e.g., California Glazed Products, Inc. v. Burns & Russell Co., 708 F.2d 1423, 1430 (9th Cir.1983); Dart Industries, Inc. v. Plunkett Co., 704 F.2d 496, 500 (10th Cir.1983); Hamro v. Shell Oil Co., 674 F.2d 784, 788 (9th Cir.1982); Krehl v. Baskin-Robbins Ice Cream Co., 664 F.2d 1348, 1352-54 (9th Cir.1982); Redd v. Shell Oil Co., 524 F.2d 1054, 1056-57 (10th Cir.1975); Kugler v. AAMCO Automatic Transmissions, Inc., 460 F.2d 1214 (8th Cir.1972). The only appellate case we can find in which such a claim was accepted is Warriner Hermetics, Inc. v. Copeland Refrigeration Corp., 463 F.2d 1002, 1015-16 (5th Cir.1972). To accept it would be to impose in the name of antitrust a regime of compulsory licensing of trademarks--an absurd project. Moreover, since a trademark that denotes a product is rarely licensed apart from the product--and was not in this case--the separate-markets test of Jefferson Parish is not satisfied. 11 However, some cases, including several in this circuit, do treat as tying products trademarks that name not a product manufactured by the trademark's owner but a service which he provides to consumers through a system of franchised retail outlets; the tie-in consists of requiring franchisees, as a condition of being allowed to use the trademark, to buy distinct products supplied by the franchisor. See, e.g., Photovest Corp. v. Fotomat Corp., 606 F.2d 704, 722 (7th Cir.1979); Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., 585 F.2d 821, 834 (7th Cir.1978); Milsen Co. v. Southland Corp., 454 F.2d 363, 365 (7th Cir.1971); Siegel v. Chicken Delight, Inc., 448 F.2d 43 (9th Cir.1971); Susser v. Carvel Corp., 332 F.2d 505 (2d Cir.1964), cert. dismissed, 381 U.S. 125, 85 S.Ct. 1364, 14 L.Ed.2d 284 (1965). The trademark is analytically separable from the tied product, so there is not the same absurdity in treating the trademark as a tying product as there is when the trademark is simply the name of the alleged tied product, as in our example of the Buick name and the Buick automobile. "Chicken Delight," in contrast, was the name of a fast-food franchise operation, not the name of a product; and the franchisor, the owner of the "Chicken Delight" mark, manufactured none of the things (which included mixes, fryers, and packaging supplies) that it required its franchisees to buy from it as a condition of their being allowed to use the name. Siegel v. Chicken Delight, Inc., supra, 448 F.2d at 48 n. 4. It was a "case of a franchise system set up not to distribute the trade-marked goods of the franchisor, but ... to conduct a certain business under a common trade-mark or trade name." Id. at 48 (footnote omitted). The name and the tied products thus were separable in a way that the name Buick and the car sold under that name are not. Or so at least it can be argued; for the Chicken Delight line of cases is not universally delegated. See, e.g., Principe v. McDonald's Corp., supra, 631 F.2d at 309; Baker, The Supreme Court and the Per Se Tying Rule: Cutting the Gordian Knot, 66 Va.L.Rev. 1235, 1315-17 (1980). And the emphasis in the Supreme Court's recent decision in Jefferson Parish on the importance of proving that the owner of the tying product has real market power may doom the franchise trademark cases, as they mostly involve highly competitive retail industries, such as the fast-food business. But we shall not have to get into the broader questions here. All we shall have to decide is whether Morton Building, the name the defendant has given to its prefabricated farm buildings, is more like Chicken Delight or more like Buick--bearing in mind that since this question was decided on summary judgment we cannot answer it in Morton's favor if there is any material fact in dispute. 12 Morton manufactures some building parts, such as sheet-metal walls and wooden corner posts, buys others from other manufacturers, and ships the unassembled parts to retail outlets for assembly into finished buildings on the farmer's property. The parts when assembled make a rather austere building, even for a farm utility building, and often the dealer will customize the building by adding things that are not part of Morton's kit. A Morton Building is therefore quite likely to contain some parts not supplied by Morton, just as an automobile might have some accessories that had not been supplied by the manufacturer, such as a dealer-supplied car alarm. But whether few or many farmers embellish their Morton Buildings, the inference that Morton really is engaged in manufacturing buildings is inescapable, and we think this fact defeats any effort to separate its name from the product that it is alleged to be tying to it. Maybe Walters is capable, as it alleges, of building from parts it gets elsewhere a farm building identical to the Morton Building; but it does not follow that it can put Morton's name on it, when Morton wants to manufacture the Morton Building itself. If Morton were just selling blueprints for a building and it told the people it sold them to, "You must buy your bathroom faucets from us if you want to use the blueprints," then it might be possible to separate design and product. But if you happen to be in the business of selling faucets, a dealer cannot force you to let him sell, under your name, faucets he gets elsewhere. 13 To summarize, we hold that there was no tie-in because there were no separate products (or services) tied together. But we emphasize again that it is not alleged that Morton tied accessories to the building kits that it sold, so we need not decide at what point prefabricated building parts cease to be a single product. 14 The next question is whether Morton violated the per se rule against resale price maintenance. Several times each year Morton would advertise special deals for its buildings. The advertising was directed to the consuming public and mentioned special prices at which consumers could buy the buildings from dealers such as Walters, listing them by name. Morton gave dealers a discount from the wholesale price to make it easier for the dealers to offer consumers the special retail price that Morton had advertised. It was important to Morton that dealers not charge a higher price than the advertised price, because if they did Morton's advertising would lack credibility--indeed, would be deceptive and create ill will. So, according to Walters' affidavits, Morton took various steps to see that its dealers sold its buildings at no more than the advertised price. These steps included threatening the dealers with termination if they went above that price, offering if they did to sell directly to the public at the advertised price, and checking up on the dealers to see whether they were charging more. Walters also charges that Morton made it hard for the dealers to comply with its desire that they sell at the advertised price by giving them a smaller discount from the wholesale price than the difference between the regular retail price and the advertised price. 15 The usual form of resale price maintenance, the form that invited condemnation from the Supreme Court in Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911), involves setting a minimum price below which dealers may not sell rather than a maximum price above which they may not sell. It is minimum price fixing that creates the analogy to a dealers' cartel upon which the per se rule against resale price maintenance rests. Although Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968), extended the rule of Dr. Miles to a scheme of maximum resale price maintenance, the continued vitality of Albrecht is in doubt after Continental T.V., Inc. v. GTE Sylvania Inc., supra, held that assigning dealers exclusive territories is not unlawful per se. The newspaper dealers in Albrecht had exclusive territories, and putting a ceiling on their prices was, as Justice Stewart pointed out in his dissenting opinion, a way for the Herald Company to prevent the dealers from exploiting the monopoly power that territorial exclusivity gave them. See 390 U.S. at 169, 88 S.Ct. at 881. But at a time when exclusive territories, at least if imposed through a sale contract (as in Albrecht ) rather than an agency contract, were illegal per se, as had been held a year before Albrecht in United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967) (the decision overruled by Sylvania ), it was not a good defense of maximum price fixing that it was ancillary to a system of exclusive territories. Now that assigning exclusive territories to dealers is lawful if reasonable, a manufacturer-imposed price ceiling intended to limit the power that exclusive territories give dealers to raise prices regardless of what other dealers in the manufacturer's product are charging may also be lawful in some cases--a proposition suggested by Professor Pitofsky in The Sylvania Case: Antitrust Analysis of Non-Price Vertical Restrictions, 78 Colum.L.Rev. 1, 16 n. 59 (1978), and supported by the First Circuit's decision in Eastern Scientific Co. v. Wild Heerbrugg Instruments, Inc., 572 F.2d 883, 885-86 (1st Cir.1978). The defendant in that case had a lawful system of exclusive territories but allowed its dealers to sell outside their territories provided they did not sell below a certain price. This provision was held lawful because it allowed a little more competition than if the territories had been airtight. The justification for maximum prices within exclusive dealer territories is even more straightforward: it forces price within the territories closer to the competitive level. See Easterbrook, Maximum Price Fixing, 48 U.Chi.L.Rev. 886, 890 n. 20 (1981). It is true that, after Sylvania was decided, Albrecht was cited approvingly in Arizona v. Maricopa County Medical Soc'y, 457 U.S. 332, 347-48, 102 S.Ct. 2466, 2474-76, 73 L.Ed.2d 48 (1982) (4-3 decision), but only as supporting the proposition that horizontal price fixing is not saved from condemnation merely because the prices fixed are maximum rather than minimum prices, see id. at 348 and n. 18, 102 S.Ct. at 2475 and n. 18, a matter of no significance here. Indeed, the footnote can be read as supporting a distinction between horizontal and vertical maximum price fixing. 16 But we need not explore this maze further. Since the lawfulness of Morton's territorial exclusivity has not been adjudicated, it is premature to conclude that maximum price fixing would be a lawful incident to it. We mention the point to avoid creating the impression that we consider maximum price fixing always and everywhere unlawful (unless horizontal, in which event it is indeed illegal per se, as held in Maricopa, 457 U.S. at 348, 102 S.Ct. at 2475). That seems to us an open question after Sylvania. But even if we assume that maximum price fixing would be unlawful in this case, as it might well be if Morton's exclusive territories were unlawful (an issue not before us on this appeal), we must still determine whether the conduct attested to in Walters' affidavits is price fixing. The special master thought that Morton's efforts to compel its dealers to comply with the advertised price, and the dealers' responses, did not create an agreement to adhere to that price; and without agreement there can be no violation of section 1 of the Sherman Act. The picture painted by Walters' affidavits is one not of agreement but of Morton's unsuccessful efforts to force Walters to agree. However, Supreme Court pronouncements which appear still to be authoritative despite the considerable changes in the Court's interpretation of the antitrust laws in recent years indicate that when a seller goes beyond announcing a policy of refusing to deal with price cutters (or in this case price gougers) and of cutting off those dealers who do not comply with the announced policy, it has, for section 1 purposes, conspired with any dealer who complies with the policy. See, e.g., United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960). Here some dealers did comply; and Walters' affidavits if true indicate that Morton went beyond simply announcing its policy and terminating noncompliers, and used persuasion and policing to obtain that compliance, as in Yentsch v. Texaco, Inc., 630 F.2d 46, 49-55 (2d Cir.1980). See also Monsanto Co. v. Spray-Rite Service Corp., --- U.S. ----, 104 S.Ct. 1464, 1471-73, 79 L.Ed.2d 775 (1984). 17 But there is a more fundamental ground, alluded to by the special master, which requires that we uphold the dismissal of this part of the complaint. Walters concedes as it must that it is perfectly lawful for a manufacturer to advertise his product to the ultimate consumer, whether or not he sells directly to the consumer, and to mention in that advertising the retail price of the product--the only price the consumer is interested in. The law of products liability has come to recognize what economists and businessmen have long known--that manufacturers are in a direct economic relationship with the ultimate consumers of their products even if they are not in privity with them. See, e.g., Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 412-16, 161 A.2d 69, 99-101 (1960). This insight cannot be limited to tort law. The demand for a manufacturer's product depends significantly on the retail price; the lower that price is (other things being equal), the more his product will be demanded by consumers and therefore by the dealers who are his immediate purchasers. Hence the manufacturer has a vital interest in the retail price. Maybe that interest is not great enough to allow him to place a cap on the retail price but Walters concedes that it is great enough to allow the manufacturer to advertise a retail price. 18 This concession is very damaging to Walters. If it is lawful to advertise a retail price, it should be lawful to take at least the minimum steps necessary to make that advertising beneficial. It would be pretty embarrassing for a manufacturer who had advertised a special retail price to be bombarded by complaints from consumers that dealers were refusing to sell to them at that price. Such refusals would make the advertising misleading and might even expose the manufacturer to legal sanctions under the Federal Trade Commission Act or counterpart state regulations. So if retail price advertising by manufacturers is to be feasible the manufacturer must be allowed to take reasonable measures to make sure the advertised price is not exceeded. These measures include trying to persuade dealers to adhere to the advertised price and checking around to make sure they are adhering. These are the respects in which Morton is alleged to have gone beyond the simple announcement of policy and refusal to deal with noncompliers that would be permissible even if it were trying to get its dealers to adhere to its suggested retail prices across the board. See Monsanto Co. v. Spray-Rite Service Corp., supra, 104 S.Ct. at 1469. They are the minimum steps that Morton had to take if its advertised price was to have any value at all, and they are therefore lawful. Cf. Bruce Drug, Inc. v. Hollister, Inc., 688 F.2d 853, 859-60 (1st Cir.1982). 19 It is true that dicta in Butera v. Sun Oil Co., 496 F.2d 434, 437 (1st Cir.1974), based on Pearl Brewing Co. v. Anheuser-Busch, Inc., 339 F.Supp. 945 (S.D.Tex.1972), suggest that for a supplier to condition a cut in the wholesale price to his dealers on their agreeing to pass it on to the consumer by lowering their prices, which is a little like what is alleged here, is a form of price fixing. But the more recent decisions hold to the contrary. See Lewis Service Center, Inc. v. Mack Trucks, Inc., 714 F.2d 842, 846 (8th Cir.1983); AAA Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 705 F.2d 1203, 1206 (10th Cir.1982). And in none of these cases did the manufacturer have the additional argument that Morton has here: Morton had to pressure its dealers to lower price in order to maintain the credibility of its price advertising--a form, by the way, of constitutionally protected speech. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). 20 All this is not to say that simply by advertising retail prices a manufacturer gets the right to fix retail prices. If Morton had tried to fix its dealers' prices at times when it was not advertising special deals at specific prices, its efforts would not be privileged just because at other times it did advertise retail prices. Nor could Morton require its dealers to comply with minimum prices. And therefore it could not forbid them to sell at less than the advertised prices. See Lehrman v. Gulf Oil Corp., 464 F.2d 26, 39-40 (5th Cir.1972). But it did not do any of these things. 21 Even if what Morton did was price fixing, Walters could not challenge it. A private plaintiff can complain only of an antitrust injury. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977). It is not enough that the plaintiff would not have been injured but for the defendant's alleged violation of the antitrust laws; the injury must be the sort of thing that the antitrust laws are intended to forbid. The plaintiff in Brunswick was complaining that the defendant's acquisition of a rival would enable the rival to become a more efficient company, and therefore a more effective competitor of the plaintiff. The Supreme Court held that the plaintiff could not complain about the injury. It would have been different if the complaint was that the acquisition would lead to the rival's engaging in predatory pricing or some other method of competition with the plaintiff that the antitrust laws are intended to prevent. 22 There is nothing esoteric about the Brunswick rule. It is the application to antitrust law of venerable principles of tort causation illustrated by Gorris v. Scott, 9 L.R. Ex.-125 (1874). The plaintiff's animals, which were being transported on the deck of the defendant's ship, were washed overboard in a storm. They would have been saved if the deck had been penned, as required by statute. But since the purpose of the statute was to prevent contagion, not drowning, the defendant was not liable. Similarly, although the plaintiff in Brunswick would not have been hurt if there had been no acquisition, the acquisition did not hurt it in the way that the framers of the antitrust laws had in mind. In the present case, even if Morton did violate the prohibition against fixing its dealers' prices, the only harm to Walters came from the fact that competing dealers (or Morton itself) would lower their prices to consumers if Walters did not. There is no suggestion that the lower prices would have been below cost; they would have been lawful prices. This case thus is stronger for the defendant than Gorris. The loss of the animals was a pure social cost, while the loss to Walters from lawful price competition was a gain to consumers. Walters will not be heard to complain about having to meet lawful price competition, which antitrust law seeks to encourage, merely because the competition may have been enabled by an antitrust violation. See MCI Communications Corp. v. American Tel. & Tel. Co., 708 F.2d 1081, 1161 (7th Cir.1983); Page, Antitrust Damages and Economic Efficiency: An Approach to Antitrust Injury, 47 U.Chi.L.Rev. 467, 491 (1980). 23 The remaining antitrust claim that the district court dismissed is that the tie-in, resale price maintenance, and exclusive-territories allegations, taken together, make out an independent violation of section 1 of the Sherman Act, because they establish a scheme to destroy Morton's independent dealers in order that Morton could take over the retail sale of its buildings, as eventually it did. Our conclusion that there was no tie-in and no resale price maintenance may seem to eliminate all possibility that there was an unlawful scheme of greater compass than the territorial exclusivity, which is not before us on this appeal. But it is possible to recast Walters' argument as follows. Even if there was no tie-in in a technical sense and no resale price maintenance in the sense in which it is a per se violation of section 1, still when one combines what Morton is alleged to have done (such as forbidding its dealers to obtain, from other manufacturers, any Morton Building components that Morton supplies, and squeezing the dealers by forcing them to sell buildings at the low prices that Morton advertised and to swallow part of the discount) with its alleged motive in doing so of driving the dealers out of business, an unreasonable restraint of trade can be inferred. And it meets the threshold requirement of section 1 that there be a contract, combination, or conspiracy, since Morton managed to draw some of its (doomed) dealers into its scheme to eliminate recalcitrants such as Walters. 24 It does not add much, though, to call the scheme an "aggregation of trade restraints." The term goes back to Timken Roller Bearing Co. v. United States, 341 U.S. 593, 598, 71 S.Ct. 971, 974, 95 L.Ed. 1199 (1951), and as used there, and later in United States v. Sealy, Inc., 388 U.S. 350, 354, 357, 87 S.Ct. 1847, 1851, 1852, 18 L.Ed.2d 1238 (1967), just meant that whether a restriction was illegal per se might depend on what other restrictions the defendant had imposed. A later decision in the interminable Sealy litigation, Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., supra, 585 F.2d at 827-28, used a similar approach to conclude that a number of separate provisions in the Sealy licensing agreement, each innocuous in itself, had been combined in such a way as to perpetuate the division of markets that the Supreme Court had held was a per se violation of section 1. All that Walters is asking us to do here is to decide whether its challenge to Morton's system of marketing raises a triable issue under the Rule of Reason. 25 It is helpful to recall that at common law a conspiracy was unlawful if the conspirators used unlawful means to a lawful end or lawful means to an unlawful end. United States v. Addyston Pipe & Steel Co., 85 Fed. 271, 293 (6th Cir.1898), modified and aff'd, 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136 (1899). This is a pretty encompassing definition, and if Walters cannot bring itself within either branch it is unlikely to have a cause of action under section 1. The means, we have seen, were not unlawful, unless the exclusive territories are unlawful; but if they are, Walters can get all the relief it seeks in the trial of the retained claim in the district court. Predatory pricing, alleged in Coleman Motor Co. v. Chrysler Corp., 525 F.2d 1338, 1345 (3d Cir.1975), on which Walter relies as a case where the goal of the alleged conspiracy was vertical integration into retail distribution, is not alleged here. 26 The end that Walters alleges is that Morton wanted to take over the retail function; in the terminology of industrial organization, it wanted to integrate forward. But vertical integration is not an unlawful or even a suspect category under the antitrust laws: "Firms constantly face 'make-or-buy' decisions--that is, decisions whether to purchase a good or service in the market or to produce it internally--and ordinarily the decision, whichever way it goes, raises no antitrust question." University Life Ins. Co. of America v. Unimarc Ltd., 699 F.2d 846, 852 (7th Cir.1983). Morton manufactures some of the building components that it includes in the kits that it sells. It is therefore vertically integrated, because it could buy those components on the market instead. There is nothing abnormal about this. If Morton employs its own typists it is vertically integrated, because it could farm out its typing work to independent contractors. When a corporation that has been using a law firm to handle a particular type of litigation hires a lawyer to do the litigation in-house, it is vertically integrating into litigation services. When a law firm that has been buying a billing service from a computer time-sharing firm buys its own computer to perform the service, it is vertically integrating into computer services. Vertical integration is a universal feature of economic life and it would be absurd to make it a suspect category under the antitrust laws just because it may hurt suppliers of the service that has been brought within the firm. 27 A common type of vertical integration is for a manufacturer to take over the distribution of his product. Some manufacturers use wholesalers; others, for example the U.S. automobile manufacturers, do their own wholesaling and thus are vertically integrated into wholesale distribution. Some firms, IBM for example, sell their products directly to the public, rather than through independent retail outlets, and thus are vertically integrated into retail distribution. It was not improper for Morton to want to deal directly with the consuming public rather than indirectly through dealers such as Walters. Of course if it set about to do this in an unlawful fashion it would not be immune from liability just because it had an unexceptionable end in view. But that is only because, as we have noted, a conspiracy to attain a lawful end by unlawful means is actionable. 28 We just said that vertical integration is not an improper objective. But this puts the matter too tepidly; vertical integration usually is procompetitive. If there are cost savings from bringing into the firm a function formerly performed outside it, the firm will be made a more effective competitor. Moreover, the option of vertical integration places competitive pressure on the firm's suppliers and buyers, who know that if they charge too much for their services the firm may decide to perform them itself. It thus increases competition in the markets for those services. Morton claims that the spiraling costs of building materials forced it to cast about for methods of economizing on its operations, and one method it hit on was to do its own retailing. This is a common motivation for vertical integration. True, some economists believe that monopolistic firms might integrate vertically in order to deny supplies or outlets to competitors, or to make it more costly for new firms to enter the market (because they would have to enter at more than one level of production or distribution), or to facilitate price fixing with their competitors. See 3 Areeda & Turner, Antitrust Law paragraphs 725-26 (1978). But nothing of this kind is suggested here. Walters does allege that Morton has a big name in the prefabricated farm buildings market, but there is no indication that this is a meaningful economic market that might be worth monopolizing, or that Morton's purpose in integrating into retail distribution was to make life harder for its competitors. Its object was to make more money by reducing the cost of retail distribution, not by coercing or excluding (or for that matter colluding with) its own competitors, whoever they may be, or discouraging potential competitors. Indeed Walters' tie-in claim is premised on the ready availability, from other manufacturers, of the building parts that Morton sells in kits from which Morton Buildings are put together. This shows that Morton has no monopoly. 29 The final substantive question is whether the district court was correct to dismiss Walters' claim that Morton breached its duty under Wisconsin law to deal fairly with a party with which it had a contractual relationship. The dismissal was on the merits; and if it were not for the fact that Walters and Morton are of diverse citizenship and that the amount in controversy between them exceeds $10,000, there would be a question whether retention of this state-law claim after all the federal claims except the challenge to Morton's use of exclusive territories were dismissed before trial was a proper exercise of pendent jurisdiction; for the relationship between the pendent claim and the only retained federal claim is somewhat distant. 30 Walters does not charge Morton with a breach of contract, in part because Walters has been unable to produce a copy of any written contract though it claims there was one. The charge sounds in tort. But we share the special master's perplexity as to what tort is being charged. In Wisconsin as in many other states it is tortious for an insurance company to refuse to pay an insured his claim if the company has no colorable basis for its refusal. See, e.g., Kanzush v. Badger State Mutual Casualty Co., 103 Wis.2d 56, 61-62, 307 N.W.2d 256, 259-60 (1981); Anderson v. Continental Ins. Co., 85 Wis.2d 675, 687, 271 N.W.2d 368, 374 (1978). But the tort requires a contractual claim so incontestable that the refusal to honor it must have been in bad faith; here, if Walters has any contractual claim at all, it is so tenuous that Walters is not asserting it. Also the tort has not been extended, in Wisconsin anyway, beyond the insurance setting, where the disparity in resources between insurer and insured has seemed to make the bad-faith breaking of contracts especially reprehensible. Indeed, even in that setting the tort has been defined narrowly, as we pointed out recently in A.W. Huss Co. v. Continental Casualty Co., 735 F.2d 246, 249-254 (7th Cir.1984). 31 Fiduciaries have a duty of fair dealing, of course; and in Estate of Chayka, 47 Wis.2d 102, 176 N.W.2d 561 (1970), this duty was extended to spouses executing a joint will--a special relationship resembling a fiduciary one. But it is a big step from this to reading into every commercial relationship a duty of fair dealing not cabined by contractual provisions, express or implied. Statutes in many states, including Wisconsin, give dealers and franchisees special protections against termination. See Wis.Stat. Sec. 135.03. But Walters does not rely on any statute; it relies on a common law tort concept that is not yet the law in Wisconsin. The common law of Wisconsin does not make the franchisor a fiduciary of his franchisees. Murphy v. White Hen Pantry Co., 691 F.2d 350, 355 (7th Cir.1982). 32 This completes our discussion of the matters presented in the appeal, but before ending we want to make an observation about the procedure employed by the district court in this case. Although the use of special masters to assist federal district judges in complex litigation is not only authorized but indispensable to the effective operation of the federal courts under current workload conditions, its scope is limited by Fed.R.Civ.P. 53(b), as follows: "A reference to a master shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it." The reference in this case was proper only if required by "some exceptional condition," since it was not made to assist a jury and did not call for an accounting or a damage calculation; and we doubt that this demanding condition was met. Cf. Bennerson v. Joseph, 583 F.2d 633, 642 (3d Cir.1978). In this more than in any other circuit we must be alert to the danger of overusing special masters, for it was overuse by one of our district judges that led the Supreme Court to issue a writ of mandamus in La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957). Judge La Buy "stated he did not know when he could try the case 'if it is going to take this long.' He asked if the parties could agree 'to have a Master hear' it. The parties ignored this query and the next day [Judge La Buy] entered the orders of reference sua sponte. The orders declared that the court was 'confronted with an extremely congested calendar' and that 'exception [sic] conditions exist for this reason' requiring the references. The cases were referred to the master 'to take evidence and to report the same to this Court, together with his findings of fact and conclusions of law'.... [A]ll parties objected to the references ...." Id. at 253-54, 77 S.Ct. at 312 (footnote omitted). 33 In this case the district judge, also on his own initiative and also because he did not have time for a long trial, and hoping that the special master's report would (as it did) enable the number of issues to be reduced for trial, referred summary judgment proceedings to a special master who prepared a report that the judge then adopted without independent analysis. Since the judge did not refer the case to the special master for trial, and only one of the parties (Walters) objected, the delegation of judicial power was less extreme than in La Buy. But that does not mean it was in conformity with Rule 53(b). Although the materials submitted in connection with the motion for summary judgment ran to several thousand pages, this unfortunately is not unusual in antitrust and other complex litigation; yet it would be contrary to Rule 53(b), as it has been understood and interpreted against a background of concern with the cost and delay created by using masters, to refer summary judgment motions in antitrust cases routinely to masters. See 9 Wright & Miller, Federal Practice and Procedure Sec. 2605 (1971); cf. MCI Communications Corp. v. American Tel. & Tel. Co., supra, 708 F.2d at 1169 n. 125. 34 But unless the delegation of judicial power to the master in this case exceeded the bounds of Article III of the Constitution, it is not reversible error, because Walters has not asked us to reverse the district court's judgment on the ground that the reference to the master violated Rule 53(b). See, e.g., Hayes v. Foodmaker, Inc., 634 F.2d 802, 803 (5th Cir.1981) (per curiam); 9 Wright & Miller, supra, Sec. 2606. The objection was made in the district court but has been abandoned on appeal, so we would not revive it unless we thought the reference was beyond the district court's subject-matter jurisdiction. The district judge delegated a reporting and recommending power rather than the power of decision; it was he, not the master, who entered judgment. True, the master's function was to evaluate a long documentary record and determine whether it presented genuine issues of material fact; the opinion he wrote was indistinguishable in form from a judicial opinion; and the district judge approved that opinion rather than write his own. Walters therefore has a valid gripe about being hustled off to an adjudicative process conducted--and at rather too leisurely a pace--by a private practitioner. If Walters had preserved its objection on appeal we might well reverse, and we would have to do so whether it had or not if we thought the procedure was so improper as to be beyond the powers granted federal judges by the Constitution, statutes, and rules--which means, practically speaking, so egregious as to warrant reversal even though the issue was not preserved on appeal. We do not think the procedure was quite that egregious, and we naturally are reluctant to prolong the length and increase the expense of this proceeding (already six years old) by vacating the reference on our own initiative. But we trust that in the future the use of special masters in antitrust and other complex litigation will be conducted with greater sensitivity to the problems of excessive delegation of judicial power that such use can create and to the precise language of Rule 53(b), which as we have pointed out requires in a case such as this a showing of "some exceptional condition" justifying the reference to a master. 35 AFFIRMED. 36 SWYGERT, Senior Circuit Judge, concurring in the judgment. 37 Walters raises four issues on appeal: (1) whether Morton's trademark was illegally tied to the sale of its building material packages; (2) whether Morton forced Walters to maintain illegally fixed retail prices on periodically advertised specials; (3) whether Walters states a claim under section 1 of the Sherman Act for Morton's alleged predatory scheme to destroy its independent dealers; and (4) whether Morton owed Walters a duty of good faith. I agree with the majority that the district court's disposition of these four issues should be affirmed, although I will address only the first two. 38 In regard to the tie-in claim, the record can admit of only one conclusion: there was no tie-in because there were not two separate products, see Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, 507, 89 S.Ct. 1252, 1260, 22 L.Ed.2d 495 (1969). Under any of the analyses adopted by the courts, the Morton trademark did not constitute a product separate from the Morton building material package. See, e.g., Jefferson Parish Hospital District No. 2 v. Hyde, --- U.S. ----, 104 S.Ct. 1551, 1562-63, 80 L.Ed.2d 2 (1984) (separate products exist where there are separate markets for each product); Principe v. McDonald's Corp., 631 F.2d 303, 309 (4th Cir.1980), cert. denied, 451 U.S. 970, 101 S.Ct. 2047, 68 L.Ed.2d 349 (1981) (franchise package constitutes single product where the "aggregation is an essential ingredient of the franchised system's formula for success"); Siegel v. Chicken Delight, Inc., 448 F.2d 43, 48-49 (9th Cir.1971), cert. denied, 405 U.S. 955, 92 S.Ct. 1172, 31 L.Ed.2d 232 (1972) (trademark used under "business format system" or "rent a name" franchise constitutes separate product from articles used in production of system but trademark used under a "distribution format system" is integrated with the product or products that it represents). 39 Walters' retail price maintenance claim is hardly worth discussion. Morton legally could advertise its products for direct sales to consumers at any price it wished. Walters admitted that he was faced with the choice of meeting the price advertised by Morton or making no sales. Thus, any actions by Morton to enforce sales at the advertised price were unnecessary and could not have caused Walters a compensable antitrust injury. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 487-89, 97 S.Ct. 690, 696-697, 50 L.Ed.2d 701 (1977). 40 Unfortunately, I cannot concur in much of the discussion contained in the majority opinion, not because that discussion may not state correct principles of law, but because I believe it is dicta--dicta that might tend to influence and prejudice decisions in cases yet unborn but which may come to this court for review. It could be argued that the discussion of matters other than those actually raised by this appeal has a certain peripheral relevance, but such relevance, if it exists at all, is unnecessary for an understanding and treatment of this case. It is axiomatic, of course, that we should confine our discussion to the legal principles applicable to the case at hand. Shadows cast beyond the facts of a particular case tend to confuse the trial judges and haunt our own appellate court--inhibiting our freedom to decide future cases according to what we perceive to be the applicable law at that time.	{ "pile_set_name": "FreeLaw" }
127 S.Ct. 2032 (2007) COUNTY BANK OF REHOBOTH BEACH, DELAWARE, and Main Street Service Corporation, petitioners, v. Jaliyah MUHAMMAD. No. 06-907. Supreme Court of United States. April 16, 2007. Petition for writ of certiorari to the Supreme Court of New Jersey denied.	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION MAY 03 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT TRACEY J. TERRY, No. 17-36053 Plaintiff-Appellant, D.C. No. CV16-5990-JPD v. MEMORANDUM* NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant-Appellee. Appeal from the United States District Court for the Western District of Washington James P. Donohue, Magistrate Judge, Presiding Argued and Submitted April 12, 2019 Seattle, Washington Before: FLETCHER, CALLAHAN, and CHRISTEN, Circuit Judges. Plaintiff-Appellant Tracey J. Terry appeals the district court’s order affirming the administrative law judge’s (ALJ’s) denial of her application for Disability Insurance Benefits and Supplemental Security Income. We have * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s order affirming an ALJ’s disability determination de novo and will uphold an ALJ’s decision unless it contains legal error or is not supported by substantial evidence. Garrison v. Colvin, 759 F.3d 995, 1009–10 (9th Cir. 2014). Here, we affirm in part, reverse in part, and remand to the agency for further consideration to address the errors identified below.1 1. The ALJ Must Evaluate Terry’s Headaches. The ALJ concluded that Terry’s headaches constituted a severe impairment but omitted the symptoms and limitations caused by her headaches from the residual functional capacity (RFC) determination, without providing a reason for doing so. The ALJ carefully summarized Terry’s medical evidence—including her headaches—before stating that Terry’s testimony “concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons stated below.” In support of her negative credibility finding, the ALJ compared Terry’s testimony and self-reporting to the objective medical evidence. The ALJ thoroughly addressed and rebutted Terry’s testimony and medical evidence regarding her two other severe impairments but the ALJ’s decision did 1 Because the parties are familiar with the facts and arguments on appeal, we do not recite them here. 2 not address Terry’s headaches when analyzing Terry’s credibility and weighing the medical evidence. An ALJ “may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each.” Garrison, 759 F.3d at 1015 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)). Because the ALJ did not provide any specific reasons for discrediting Terry’s testimony regarding the symptoms and limitations caused by her headaches, this omission from the RFC was error. Id. at 1011 (“the ALJ determines a claimant’s residual functional capacity . . . based on all the relevant medical and other evidence in [the] case record. If a claimant has multiple impairments, they are all included in the assessment.” (internal quotation marks and citations omitted)). Finally, “we cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (quoting Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001)). Nor may we affirm the decision under the rubric of harmless error, because the vocational expert’s response to the ALJ’s second hypothetical shows that the omission of Terry’s headache symptoms and limitations from her RFC was not “irrelevant to the ALJ’s ultimate disability conclusion.” Id. at 1055. 3 2. Terry’s Remaining Claims Fail. The ALJ otherwise provided specific, clear, and convincing reasons for rejecting Terry’s testimony about her symptoms and limitations, and provided germane reasons for rejecting the lay testimony Terry offered in support of her claims. Additionally, the ALJ provided specific and legitimate reasons supported by substantial evidence to discount the medical opinions Terry addresses in her appeal. While the ALJ’s failure to: (1) ensure that Terry viewed the CD containing her medical evidence prior to her hearing; and (2) inform Terry of her right to cross-examine the vocational expert at the hearing were procedural errors under 20 C.F.R. § 404.916(b)(3) (2017), these errors were harmless because Terry fails to show that either error prevented the admission or evaluation of any material evidence. AFFIRMED in part, REVERSED in part, and REMANDED. Each party shall bear their own costs. 4	{ "pile_set_name": "FreeLaw" }
Order filed February 10, 2015 In The Fourteenth Court of Appeals ____________ NO. 14-15-00063-CV ____________ TIMOTHY JONES AND VELMA JONES, Appellants V. FROST BANK, Appellee On Appeal from the 113th District Court Harris County, Texas Trial Court Cause No. 2014-48702 ABATEMENT ORDER We have determined that this case is appropriate for referral to mediation, an alternative dispute resolution process. See Tex. Civ. Prac. & Rem. Code §§ 154.021—.073. Mediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation or settlement. Id.§ 154.023(a). Any communication relating to the subject matter of the appeal made by a participant in the mediation proceeding is confidential. See Tex. Civ. Prac. & Rem. Code § 154.053. After mediation, the parties shall advise the court whether the case settled, or whether any further negotiation efforts are planned. 1 The court ORDERS the appeal ABATED for a period of sixty days and refers the underlying dispute to mediation. Any party may file a written objection to this order with the clerk of this court within 10 days of the date of this order. See Tex. Civ. Prac. & Rem. Code § 154.022. If this court finds that there is a reasonable basis for the objection, the objection shall be sustained and the appeal reinstated on this court’s active docket. See id. The court ORDERS that the mediation be held within 60 days of the date of this order. The court ORDERS that all parties or their representatives with full settlement authority shall attend the mediation process, with their counsel of record. The court FURTHER ORDERS that within 48 hours of completion of the mediation, the parties shall advise the court in writing whether the case settled. If mediation fully resolves the issues in the case, the court ORDERS the parties to file a motion to dismiss the appeal, other dispositive motion, or a motion for additional time to file the dispositive motion, within 10 days of the conclusion of the mediation. The court ORDERS the appellate timetable in this case suspended for 60 days from the date of this order. The appeal is ABATED, treated as a closed case, and removed from this court’s active docket for a period of sixty days. The appeal will be reinstated on this court’s active docket after sixty days. Any party may file a motion stating grounds for reinstating the appeal before the end of the sixty-day period. Any party may also file a motion to dismiss the appeal or other dispositive motion at any time. Any party may file a motion to extend the abatement period for completion of mediation or to finalize a settlement. PER CURIAM 2 RULES FOR MEDIATION i. Definition of Mediation. Mediation is a process under which an impartial person, the mediator, facilitates communication between the parties to promote reconciliation, settlement or understanding among them. The mediator may suggest ways of resolving the disputes, but may not impose his own judgment on the issues for that of the parties. ii. Agreement of Parties. Whenever the parties have agreed to mediation they shall be deemed to have made these rules, as amended and in effect as of the date of the submission of the dispute, a part of their agreement to mediate. iii. Consent to Mediator. The parties consent to the appointment of the individual named as mediator in their case. The Mediator shall act as an advocate for resolution and shall use his best efforts to assist the parties in reaching a mutually acceptable settlement. iv. Conditions Precedent to Serving As Mediator. The mediator shall not serve as a mediator in any dispute in which he has any financial or personal interest in the result of the mediation. Prior to accepting an appointment, the Mediator shall disclose any circumstances likely to create a presumption of bias or prevent a prompt meeting with the parties. In the event that the parties disagree as to whether the Mediator shall serve, the Mediator shall not serve. v. Authority of the Mediator. The Mediator does not have the authority to decide any issue for the parties, but will attempt to facilitate the voluntary resolution of the dispute by the parties. The Mediator is authorized to conduct joint and separate meetings with the parties and to offer suggestions to assist the parties achieve settlement. If necessary, the Mediator may also obtain expert advice concerning technical aspects of the dispute, provided that the parties agree and assume the expenses of obtaining such advice. Arrangements for obtaining such advice shall be made by the Mediator or the parties, as the Mediator shall determine. vi. Commitment to Participate in Good Faith. While no one is asked to commit to settle their case in advance of mediation, all parties commit to participate in the proceedings in good faith with the intention to settle, if at all possible. vii. Parties Responsible for Negotiating Their Own Settlement. The parties understand that the Mediator will not and cannot impose a settlement in their case and agree that they are responsible for negotiating a settlement acceptable to them. The Mediator, as an advocate for settlement, will use every effort to facilitate the negotiations of the parties. The Mediator does not warrant or represent that settlement will result from the mediation process. viii. Authority of Representatives. PARTY REPRESENTATIVES MUST HAVE AUTHORITY TO SETTLE AND ALL PERSONS NECESSARY TO THE DECISION TO SETTLE SHALL BE PRESENT. The names and addresses of such persons shall be communicated in writing to all parties and to the Mediator prior to the mediation. ix. Time and Place of Mediation. The Mediator shall fix the time of each mediation session. The mediation shall be held at the office of the Mediator, or at any other convenient location agreeable to the Mediator and the parties, as the Mediator shall determine. x. Identification of Matters in Dispute. Prior to the first scheduled mediation session, each party shall provide the Mediator with confidential information in the form requested by the Mediator setting forth its position with regard to the issues that need to be resolved. 3 At or before the first session, the parties will be expected to produce all information reasonably required for the Mediator to understand the issues presented. The Mediator may require any party to supplement such information. xi. Privacy. Mediation sessions are private. The parties and their representatives may attend mediation sessions. Other persons may attend only with the permission of the parties and with the consent of the Mediator. xii. Confidentiality. Confidential information disclosed to a Mediator by the parties or by witnesses in the course of the mediation shall not be divulged by the Mediator. All records, reports or other documents received by a mediator while serving in that capacity shall be confidential. The Mediator shall not be compelled to divulge such records or to testify in regard to the mediation in any adversary proceeding or judicial forum. Any party that violates this agreement shall pay all fees and expenses of the Mediator and other parties, including reasonable attorney's fees incurred in opposing the efforts to compel testimony or records from the Mediator. The parties shall maintain the confidentiality of the mediation and shall not relay on, or introduce as evidence in any arbitral, judicial, or other proceeding: a) views expressed or suggestions made by another party with respect to a possible settlement of the dispute; b) admissions made by another party in the course of the mediation proceedings; c) proposals made or views expressed by the Mediator; or d) the fact that another party had or had not indicated willingness to accept a proposal for settlement made by the Mediator. xiii. No Stenographic Record. There shall be no stenographic record made of the mediation process. xiv. No Service of Process at or near the Site of the Mediation Session. No subpoenas, summons, complaints, citations, writs or other process may be served upon any person at or near the site of any mediation session upon any person entering, attending or leaving the session. xv. Termination of Mediation. The mediation shall be terminated: a) by the execution of a settlement agreement by the parties; b) by declaration of the Mediator to the effect that further efforts at mediation are no longer worthwhile; or c) after the completion of one full mediation session, by a written declaration of a party or parties to the effect that the mediation proceedings are terminated. xvi. Exclusion of Liability. The Mediator is not a necessary or proper party in judicial proceedings relating to the mediation. Neither Mediator nor any law firm employing Mediator shall be liable to any party for any act or omission in connection with any mediation conducted under these rules. xvii. Interpretation and Application of Rules. The Mediator shall interpret and apply these rules. xviii. Fees and Expenses. The Mediator's daily fee shall be agreed upon prior to mediation and shall be paid in advance of each mediation day. The expenses of witnesses for either side shall be paid by the party producing such witnesses. All other expenses of the mediation, including fees and expenses of the Mediator, and the expenses of any witness and the cost of any proofs or expert advice produced at the direct request of the Mediator, shall be borne equally by the parties unless they agree otherwise. 4 Fourteenth Court of Appeals MEDIATORS REPORT Date: ____________________________ Christopher A. Prine, Clerk 301 Fannin, Room 245 Houston, TX 77002 Re: Appellate number: Case style: In compliance with this court’s order dated ________________________________, I conducted a mediation proceeding in this case on _____________________________. The mediation [ did / did not ] result in a [ full / partial ] resolution of the matters in dispute. To my knowledge, further negotiation efforts [ are / are not ] planned. The parties and mediator have agreed that the mediator shall be paid as follows: $_______________________ paid by ______________________ $_______________________ paid by ______________________ $_______________________ paid by ______________________ $_______________________ paid by ______________________ Mediator: Address: Telephone E-Mail Address Return immediately after mediation to: 14th Court of Appeals; 301 Fannin, Room 245, Houston, Texas 77002 (713) 274-2800 5	{ "pile_set_name": "FreeLaw" }
843 F.2d 1384 In re Snyder (Myron) NO. 87-1149 United States Court of Appeals,First Circuit. FEB 19, 1988 1 Appeal From: D.Mass. 2 VACATED AND REMANDED.	{ "pile_set_name": "FreeLaw" }
14 So.3d 207 (2007) JAMES SHERIDAN KNIGHT v. STATE. No. CR-06-1838. Court of Criminal Appeals of Alabama. August 23, 2007. Decision of the Alabama Court of Criminal Appeals without opinion Dismissed.	{ "pile_set_name": "FreeLaw" }
FILED United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS September 5, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court JA M ES E. V A N H OU TEN , Plaintiff-Appellant, No. 07-3167 v. District of Kansas CARRIE M ARLETT, Unit Team (D.C. No. 06-CV-3308-SAC) M anager, El Dorado Correctional Facility, in her official and individual capacity; DEBBIE BRATTON, Deputy W arden, El Dorado Correctional Facility, in her personal capacity, Defendants-Appellees. OR D ER AND JUDGM ENT * Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges. James E. Van Houten, a pro se Kansas state prisoner, brought a 42 U.S.C. § 1983 complaint against two prison officials, asserting that 24-hour confinement in a “no-contact cell” violated his constitutional rights. The district court dismissed * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). This case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10 th Cir. R. 32.1. Van Houten’s claims for failure to demonstrate exhaustion of administrative remedies. W e vacate and remand. On April 27, 2006, M r. Van Houten was placed into a no-contact cell, allegedly for brawling with one M r. Harris. M r. Van Houten was isolated until M ay 27, 2006. On September 27, 2006, M r. Van Houten filed a grievance with the prison unit team, which was dismissed as untimely under K an. Admin. Regs. § 44-15-101b. M r. Van Houten filed a 42 U.S.C. § 1983 claim with the district court November 8, 2006, alleging violations of the Eighth and Fourteenth Amendments. On N ovember 30, 2006, the district court ordered M r. Van H outen to show cause that the case should not be dismissed because his untimely grievance failed to properly exhaust administrative remedies. [R. Doc. 3 at 2] M r. Van Houten objected to dismissal, arguing that Kan. Admin. Regs. § 44-15-101b allows one year to file grievances. The district court disagreed with M r. Van Houten’s statutory interpretation and dismissed the case for failure to state a claim for relief on April 17, 2006. [R. Doc. 6 at 1–2.] M r. Van Houten moved to appeal this order on M ay 22, 2007, which the district court allowed as a good-cause extension of the normal 30-day deadline to file notice, as permitted by Rule 4(a)(5) of the Federal Rules of Appellate Procedure. [R. Doc. 10 at 1–2.] -2- Until January 2007, this Circuit held that exhaustion was a pleading requirement in prison lawsuits such that “a complaint that fails to allege the requisite exhaustion of remedies is tantamount to one that fails to state a claim upon which relief may be granted.” Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1210 (10th C ir. 2003) (quotation omitted). This is no longer good law, however. After the district court ordered M r. Van Houten to prove exhaustion, but before the case w as dismissed, the Supreme Court overruled this Circuit’s interpretation in Jones v. Bock, 127 S.Ct. 910, 915 (2007). Exhaustion is now an affirmative defense, and “inmates are not required to specially plead or demonstrate exhaustion in their complaints.” Id. at 921. In “rare cases” a district court can “conclude from the face of the complaint that a prisoner has not exhausted his administrative remedies and that he is without a valid excuse.” Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007). A court may raise the exhaustion question sua sponte by concluding that a complaint is unexhausted under Bock, but none of the district court’s orders demonstrate awareness that exhaustion is no longer a pleading requirement. W e must therefore vacate the district court’s order dismissing M r. Van Houten’s complaint. See Freeman v. Watkins, 479 F.3d 1257, 1260 (10th Cir. 2007). W e VAC ATE the district court's order dismissing M r. Van Houten’s complaint, and R EM A N D to the district court for further consideration in -3- accordance with Jones v. Bock. M r. Van Houten also filed a motion to submit additional evidence, consisting of citations to judicial decisions he deems relevant to the merits of his case. The motion is DENIED because no such motion is necessary. M r. Van Houten is free to cite pertinent authority if and when the district court reaches the merits of his claim. Entered for the Court, M ichael W . M cConnell Circuit Judge -4-	{ "pile_set_name": "FreeLaw" }
293 F.3d 447 Joyce WILSON, as Administrator of the Estate of Jerome Leroy Mozee; and Val Wilson, Jr., as Co-Administrator of the Estate of Jerome Leroy Mozee, Appellees,v.CITY OF DES MOINES, IOWA, a municipal corporation; Joseph Morgan, individually and in his official capacity as a Des Moines Police Officer; and Terry Mitchell, individually and in his official capacity as a Des Moines Police Officer, Appellants. No. 01-2906SI. United States Court of Appeals, Eighth Circuit. Submitted: February 14, 2002. Filed: June 7, 2002. Alfredo Parrish, argued, Des Moines, IA, for appellee. Harry Perkins, III, argued, Guy R. Cook, argued, Des Moines, IA (Mark Godwin, on the brief), for appellants. Before: BYE, HEANEY, and RICHARD S. ARNOLD, Circuit Judges. Richard S. ARNOLD, Circuit Judge. 1 On April 19, 1999, Jerome Mozee was shot and killed by two Des Moines police officers, Joseph Morgan and Terry Mitchell. Mr. Mozee's estate sued the City of Des Moines and the officers, alleging that the officers used excessive force while pursuing and attempting to restrain Mr. Mozee in violation of 42 U.S.C. § 1983. Both officers moved for summary judgment on the basis of qualified immunity. The District Court denied these motions. The United States Supreme Court then decided Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). After this case was decided, the officers filed a joint supplemental motion for summary judgment, again based on qualified immunity.1 They argued that Saucier clarified the applicability of qualified immunity to excessive-force claims, and that according to that decision, the Court should determine that their actions and beliefs were reasonable under the circumstances, and that qualified immunity applied. Additionally, the officers argued that any disputed factual issues no longer existed, and that the Court should grant summary judgment in their favor. The District Court denied this motion. The officers appeal. 2 The officers present three arguments on appeal: first, that the District Court erred by failing to hold that they were entitled to qualified immunity because their belief that Mr. Mozee was armed was reasonable, though mistaken; second, that there are no longer any material factual disputes in the record because of the testimony of a police-procedure expert, Frank Saunders; and third, that the District Court erred in failing to evaluate each of the qualified-immunity claims of the officers individually. We affirm the decision of the District Court. We do so primarily because differences in the two officers' testimony about what happened during the crucial last moments of their encounter with Mr. Mozee raise a genuine issue of material fact about the reasonableness of what the officers did. I. 3 The following description of the events leading to Mr. Mozee's death is based on undisputed facts. The disputed factual issues are more fully examined later in our discussion. Around midnight on April 19, 1999, Mr. Mozee was involved in a car accident on the river bridge on Southeast 14th Street in Des Moines, Iowa. After the accident, he got out of his car and was seen attempting to assault the female passenger of the other vehicle involved in the accident. At this time, Officers Morgan and Mitchell were riding in a jail wagon near this location. Information about the accident and the altercation was broadcast over the police radio. The following information was transmitted: 4 Attention all officers: The subjects are now at Southeast 14th on the river bridge, Southeast 14th on the river bridge. There's a black male adult beating a female, and he's 1032 with a handgun.2 5 Hearing Trans. 28. The officers responded to the dispatcher's call. 6 When they arrived at the scene, the officers saw Mr. Mozee running north on the bridge. Both officers got out of their vehicle and began pursuit of Mr. Mozee. They both drew their weapons and chased him into an unlit field located close to the river bridge. Both officers continuously commanded Mr. Mozee to show them his hands. He did not do so. Following his pursuit in the field, Mr. Mozee stopped, turned to face the officers, and looking directly at Officer Mitchell, uttered obscenities. J.A. 60. The officers fired their weapons seven times, killing Mr. Mozee.3 He was not armed. II. 7 We review the denial of a motion for summary judgment based on qualified immunity de novo. Vaughn v. Ruoff, 253 F.3d 1124, 1127 (8th Cir.2001). Our review is limited to questions of law. We will affirm the denial of summary judgment on the issue of qualified immunity if a genuine issue of material fact exists whether a reasonable officer could have believed his actions to be lawful. In the present case, the officers contend that there are no genuine issues of material fact. We disagree and affirm the District Court's decision. 8 The Supreme Court in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), recently clarified the manner in which a court should analyze a summary-judgment motion on the basis of qualified immunity in the context of an excessive-force claim. In Saucier, the Court stated that the first question that should be considered is whether: "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier, 533 U.S. at 201, 121 S.Ct. 2151. If there is no constitutional violation, then the grant of summary judgment based on qualified immunity is appropriate. If the court determines that a constitutional right was violated, then the Court stated that the next question that should be considered is "whether the right was clearly established." Id. 9 Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), established that force is "contrary to the Fourth Amendment" if that force is "excessive under objective standards of reasonableness." Saucier, 533 U.S. at 201-02, 121 S.Ct. 2151. However, in Saucier, the Court went on to state that the law must clearly put the officer on notice that his actions are unreasonable. Id. at 202, 121 S.Ct. 2151. If the law does not do so, and the officer reasonably (even if wrongly) believes that his conduct is reasonable under the circumstances, summary judgment based on qualified immunity is appropriate. Qualified immunity can apply even in the case of an officer's mistaken belief, if that belief is reasonable. Id. at 206, 121 S.Ct. 2151. 10 Saucier was decided after the District Court denied the officers' first motions for summary judgment. In denying those motions, the Court determined that because Officer Mitchell and Officer Morgan had given inconsistent testimony regarding the events leading to Mr. Mozee's death, material questions of fact existed with regard to the reasonableness of their actions. Therefore, summary judgment was inappropriate. The Court specifically listed eight issues in dispute: 11 what information was dispatched to the defendant officers about the incident involving Mozee; what information was reported to the defendant officers at the incident scene; who reported the information to them; what words were exchanged between Mozee and the defendant officers; what distances separated Mozee and each of the defendant officers while he fled and when he stopped and turned; whether Mozee comported himself as if he was concealing a weapon; whether Mozee stopped and turned towards the officers in a shooting stance; and whether either or both officers saw a firearm or believed Mozee had a firearm. 12 Applt. Addendum 3-4. 13 Later, when ruling on the officers' supplemental motion for summary judgment, the District Court had the benefit of Saucier. The Court analyzed the applicability of qualified immunity by using the two-part inquiry established in Saucier. It first determined that if all factual disputes were to be resolved in favor of the person alleging the injury, Mr. Mozee, then a constitutional right was violated, namely the constitutional guarantee of freedom from unreasonable seizures. Applt. Addendum 8. The Court then proceeded to the second part of the inquiry, whether this right was clearly established, and more specifically, whether the officers had notice that their conduct, the fatal shooting of an unarmed suspect, was unlawful under the circumstances presented in this case. 14 The law is clear that when a police officer is in pursuit of a suspect, force, including deadly force, may sometimes be used to apprehend that suspect. See Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). 15 [I]f the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning is given. 16 Id. at 11-12, 105 S.Ct. 1694. However, under the Fourth Amendment, this force may not be excessive. Graham, 490 U.S. at 397, 109 S.Ct. 1865. Any force used by a police officer must be "objectively reasonable in light of the facts and circumstances confronting [him] ...." Id. (internal quotations omitted). Because the reasonableness of the officers' beliefs and actions are dependent upon Mr. Mozee's actions in the unlit field, we begin our discussion by examining the facts in the record before this Court. 17 In denying the officers' first motions for summary judgment, the District Court noted eight issues in dispute. We do not believe that all of these issues merit a thorough discussion. We will not discuss the disputes concerning what information the officers heard broadcast over the police radio, the verbal warnings that the officers received when they arrived at the scene, and who provided these warnings. It seems likely that these discrepancies are minor and immaterial. We will focus our discussion, instead, on the actions taken by the officers and Mr. Mozee while in the unlit field, immediately before the shooting. 18 When the officers began their pursuit of Mr. Mozee, they were some distance behind him.4 Both officers testified that at no time while they were pursuing Mr. Mozee were they able to see his right hand. Officer Morgan testified that Mr. Mozee was running "with his right hand hidden in the front of his pants." J.A. 57. Officer Morgan was on Mr. Mozee's left-hand side during the pursuit. He stated that although he was unable to see Mr. Mozee's right hand while chasing him, he might have seen his right arm. J.A. 57. Officer Morgan also testified that Mr. Mozee was wearing a coat, but that the coat was open. J.A. 57. The description that Officer Morgan provided is consistent with the manner in which an individual would comport himself if he were trying to conceal a weapon. 19 Officer Mitchell also testified that he was unable to see Mr. Mozee's right hand while they were in pursuit of him in the unlit field. Officer Mitchell was also on Mr. Mozee's left-hand side and approximately twenty feet behind him during the chase.5 J.A. 93. However, his description of Mr. Mozee varies somewhat from the description offered by Officer Morgan. J.A. 94. Officer Mitchell testified that Mr. Mozee's coat was closed while he was running, although it was not zipped. He also stated that Mr. Mozee had the jacket "pushed across his body," and his left hand looked like it was holding his jacket. J.A. 94. He testified that he did not know if "he actually had the coat in his hand ... to keep it closed, or if it was just his arm, by the nature of how he had it, was keeping his other arm underneath the jacket." J.A. 94. 20 While in the field, the officers continuously instructed Mr. Mozee to show his hands. Officer Morgan testified that he yelled "let me see your hands" throughout the pursuit. J.A. 58. Officer Mitchell testified that not only did he instruct Mr. Mozee to show him his hands, he also stated, "[i]f you don't get on the ground, I'm going to shoot you," when he was approximately twelve feet behind Mr. Mozee. J.A. 66. Moreover, Officer Mitchell indicated that he also might have used some profanity while in the field. Officer Mitchell acknowledged that Mr. Mozee did not make any verbal threats toward him at this time. 21 The record does not indicate a specific time during the pursuit when the verbal threats were made by Officer Mitchell or when the derogatory term was used. J.A. 67. Additionally, when Officer Morgan was asked whether Officer Mitchell used any profanity during Mr. Mozee's pursuit, Officer Morgan stated that he could not recall whether any such language was used. J.A. 58. Because it is disputed whether Officer Mitchell actually threatened or cursed at Mr. Mozee while in the field, and if he did use such language, at what point it occurred, we believe that the District Court should submit this issue to a jury. A closer examination of these facts could provide some explanation for Mr. Mozee's use of profanity toward Officer Mitchell, and help determine what level of threat Mr. Mozee actually posed to the officers. 22 At the end of the chase, Mr. Mozee stopped and turned toward the officers. The manner in which he turned seems to us to be the most important fact in the series of events that led to Mr. Mozee's death, as it reveals the most about the level of threat he posed to the officers. 23 Officer Morgan testified that when he was approximately fifteen to twenty feet behind Mr. Mozee, Mr. Mozee slowed, stopped, reached into his waistband, turned around in a "Weaver stance,"6 and said to Officer Mitchell, "Fuck you, motherfucker." J.A. 60. He further testified that he saw a black, medium-sized handgun, with a black barrel. When questioned about Mr. Mozee's stance when turning, Officer Morgan originally testified that he saw the handle of the gun in Mr. Mozee's waistband, and that when Mr. Mozee stopped and turned, the gun was in his right hand. At that time, Officer Morgan could not recall what Mr. Mozee was doing with his left hand. He stated, "I don't know if he had a second hand on there or not." J.A. 108. However, Officer Morgan testified at his deposition that "[a]s time goes on, when I have time to think about it, there [were] the two hands that came up on the gun." J.A. 62. Officer Morgan then fired his weapon four times. He testified that he believed Officer Mitchell fired first, but that Mr. Mozee never fired. J.A. 63. 24 Officer Mitchell also described the manner in which Mr. Mozee stopped and turned toward the officers. The details that he provides differ somewhat from those described by Officer Morgan. Officer Mitchell testified that when Mr. Mozee stopped and turned, he was approximately twenty-five feet away. In his initial statement, Officer Mitchell described the manner in which Mr. Mozee turned by simply saying, "as his arms were coming out, I just shot." J.A. 73. However, Officer Mitchell later testified that when Mr. Mozee turned and squared off to him, Mr. Mozee had his right hand at his waistband and was "grabbing at [something] from his waistband." J.A. 65. Officer Mitchell stated that after Mr. Mozee reached into his waistband, he "came out in a two-handed shooting stance," and that his arms "were not in any position other than coming out at me in a shooting position." J.A. 65, 73. 25 Though each officer testified that Mr. Mozee turned around in a shooting stance, their testimony is not consistent. In Officer Morgan's initial statement, he testified that Mr. Mozee had only one hand on the gun. Additionally, Officer Mitchell initially stated that he shot at Mr. Mozee as Mr. Mozee's arms were extending. Officer Mitchell also testified that he could not state if Mr. Mozee's arms were fully extended when he fired upon Mr. Mozee. The officers' attorney recognized these inconsistencies at the hearing to reconsider the summary judgment motion, though he characterized these as "minor ... [in] nature." Hearing Trans. 33. He stated, "there may be some slight differences as to what they actually saw in terms of the nature and the extent of the movement, either how quick it was, what hand was moving in what direction, whether it was coming up, [or] whether it was going down...." Hearing Trans. 32-33. Moreover, there is evidence that Mr. Mozee was shot by the officers in the palm of his hand. Hearing Trans. 37. That is difficult to square with the alleged "Weaver" or shooting stance described in each of the officers' testimony. 26 The officers also contend that there are no longer any disputed factual issues because of the testimony of Frank Saunders, a police-procedure expert. Mr. Saunders testified that, with the exception of firing upon Mr. Mozee, the officers acted correctly given the circumstances with which they were presented. However, Mr. Saunders also stated that the use of force by the officers was "totally unwarranted." J.A. 178. Although he testified that both officers gave an almost "mirror image ... description of a stance that's taught to police on a regular basis," he also acknowledged the variation in the officers' testimony as to the manner in which Mr. Mozee turned to face the officers. When asked about the accuracy of the events that led to the fatal shooting of Mr. Mozee, he stated, 27 I would agree with everything except I'm not sure I can interpret what you're saying with his arm outreached. There's been different descriptions even between the two officers as to his movements, but he did stop and turn. In other words, he did not continue to flee. 28 J.A. 170. Mr. Saunders also suggested that the officers' belief that Mr. Mozee was armed was not objectively reasonable under the circumstances. He stated that the situation "had not reached the point of using deadly force," and that the officers made a "subjective decision based on something they thought they saw but, in actuality, did not." J.A. 179. Therefore, we disagree with the officers' argument that Mr. Saunders served to clarify any or all disputed factual issues in their favor. 29 The two appellant officers also argue that their cases should be analyzed separately, so far as the issue of qualified immunity is concerned. This of course is true. All of the facts in the summary-judgment record that will be admissible at trial need to be considered with respect to each officer's claim of qualified immunity. This does not mean, however, as appellants seem to think, that in considering the position of Officer Mitchell, for example, only his version of events is to be looked to. The jury will presumably hear both officers' versions of events, and consider them as to both defendants. In general, the chance that an unimpeached witness, even an interested one, will be disbelieved is not enough to defeat a motion for summary judgment. Here, however, there are internal contradictions within one of the officers' testimony, as well as some contradictions between the two officers' testimony. In addition, there is some physical evidence inconsistent with the defendants' account of the incident, and the expert testimony of the police-procedure expert. All of this evidence should be considered, and we have considered it, with respect to each defendant. After doing so, we are convinced, for the reasons previously given, that they were not entitled to judgment as a matter of law on the issue of qualified immunity, and that the District Court correctly denied their motion for summary judgment. III. 30 Because of the internal discrepancies and variations in the officers' testimony, among other things, there remain factual issues in dispute that prohibit a grant of summary judgment. The current record does not conclusively establish the reasonableness of the officers' actions or beliefs. Therefore, we agree with the District Court that summary judgment on the basis of qualified immunity is inappropriate. We affirm. Notes: 1 This case has been transferred from the Hon. Charles R. Wolle, United States District Judge for the Southern District of Iowa, to the Hon. Ronald E. Longstaff, Chief Judge of that Court 2 1032 is a common police code used in some parts of the country to inform officers that a suspect is armed. According to Officer Morgan's testimony, this indicates that the suspect is carrying an automatic weapon. J.A. 54 3 Mr. Mozee was shot once in the palm of his hand, five times in his chest, and one bullet did not enter Mr. Mozee's body. Hearing Trans. 37, 43-44 4 Various distances were provided by the officers. These should be more closely examined during the trial on the merits 5 Officer Mitchell testified that at one point while he was chasing Mr. Mozee, he was around twelve feet behind him. He testified that he chose to slow down in order to maintain a safe distance 6 Officer Morgan indicated that Mr. Mozee's hands were clasped together and held directly straight out in front of his body	{ "pile_set_name": "FreeLaw" }
263 S.W.2d 444 (1953) STATE ex rel. STATE HIGHWAY COMMISSION v. WILLIAMS et al. No. 7170. Springfield Court of Appeals. Missouri. December 2, 1953. 445 Robert L. Hyder, Minor C. Livesay, Jefferson City, Royle Ellis, Cassville, for appellant. Sater & Monroe, Monett, for respondents. McDOWELL, Presiding Judge. This is a suit in condemnation brought in the Circuit Court of Barry County, March 7, 1950, to acquire right-of-way for a supplementary state highway. The cause was transferred, by change of venue, to Newton County, where it was tried before a jury, resulting in a verdict and judgment for $800 damages in favor of defendants. Plaintiff appealed. The petition seeks to condemn 3.76 acres of defendants' land for the purpose of widening an existing road which crosses defendants' 100 acre tract of land running from the northwest to the southeast, a distance of 2.369 feet. The new right-of-way is to be 80 feet wide. The commissioners appointed by the court to assess damages to defendants' land made a report finding the damages to be $500. Defendants filed exception to the report of commissioners and asked to have the damages assessed by a jury trial. In our opinion we will refer to appellant as plaintiff and to the respondents as defendants, being the positions they occupied in the lower court. Plaintiff's first assignment of error complains that the trial court erred in admitting the testimony of witness, Cal Carney, concerning the negotiations for sale of property not involved herein. An examination of the record shows that plaintiff did not complain of this matter in the motion for new trial and, therefore, the trial court was not given an opportunity to pass upon this allegation of error. 42 V.A.M.S. Supreme Court Rule 3.23 provides: "Allegations of error, in order to be preserved for appellate review, must be presented to the trial court in a motion for new trial; * ." Taylor v. Baldwin, 362 Mo. 1224, 247 S.W.2d 741, 754; Handlan v. Handlan, 360 Mo. 1150, 232 S.W.2d 944, 946; Coleman v. Crescent Insulated Wire & Cable Co., 350 Mo. 781, 168 S.W.2d 1060, 1066. This point, therefore, has been waived by plaintiff's failure to save and include such matter in its motion for new trial. The second allegation of error complains of the giving of Instructions numbered 1 and 2 because: They state statements of an abstract proposition of law not here in issue, and unduly impress upon the jury the fact that privately owned property is being taken for public use and that compensation must be paid; and the giving to the jury of two methods of arriving at the measure of damages was confusing and had a tendency to allow the jury to, by their verdict, award double damages. Instruction numbered 1 reads as follows: "The court instructs the jury that the plaintiff State Highway Commission, has, by law, the right to locate its highway over the property of the defendants and thereby take their property without their consent 446 and against their will; the law also declares that private property shall not be taken or damaged without just compensation to be paid to the owners; and what in this cause constitutes such a just compensation is a question to be decided by your verdict. "In passing upon this question, if the jury find from the evidence that the defendants' property in question is damaged, then the jury should allow the defendant: "First, the fair reasonable market value of the property actually taken by the plaintiff from the defendants' land, as shown by the evidence. "And second, for such damages, if any, to the remainder of defendants' said land caused by the establishment, building and maintenance of the highway in question, over the defendants' land, which you may find from the evidence, defendant has sustained thereby; and the total amount found on account of these two items, less any special benefits, the amount of which has been proved, if any, as defined in other instructions herein, as will accrue to defendants' remaining property, will be your verdict for the defendants in this case, if your verdict in this case is for the defendants." Instruction numbered 2 reads as follows: "The Court instructs the Jury that by this proceeding, the plaintiff, the State of Missouri, has actually appropriated and taken from the defendants herein 3.76 acres of land out of the tract of 100 acres, more or less, described in evidence, and the easements described in evidence. "The Jury are further instructed that under the constitution of this state private property cannot be taken for public use without just compensation being paid to the owner. "The Plaintiff, the State of Missouri, has appropriated and taken for public use from said tract of 100 acres, more or less, described in evidence and from the owners thereof 3.76 acres all of which was the property of the defendants herein, the owners of said tract. "It is your duty therefore, under the law, to assess the just compensation to be paid to said defendants, owners of said tract, for the taking of their property by the plaintiff. "The just compensation to which the defendants are entitled by law is the difference in the fair market value of the defendants whole tract immediately before and immediately after the appropriation of the property taken by the plaintiff, the State of Missouri, in view of the uses to which the property was susceptible of being put. "Said just compensation may be paid in money or in special benefits, to the remainder of defendant's land; or part in money and part in special benefits. "In assessing said just compensation, you will take into account special benefits, if any, as defined in other instructions, that have been proved by the plaintiff." Section 512.160, par. 2 RSMo 1949, V.A. M.S. provides: "No appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, and materially affecting the merits of the action." Plaintiff's first contention, under this assignment of error, is that the instructions contained statements of an abstract proposition of law not in issue, and unduly impress upon the jury the fact that privately owned property is being taken for public use and that compensation must be paid. To sustain this contention plaintiff cites State ex rel. State Highway Commission v. Huddleston, Mo.App., 52 S.W.2d 33. This case was decided by the Springfield Court of Appeals July 22, 1932. The instruction before the court was: "'The Court instructs the jury that under the Constitution of the State, private property cannot be taken for public use without just compensation being paid to the owner. The plaintiff in this case has taken a strip of land through defendant's lands for the purpose of a highway. Your verdict therefore must be for the defendants, 447 unless you find and believe from the evidence that special benefits will be derived by the defendants due to the appropriation of said strip of land and the construction of a highway thereon and that such benefits will equal or exceed the value of the strip of land taken and the damages, if any, sustained to the portion of defendants' land not taken.'" It was contended in this case that this instruction stated an abstract proposition of law upon a question not put in issue by the pleadings or evidence, and tended to prejudice and mislead the jury. The court held that it was reversible error for the reason that the statements in the instruction were abstract propositions of law about matters not in issue and constituted reversible error. The court, in passing upon the matter, made this statement: "This instruction undertakes to cover the whole case in submitting the defendants' interest to the jury. We think it is prejudicial to the plaintiff, and especially so in view of evidence that was offered over the objection of the plaintiff." Plaintiff cites Kleinlein v. Foskin, 321 Mo. 887, 13 S.W.2d 648 under this same contention. In this case we think the proper rule of law is declared by the Supreme Court. The court made the following statement of law 13 S.W.2d on page 654 of the opinion: "It is not claimed by appellant that the instruction misstates the issues presented and made by the pleadings; on the contrary, the statement in the instruction (to the effect that defendant had not pleaded contributory negligence on the part of plaintiff in the answer, and therefore no such issue was before the jury for their consideration and deliberation) is true both in fact and in law. It seems to us that the most that can be said of the statement in the instruction is that (perhaps) the same amounts to a mere abstract statement of law. But it is a general and recognized rule of law that the giving of an abstract instruction will not warrant, or constitute ground for, a reversal of a judgment, unless it appears that thereby the complaining party was injured or prejudiced, or that the jury could have been misled or confused." The court cited a number of cases in announcing this rule which support the law as stated. Plaintiff cites State ex rel. State Highway Commission of Missouri v. Baumhoff, 230 Mo.App. 1030, 93 S.W.2d 104, 111. This case holds that parties desiring better form of instructions should have offered instructions clarifying what they deem defective or confusing in instruction complained of. The principle questions decided in this case were questions involving damages. It has long been the law that each case must be decided upon the facts of the particular case. Our Supreme Court, in the case of State ex rel. State Highway Commission of Missouri v. Haid, 332 Mo. 606, 59 S.W.2d 1057, 1058, passed upon an instruction similar to the instructions in the case at bar complained of. The court, in this case, stated: " * * `This instruction, in effect, told the jury that the state highway commission "is authorized and has the right at law to condemn the strip of land in question, to be used as part of the public road in question, through the exceptors' farm, and can take same in this proceeding without the consent and against the will of the exceptor; but you are further instructed that said plaintiff is required to pay therefor the fair and reasonable damages to these exceptors for taking their land for public use as a right of way for the road in question, and it is in your province to determine said damages, if any according to the law and rules as set out in other instructions in this case."' "The complaint made against this instruction is that the part of the instruction which told the jury that plaintiff was `authorized and had a right to take defendants' land without their consent and against their will' is an abstract proposition of law and for that reason should not have been given. 448 In each of the four cases cited by relator in an attempt to show conflict, the trial court refused to give an instruction containing an abstract proposition of law. We held in those cases that it was not error to refuse such an instruction, but we did not hold that it would be reversible error to give such an instruction. The doctrine of this court is that the giving of an abstract instruction will not constitute reversible error unless it appears that the complaining party has been prejudiced, or that the jury could have been misled thereby. Kleinlein v. Foskin, 321 Mo. 887, 900, 13 S.W.2d 648, and cases cited. "The highway commission is the complaining party here. It is apparent that an instruction which told the jury that the highway commission had a lawful right to take a strip of land in question without the consent and against the will of the owners could not have possibly prejudiced or injured the commission. It would seem more reasonable to assume that an instruction informing the jury that the commission had a lawful right to take what it was attempting to take would have tended to help rather than harm the commission. Relator does not point to any decision of this court condemning an instruction similar to the one under consideration. * " The Kansas City Court of Appeals in State ex rel. State Highway Commission v. Cook, Mo.App., 161 S.W.2d 691, 695, approved the following instruction: "'The court instructs the jury that by this proceeding the plaintiff, the State of Missouri, has actually appropriated and taken from the defendants Pearl Holt, John Holt, Leona Street and William Street 3.85 acres of land out of the tract of 100 acres, more or less, described in evidence and also the easements described in evidence. "'The jury are further instructed that under the constitution of this state private property cannot be taken for public use without just compensation being paid to the owner. "'The plaintiff, the State of Missouri, has appropriated and taken for public use from said tract of 100 acres, more or less, described in the evidence and from the owners thereof, 3.85 acres, all of which was the property of the said Pearl Holt, John Holt, Leona Street and William Street, the owners of said tract. "'It is your duty therefore, under the law, to assess the just compensation to be paid to said defendant owners of said tract for the taking of their property by the plaintiff. "'The "just compensation" to which the defendants are entitled by law is the difference in the fair market value of the defendants' whole tract immediately before and immediately after the appropriation of the property taken by the plaintiff, the State of Missouri, in view of the uses to which the property was susceptible of being put'" Following the law as laid down by the Supreme Court of this state that the giving of an abstract instruction will not constitute reversible error unless it appears that the complaining parties have been prejudiced, we find against plaintiff on the first contention made herein. We see no reason, under the facts in this case, which would lead us to believe that the statements made in the instructions would prejudice the jury or mislead them. There is no contention that the statements are not true as to the law and as to the facts. Therefore, we hold there was no reversible error committed because of the giving of abstract propositions of law in the two instructions. The second contention made under this allegation of error is that two methods of arriving at the measure of damages was confusing and had a tendency to allow the jury, by their verdict, to award double damages. There is no contention that each of the methods submitted did not properly declare the law. We find that under the Civil Code, Section 512.160 RSMo 1949, V.A.M.S., which provides that appellate courts shall not reverse a case unless the error materially affects the rights of the party that the errors complained of do not constitute reversible error. 449 We are wholly unable to find, from a reading of the two instructions complained of, how the jury could have been confused or how it would have been possible for them to have awarded double damages. This contention is denied. The third assignment of error complained of is the giving of instruction numbered 3 for the reason that said instruction does not correctly define special benefits enjoyed by land abutting on a highway improvement. Instruction numbered 3 reads as follows: "The court instructs the jury that special benefits as mentioned in these instructions do not mean general benefits, if any, which the defendant derives in common with land owners in the vicinity from the widening of the road in question, but does mean benefits that are the direct and peculiar benefits, if any, which result to the remainder of the land of defendant not appropriated by plaintiff, and unless the plaintiff has shown special benefits as defined herein then you are not authorized to find that the lands of defendant have been benefited by the widening of said road." Instruction numbered 7, given by the court, reads: "You are instructed that the term `special benefits', as used in these instructions, means any benefits causing an increase in the market value of a tract of land by reason of its position directly on an improved highway and which benefits are not enjoyed generally by other tracts of land in the neighborhood, no portion of which lands is taken by said highway; and such benefits are special and not general benefits, although conferred, if you so find, upon all the other tracts of land situated on the improved highway. "You are further instructed, if you find and believe from the evidence, that the market value of the remainder of the defendant's tract of land has been increased, resulting from special benefits, as defined above, by virtue of the construction of State Highway S C, such increase, if any, shall be set off against the damages, if any." Instruction numbered 3, complained of, standing alone, is clearly erroneous. State ex rel. State Highway Commission v. Jones, 321 Mo. 1154, 15 S.W.2d 338. In this case the court passed upon an instruction which defined peculiar benefits to mean such benefits as the land derived from the location of the road through it, which are not common to other lands in the same neighborhood. The court stated the law 15 S.W.2d on page 340 of the opinion thus: "'General benefits,' those accruing to the owners of property in a neighborhood or vicinity generally, are not deductible from the damages; to make such a deduction would be to require the landowner whose property is taken in part to liquidate his damages by contributing his share of the benefits which inure to the public as a whole. `Special benefits' stand on a different footing; they are such as accrue directly and proximately to the particular land remaining by reason of the construction of the public work on the part taken. Such benefits must, of course, be reflected in an increase in the market value of the land. "* * * `A general benefit is an advantage not peculiar to the remainder of a tract part of which is taken, but conferred by the public work upon all property within range of it utility.' Randolph, Em.Dom. § 269, p. 250. It is also well settled that a benefit, though conferred upon several tracts of land similarly situated, may nevertheless be a special and not a general benefit." Instruction numbered 7 properly defined special benefits and was given by the court at the request of the defendant. It will be noted that instruction numbered 3, in the last four lines thereof, states: "* * * and unless the plaintiff has shown special benefits as defined herein then you are not authorized to find that the lands of defendant have been benefited by the widening of said road." We hold that reading all of the instructions together, the jury was properly instructed *450 concerning their duty in determining special benefits. An instruction which told the jury that special and peculiar benefits to defendants' farm which are shared by other farms adjoining the highway are not special benefits, was held erroneous in State ex rel. State Highway Commission v. Duncan, 323 Mo. 339, 19 S.W.2d 465, and in State ex rel. State Highway Commission v. Young, 324 Mo. 277, 23 S.W.2d 130. So instruction numbered 3, in the case at bar, does not fully state the law as to special benefits and if it were not aided by instruction numbered 7, set out herein, given by the court, it would be reversible error. We find that the evidence offered by plaintiff on the issue of special and peculiar benefits, in the case at bar, establishes only benefits to defendants' land. One witness testified that defendants' land was benefited because the state cleared the right-of-way across defendants' land. He said about two acres of defendants' land was benefited by such clearing because the trees were sapping the fertility of defendants' land. Another witness based his conclusion that defendants' land was peculiarly benefited because defendants' land overflowed and the state, in the improvement, had elevated the road across said land so as to prevent such overflow. All of the evidence, as to peculiar benefits, offered, pointed to special benefits to this particular land and we think that the instruction was not erroneous under the particular facts in this case because there was no evidence that other lands, touching the improvements, made by the State, were benefited in any way. We think that the error in instruction numbered 3 was harmless. Assignment of error numbered IV complains that error was committed in admitting evidence of defendants' witnesses describing the existing roads and routes from defendants' property to centers of population; because the testimony was irrelevant to any issue in the case and was only admissible as rebuttal evidence offered by plaintiff and admitted by the court. We hold that this evidence constitutes harmless error, if error at all. In the evidence offered in the case, maps were introduced by plaintiff showing the location and the points of population connected by such improvement and we think it was discretionary with the trial court as to testimony offered showing the condition of other roads touching defendants' property and used by the defendant and people in the community in going to centers of population. Such testimony would not, in any way, prejudice the jury in performing their duties in arriving at a just compensation to the defendants for land taken. We think there is no merit in this contention. Judgment affirmed. BLAIR, J., concurs.	{ "pile_set_name": "FreeLaw" }
433 F.3d 1050 UNITED STATES of America, Appellee,v.Thomas MICKELSON, Appellant. No. 05-2324. United States Court of Appeals, Eighth Circuit. Submitted: November 15, 2005. Filed: January 6, 2006. John P. Messina, argued, Federal Public Defender, Des Moines, IA, for appellant. Robert Lee Teig, argued, Asst. U.S. Atty., Cedar Rapids, IA, for appellee. Before MURPHY, McMILLIAN, and GRUENDER, Circuit Judges. MURPHY, Circuit Judge. 1 Thomas Mickelson pled guilty to receiving child pornography in violation of 18 U.S.C. § 2252(a)(2)(A). The district court1 sentenced him to 51 months imprisonment and three years of supervised release with a number of special conditions. Mickelson appeals, challenging the reasonableness of his sentence and the validity of several terms of his supervised release. We affirm. 2 Mickelson was charged on December 16, 2003 with one count of receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2)(A) (count 1), and one count of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) (count 2). He pled guilty to count 1 on December 10, 2004 pursuant to a plea agreement. At the sentencing hearing he stipulated to a total offense level under the advisory guidelines of 22, a criminal history category of I, and a guideline range of 41 to 51 months. Mickelson's counsel suggested that a sentence at the bottom end would be more appropriate but asked the court to sentence him "somewhere within that range." 3 The district court chose to sentence Mickelson at the top of the guideline range. The court considered the factors in 18 U.S.C. § 3553(a) before choosing a sentence of 51 months, based on the seriousness of Mickelson's offense, his admission that he had sent images to other persons, his use of a computer in receiving images, and the fact that some of the images depicted children under the age of 12 and sadistic or masochistic violence. Although the district court also recognized potentially mitigating circumstances, including Mickelson's history of serious mental health issues, his alcoholism, and his physical disability, it declined to reduce his sentence, at least in part because the court found no evidence of a causal relationship between these factors and his offense. 4 The district court also sentenced Mickelson to three years of supervised release with a number of special conditions to which his counsel objected. Special Conditions 3 and 4 required Mickelson to participate in the Remote Alcohol Testing Program or Video Information Capture and to be placed on the Global Positioning Satellite (GPS) system for tracking at the discretion of the probation office. Special Condition 6 required Mickelson to receive mental health counseling if his probation officer deemed it appropriate. Special Condition 12 required Mickelson to have no contact with children under the age of 18 without the prior written consent of the probation office. 5 On appeal, Mickelson contends that his 51 month sentence was unreasonable, that Special Conditions 3, 4, and 6 constituted an improper delegation of the court's authority to the probation office, and that Special Condition 12 was "unnecessary and unreasonable" and therefore an abuse of discretion. 6 Mickelson first challenges his sentence as unreasonable. He argues that he was a "fringe offender" in the world of child pornography and the district court therefore made a "clear error in judgment" by sentencing him at the top of the advisory guideline range. He also contends that the court abused its discretion by focusing on whether his mitigating circumstances were causally related to his instant offense. 7 The government's initial argument is that this court lacks jurisdiction to review Mickelson's sentence because it was within the guideline range and a sentence within the guideline range is not listed as one of the bases for appellate review in 18 U.S.C. § 3742(a). Its second argument is that Mickelson waived his right to challenge his sentence because it was within the guideline range to which he had agreed. Finally, the government contends that Mickelson's sentence was presumptively reasonable because it was within the guideline range, the district court did not err in calculating the guidelines, and it considered all of the relevant factors under 18 U.S.C. § 3553(a). I. 8 We have already rejected the government's jurisdictional argument in United States v. Frokjer, 415 F.3d 865, 875 n. 3 (8th Cir.2005), and United States v. McCully, 407 F.3d 931, 933 n. 2 (8th Cir.2005). In those cases we held that an unreasonable sentence would be "in violation of law" and subject to review under 18 U.S.C. § 3742(a)(1) regardless of whether it was within the guideline range. In many other cases subsequent to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we have conducted a reasonableness review of sentences within the guideline range. See, e.g., United States v. Marcussen, 403 F.3d 982, 985 (8th Cir.2005); United States v. Ameri, 412 F.3d 893, 901 (8th Cir.2005); United States v. Marshall, 411 F.3d 891, 897 (8th Cir.2005). The government cites no post Booker case law in support of its jurisdictional argument. 9 Although we are bound by our precedents in Frokjer and McCully and only the court en banc could overturn them, see Bilello v. Kum & Go, LLC, 374 F.3d 656, 661 n. 4 (8th Cir.2004), we remain free to analyze the argument which the government continues to raise. Since its argument is based on statutory wording, we start by examining the language of the Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq. See Musick, Peeler & Garrett v. Employers Ins. of Wausau, 508 U.S. 286, 302, 113 S.Ct. 2085, 124 L.Ed.2d 194 (1993) ("The starting point in every case involving construction of a statute is the language itself.") (internal quotations omitted); United States v. McAllister, 225 F.3d 982, 986 (8th Cir.2000) ("(O)ur starting point in interpreting a statute is always the language of the statute itself. If the plain language of the statute is unambiguous, that language is conclusive...If, on the other hand, the language of the statute is ambiguous, we should consider the purpose, the subject matter, and the condition of affairs which led to its enactment.") (internal quotations omitted). 10 Under 18 U.S.C. § 3742(a) of the Sentencing Reform Act (the Act), appellate review was authorized for challenges by defendants if the sentence 1) was imposed in violation of law; 2) resulted from incorrect application of the guidelines; 3) was greater than the sentence specified under the applicable guideline range; or 4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable. The parties in this case agree that the district court did not err in applying the guidelines and that Mickelson's sentence was not above the guideline range; his sentencing appeal thus does not fit within the second or third provisions. A sentence within the guideline range is not explicitly mentioned in § 3742(a), and the government suggests that the plain language of the statute does therefore not provide for appellate review over such a sentence. 11 Section 3742(a)(1) does not define what is meant by a sentence "imposed in violation of law," and the language itself can be read to cover Mickelson's sentencing appeal although it does not do so explicitly. In this respect the statutory language is ambiguous. Our rule prior to Booker was that courts lacked jurisdiction to review a sentence "within a properly determined guideline range" unless there was some constitutional problem, United States v. Smotherman, 326 F.3d 988, 989 (8th Cir.2003), and other circuits interpreted the statute similarly. See, e.g., United States v. Tucker, 892 F.2d 8, 11 (1st Cir.1989); United States v. Colon, 884 F.2d 1550, 1553 (2d Cir.1989). The present ambiguity in the phrase "in violation of law" results from Booker's holding that the guidelines are no longer mandatory. See 125 S.Ct. at 764, 543 U.S. 220. This holding transformed the federal guideline system from a mandatory regime to a system of advisory guidelines, implicitly requiring renewed consideration of which sentences are "imposed in violation of law." 12 We accordingly turn to an examination of the purpose of the Act and its legislative history. Under the Act as originally written and prior to Booker, the federal sentencing guidelines were mandatory and a sentence within the guideline range was required unless there was a valid basis for departure. See, e.g., United States v. Mora-Higuera, 269 F.3d 905, 913 (8th Cir.2001). In order to overcome the sixth amendment infirmities identified in Justice Stevens' majority opinion in Booker, 125 S.Ct. at 749-50, 543 U.S. 220, Justice Breyer's remedial opinion looked to the structure and purpose of the Act to determine what Congress would have intended as a remedy. Id. at 761-62. The Court then excised two provisions of the Act, eliminating the mandatory nature of the guidelines and changing the de novo standard of appellate review to review for reasonableness. Id. at 764-65. We likewise look to the legislative history to inform our understanding of § 3742(a) and to determine whether a sentence within the applicable guideline range "was imposed in violation of law" if it was unreasonable. 18 U.S.C. § 3742(a)(1). 13 By passage of the Act Congress greatly expanded appellate review of sentencing decisions by federal district courts. See S. Rep. No. 98-225, at 150 (1983), U.S. Code Cong & Admin.News 1984, p. 3182. To overturn a sentence prior to the Act defendants had to show that it was so disproportionate to the offense as to violate the Eighth Amendment, Rummel v. Estelle, 445 U.S. 263, 271, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), or that there was some other procedural infirmity. See, e.g., North Carolina v. Pearce, 395 U.S. 711, 725-26, 89 S.Ct. 2072, 23 L.Ed.2d 656 (due process violated by vindictive imposition of more severe sentence following successful appeal); see also Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958) ("Whatever views may be entertained regarding severity of punishment... these are peculiarly questions of legislative policy."). With the Act Congress provided for sentencing appeals by defendants under § 3742(a), as well as by the government under § 3742(b). 14 To the authors of the Act the chief flaws of the old system were the "almost absolute (judicial) discretion to impose any sentence legally available," S. Rep. No. 98-225, at 150 (1983), and the resulting lack of consistency in sentences imposed by different federal district courts for similar offenses. Id. at 41-46. The Act's provisions for appellate review of federal sentencing decisions were intended to reduce disparity in sentencing while also serving as a means to identify potential problems with the guidelines that could be remedied by the United States Sentencing Commission. Id. at 151. Appellate review would "focus attention on those sentences whose review is crucial to the functioning of the sentencing guidelines system, while also providing adequate means for correction of erroneous and clearly unreasonable sentences." Id. at 155. The Act would also require the sentencing judge to give "reasons for the sentence imposed" to assist review of the "reasonableness of a sentence outside the (mandatory) guidelines." Id. at 60. And case law could be developed on "the appropriate reasons for sentencing outside the guidelines." Id. at 151. 15 The remedial opinion in Booker examined the Act to determine which of its provisions are "the most compatible with the legislature's intent as embodied in the 1984 Sentencing Act." 125 S.Ct. at 757. The Court recognized the central legislative intent to diminish disparity in sentencing, id. at 761, and to refine the guidelines system through the process of appellate review. Id. at 767. The Court thought it important to invalidate no more of the Act than was necessary while retaining the provisions which could function independently of the constitutional infirmities. Id. at 764. Consequently, the sentencing judge in the advisory guideline system is to consider the guideline range, any "pertinent Sentencing Commission policy statement," and the factors in § 3553(a) of the Act which remain valid. Id. at 764-65. The appropriate standard of review for advisory guideline sentencing was inferred from the text and structure of the Act. Sentences are to be reviewed for unreasonableness, a standard Justice Breyer found compatible with the structure of the Act, and one contained in its original provisions for review of departures and sentences outside the guideline range, thus "already familiar to appellate courts." Id. at 765. The Court concluded that review of all sentences for unreasonableness would be compatible with the central goals of the Act. Id. at 767-68. 16 In this section of the remedial opinion Justice Breyer specifically stated that § 3742(a) "continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the Guidelines range in the exercise of his discretionary power under § 3553(a))." Id. at 765 (emphasis added). The majority's decision that appellate courts are to review sentencing decisions within the guideline range for reasonableness was attacked by Justice Scalia who recognized that the Court was imposing reasonableness review "across the board to all sentencing appeals, even to sentences within `the applicable guideline range,' where there is no legal error or misapplication of the Guidelines." Id. at 794 (Scalia, J., dissenting). Justice Breyer responded to this portion of Justice Scalia's dissent by affirming that it correctly characterized the reach of the majority's remedial opinion for "we believe that appellate judges will prove capable of facing with greater equanimity than would Justice Scalia what he calls the `daunting prospect' of applying such a standard across the board." Id. at 766 (internal citation omitted) (emphasis added). 17 By selecting a reasonableness standard of review as most compatible with the Act and applicable to sentences either "within or outside" the range of the now advisory guidelines, Booker, 125 S.Ct. at 765, the Court conformed the Act to its sixth amendment remedy and provided for appellate review over all discretionary sentencing decisions for unreasonableness. As we recognized in United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir.2005), calculation of the appropriate guideline sentence is only the first step in sentencing decisions under Booker, for the court must also consider the § 3553(a) factors before making its ultimate decision. Under this regime a guideline sentence, although presumptively reasonable, United States v. Lincoln, 413 F.3d 716, 717-18 (8th Cir.2005), can still be unreasonable when all the § 3553(a) factors are taken into consideration. The extent of a departure was always reviewed under the Act for reasonableness using the § 3553(a) factors, 18 U.S.C. § 3742(e)(3), and consideration of these factors under the discretionary guideline system is similarly subject to review for reasonableness. 18 Adoption of the rule urged by the government, that a sentence within the guideline range is not subject to reasonableness review, would have the effect of returning federal sentencing to something like the mandatory guideline system found unconstitutional in Booker. See 125 S.Ct. at 746. Under such a rule trial courts would be encouraged to sentence only within the guideline range to avoid having sentences overturned on appeal. This would effectively restore the rigidity in sentencing which the Booker majority held to violate the sixth amendment rights of defendants. See id. at 750-51. It is unlikely that Congress would have intended the appellate review it created in § 3742(a) to be construed so restrictively since the legislative history shows its purpose in enlarging such review was to reduce disparity and to identify potential sentencing problems. See S. Rep. No. 98-225, at 49, 151 (1983). 19 In contrast to the sentencing scheme before Booker when a sentence outside the mandatory guideline range was permitted only on very limited grounds, there are now more sentencing variables. Both the grounds to support a sentence outside the range and the sentencing judge's discretion in weighing those grounds have increased significantly. While appellate review of sentences within the guideline range was not seen as essential to the functioning of the original mandatory system, with advisory guidelines appellate review of sentences both within and without the guideline range is critically important to meet the congressional goals of eliminating sentencing disparities and refining the guideline system. See S. Rep. No. 98-225, at 151 (1983). 20 We conclude that appellate review for sentences both within or outside the guideline range fits within "what Congress would have intended in light of the Court's constitutional holding." Id. at 757 (internal quotations omitted). Our holdings in Frokjer, 415 F.3d at 875 n. 3, and McCully, 407 F.3d at 933 n. 2, are supported by the language and structure of the Act, its legislative history, and Booker, and we thus reject the government's argument that we do not have jurisdiction to review Mickelson's sentence for reasonableness under § 3742(a)(1).2 II. 21 The government next argues that Mickelson waived his right to challenge his 51 month sentence. A defendant who explicitly and voluntarily exposes himself to a specific sentence may not challenge that punishment on appeal. United States v. Nguyen, 46 F.3d 781, 783 (8th Cir.1995). Mickelson stipulated to the total offense level on which the district court based its guideline determination and to a guideline range of 41-51 months. Moreover, at sentencing his counsel asked for a sentence within that range but stated a preference for a sentence at the bottom. Mickelson did not waive his right to appeal his sentence in his plea agreement, but his stipulation and his counsel's request for a sentence within the guideline range may be interpreted as an acknowledgment that any sentence within the range would have been reasonable. 22 Even without such an acknowledgment, sentences within the applicable guideline range are presumptively reasonable. Lincoln, 413 F.3d at 717-18. The district court chose a sentence at the top of the range stipulated to by the parties only after considering all of the § 3553(a) factors individually. The factors that appear to have been most determinative for the court were the "nature and circumstances" of Mickelson's offense, which the district court considered to be "very serious." It also discounted the importance of his mitigating factors because it concluded that they had had no causal relationship to his offense. The court did not imply that a cause and effect relationship was necessary in order to take account of mitigating factors, only that it found the absence of such a relationship significant in this case. Mickelson has not shown that the district court considered any impermissible factor or gave undue weight to a pertinent factor in arriving at his sentence. See Haack, 403 F.3d at 1004. We conclude from our review of the record that Mickelson's sentence was not unreasonable. III. 23 Mickelson also challenges several of the conditions imposed as part of his supervised release. He contends that Special Conditions 3, 4, and 6 are improper delegations of authority by the district court because of the discretion given to the probation office in overseeing them. These conditions require him to participate in the Remote Alcohol Testing Program or Video Information Capture and to be placed on the GPS system for tracking at the discretion of the probation office, and to receive mental health counseling if deemed appropriate by his probation officer. He also argues that Special Condition 12, requiring him to have no contact with anyone under the age of 18 without the express written permission of the probation office, is unnecessary and unreasonable given the circumstances of his case, including his close relationship with his grandchildren. The government responds that the district court did not abuse its discretion with respect to any of the challenged conditions. We review terms and conditions of supervised release for abuse of discretion. United States v. Ristine, 335 F.3d 692, 694 (8th Cir.2003). 24 A sentencing judge may impose special conditions of supervised release if the conditions are reasonably related to the § 3553(a) factors, involve no greater deprivation of liberty than is reasonably necessary, and are consistent with any pertinent policy statements issued by the United States Sentencing Commission. 18 U.S.C. § 3583(d). The judge may also modify a condition at any time prior to the end of the term of supervised release. 18 U.S.C. § 3583(e). Conditions delegating limited authority to non judicial officials such as probation officers are permissible so long as the delegating judicial officer retains and exercises ultimate responsibility. See United States v. Kent, 209 F.3d 1073, 1078-79 (8th Cir.2000). 25 In Kent we recognized that a trial court "cannot be expected to police every defendant to the extent that a probation officer is capable of doing." Id. at 1079. Moreover, flexible conditions can serve a defendant's interests since they can be tailored to meet his specific correctional needs. See United States v. Cooper, 171 F.3d 582, 587 (8th Cir.1998). Although we reversed a special condition in Kent requiring the defendant to undergo psychiatric treatment upon release, that was because statements by the district court there could have been interpreted to vest final authority in the probation office. 209 F.3d at 1079. In contrast, the district court here gave no indication that it would not retain ultimate authority over all of the conditions of Mickelson's supervised release, and it specifically stated that it intended to limit conditions to those actually needed. We conclude there was no abuse of discretion in respect to Special Conditions 3, 4, and 6. 26 As for Special Condition 12, Mickelson cites no case law in support of his contention that it was unnecessary or unreasonable. We have in fact recently approved virtually identical supervised release conditions following guilty pleas on similar charges, albeit in cases involving defendants with more serious records than that of Mickelson. See United States v. Mark, 425 F.3d 505, 507-08 (8th Cir.2005); United States v. Crume, 422 F.3d 728, 733-34 (8th Cir.2005); United States v. Heidebur, 417 F.3d 1002, 1005 (8th Cir.2005). We do not find the differences between their records determinative, for requiring prior approval before a convicted sex offender has contact with minors is a reasonable means of ensuring that such contact remains appropriate. See Mark, 425 F.3d at 508. The district court's refusal to incorporate a blanket exception for Mickelson's grandchildren or other family members was not unreasonable given the fact that most sexual abuse of children takes place at the hands of family members or friends. See, e.g., Michele L. Earl-Hubbard, The Child Sex Offender Registration Laws, 90 Nw. U.L.Rev. 788, 851-52 (1996)(noting that as many as 92% of reported incidents of child molestation are committed by family members or friends of the victim). Moreover, Mickelson has not been forbidden from seeing his grandchildren or any other family member; he is merely required to seek prior permission. If such permission is arbitrarily or unfairly denied, he is free to seek relief from the district court under § 3583(e). This arrangement does not constitute an abuse of discretion. IV. 27 Accordingly, the judgment of the district court is affirmed. Notes: 1 The Honorable Linda R. Reade, United States District Judge for the Northern District of Iowa 2 Because of this conclusion, we need not address whether § 3742(a)(4) would also support reasonableness review over a sentence within the guideline range as some suggest. (Section 3742(a)(4) provides for appeal of sentences "imposed for an offense for which there is no sentencing guideline and is plainly unreasonable," and afterBooker there is no longer a binding sentencing guideline for any offense.)	{ "pile_set_name": "FreeLaw" }
62 F.3d 396 Wien Air Alaskav.Norddeutsche* NO. 95-10144 United States Court of Appeals,Fifth Circuit. July 12, 1995 Appeal From: N.D.Tex., No. 4:94-CV-355-A 1 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2	{ "pile_set_name": "FreeLaw" }
762 F.2d 138 246 U.S.App.D.C. 44 National Black Media Coalitionv.F.C.C. 85-1257 United States Court of Appeals,District of Columbia Circuit. 5/2/85 1 F.C.C. AFFIRMED	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs January 25, 2011 STATE OF TENNESSEE v. COURTNEY PARTIN Appeal from the Criminal Court for Campbell County No. 11082 E. Shayne Sexton, Judge No. E2010-01508-CCA-R3-CD - Filed April 27, 2011 This case is before the court after remand to the Campbell County Criminal Court for resentencing. The Defendant, Courtney Partin, was convicted by a Campbell County Criminal Court jury of attempted first degree murder, a Class A felony, and two counts of aggravated assault, a Class C felony. See T.C.A. §§ 39-13-202 (Supp. 2001) (amended 2002, 2007), 39-13-102 (Supp. 2001) (amended 2002, 2005, 2009, 2010). The trial court merged one count of aggravated assault with the attempted first degree murder because the offenses involved the same victim and sentenced the Defendant as a Range I, standard offender to twenty-two years’ confinement for attempted first degree murder and to four years’ confinement for aggravated assault, to be served concurrently. On appeal, the Defendant contends that the trial court erred during sentencing by beginning its sentencing consideration at the midpoint in the applicable range. We affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT, J R., and N ORMA M CG EE O GLE, JJ., joined. Douglas A. Trant, Knoxville, Tennessee, for the appellant, Courtney Partin. Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; William Paul Phillips, District Attorney General; and Michael O. Ripley, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION At the original sentencing hearing, the trial court sentenced the Defendant as a Range I, standard offender to twenty-four years for the attempted first degree murder conviction and to five years for the aggravated assault conviction, to be served consecutively, for an effective sentence of twenty-nine years. This court affirmed the judgments. The Defendant’s application for permission to appeal to the Tennessee Supreme Court was denied. State v. Courtney Partin, No. E2004-02998-CCA-R3-CD, Campbell County (Tenn. Crim. App. Mar. 21, 2006), app. denied (May 30, 2006). The United States Supreme Court granted certiorari, vacated the judgments, and remanded the case to this court for consideration of the sentences imposed in light of Cunningham v. California, 549 U.S. 270 (2007). Partin v. Tennessee, 549 U.S. 1196 (2007) (mem.). This court remanded the case to the Criminal Court for Campbell County for resentencing with instructions to determine “the [D]efendant’s prior criminal convictions and the appropriate enhancement weight to be applied to the [D]efendant’s sentences for his present convictions.” State v. Courtney Partin, No. E2004- 02998-CCA-R3-CD, Campbell County, slip op. at 6 (Tenn. Crim. App. Nov. 30, 2007). At the resentencing hearing, the trial court concluded that it was “duty bound” to begin consideration of the Defendant’s sentence for attempted first degree murder at the minimum in the range, or fifteen years. The trial court sentenced the Defendant as a Range I, standard offender to seventeen years for attempted first degree murder and to five years for aggravated assault, to be served consecutively, for an effective twenty-two year sentence. The State and the Defendant appealed. This court held that the trial court erred by applying an improper enhancement factor to the aggravated assault conviction and by beginning its sentencing consideration at a point lower than provided for a Class A felony conviction. We reversed the judgments of the trial court and remanded the case for resentencing with instructions for the trial court to begin its sentencing consideration for attempted first degree murder at the midpoint of the range and then apply applicable enhancement or mitigating factors. State v. Courtney Partin, No. E2008-01669-CCA-R3-CD, Campbell County, slip op. at 4 (Tenn. Crim. App. Oct. 8, 2009), app. denied (Tenn. Jan. 25, 2010). At the resentencing hearing, no evidence was presented. The trial court began its sentencing consideration for attempted first degree murder at the midpoint of the range and found that the following enhancement factors applied pursuant to Tennessee Code Annotated section 40-35-114 (Supp. 2001) (amended 2002, 2005, 2007, 2008): (1) the Defendant had a previous history of criminal convictions, in addition to those necessary to establish the appropriate range, and (9) the Defendant employed a deadly weapon during the commission of the offense. The trial court found that enhancement factor (1) also applied to the Defendant’s conviction for aggravated assault. The trial court found that no mitigating factors applied to either conviction. The Defendant was sentenced as a Range I, standard offender to twenty-two years’ confinement for attempted first degree murder and to four years’ confinement for aggravated assault, to be served concurrently. We note that the trial court indicated in its sentencing memorandum that it found enhancement factor (1) under the 2002 version of Tennessee Code Annotated section 40-35- -2- 114, the Defendant’s offense was an act of terrorism, applicable to his conviction for attempted first degree murder. We note that this enhancement factor was added to the statute after the Defendant’s offense and the remainder of the enhancement factors were renumbered. See T.C.A. § 40-35-114 (Supp. 2002). Enhancement factor (1) at the time of the Defendant’s offense was that the Defendant had a previous history of criminal convictions, in addition to those necessary to establish the appropriate range. In any event, the record reflects that the trial court did not find at the sentencing hearing that the Defendant’s offense was an act of terrorism or consider that enhancement factor when sentencing the Defendant. On appeal, the Defendant contends that the trial court erred during sentencing by beginning its sentencing consideration at the midpoint in the applicable range. He argues that beginning at the midpoint constitutes an illegal enhancement not based on findings of fact made by the jury, in violation of Blakely v. Washington, 542 U.S. 296 (2004) and Cunningham, 549 U.S. 270. The State contends that the trial court properly sentenced the Defendant under the sentencing laws in effect at the time of his offense. We agree with the State. Appellate review of sentencing is de novo on the record with a presumption that the trial court’s determinations are correct. T.C.A. §§ 40-35-401(d), -402(d) (Supp. 2001) (amended 2005); State v. Carter, 254 S.W.3d 335 (Tenn. 2008) (citing State v. Shelton, 854 S.W.2d 116 (Tenn. Crim. App. 1992)); State v. Pierce, 138 S.W.3d 820, 827 (Tenn. 2004). As the Sentencing Commission Comments to these sections note, the burden is now on the appealing party to show that the sentencing is improper. The presumption that the trial court’s action is correct “is conditioned upon an affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The trial court must place on the record its reasons for arriving at the final sentencing decision, identify the mitigating and enhancement factors found, state the specific facts supporting each enhancement factor found, and articulate how the mitigating and enhancement factors have been evaluated and balanced in determining the sentence. T.C.A. § 40-35-210(f)-(g) (Supp. 2001) (amended 2005). If the trial court followed the statutory sentencing procedure, made findings of fact that are adequately supported in the record, and gave due consideration and proper weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing Act, the sentence may not be disturbed even if a different result were preferred. State v. Fletcher, 805 S.W.2d 786, 789 (Tenn. Crim. App. 1991). The Defendant committed the offenses in January 2002. Although the current Sentencing Act does not apply presumptive minimum sentences, the pre-2005 Sentencing Act under which the Defendant was convicted and sentenced applied presumptive sentences. -3- See T.C.A. § 40-35-210(c) (Supp. 2001) (amended 2005). The Defendant’s reliance on Blakely and Cunningham is misplaced. Under the applicable sentencing law, the presumptive sentence for a Class A felony is the midpoint of the range, twenty years, if there are no enhancement or mitigating factors. T.C.A. § 40-35- 210(c); see also T.C.A. § 40-35-112 (2010) (the Range I sentence for a Class A felony is fifteen to twenty-five years). As stated by this court in the Defendant’s previous appeal: Blakely prohibits sentences “above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” Cunningham, 549 U.S. at 275 (citing United States v. Booker, 543 U.S. 220 (2005); Blakely, 542 U.S. 296; Ring v. Arizona, 536 U.S. 584 (2002); Apprendi v. New Jersey, 530 U.S. 466 (2000)). The “relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Blakely, 542 U.S. 296, 303-04; Cunningham, 549 U.S. at 275. Nothing in Blakely requires a sentencing court to begin with a statutory minimum sentence. Courtney Partin, No. E2008-01669-CCA-R3-CD, slip op. at 4. Under applicable law, the trial court was required to begin its sentencing consideration at the midpoint in the range, and doing so was not prohibited by Blakely or Cunningham. The Defendant is not entitled to relief. In consideration of the foregoing and the record as a whole, the judgments of the trial court are affirmed. _____________________________________ JOSEPH M. TIPTON, PRESIDING JUDGE -4-	{ "pile_set_name": "FreeLaw" }
16 Cal.3d 902 (1976) 549 P.2d 548 129 Cal. Rptr. 780 In re JACK KIRSCHKE on Disbarment. Docket No. L.A. 30442. Supreme Court of California. In Bank. May 19, 1976. 903 COUNSEL Roger Hanson, Griffith D. Thomas and George T. Davis for Petitioner. Herbert M. Rosenthal and Ronald W. Stovitz for Respondent. OPINION THE COURT. This is a proceeding to review a recommendation of the Disciplinary Board of the State Bar that petitioner be disbarred. He was admitted to practice law in this state in 1956. Petitioner was convicted in a jury trial of first degree murder (Pen. Code, § 187) for shooting his wife and her lover. His conviction was affirmed by the Court of Appeal in an unpublished opinion, and his petition for hearing in this court was denied. Petitioner then filed a petition for writs of habeas corpus and coram nobis. After an extensive evidentiary hearing, the trial court denied the petition, the Court of Appeal unanimously concurred (In re Kirschke (1975) 53 Cal. App.3d 405 [125 Cal. Rptr. 680]), and we again denied a hearing. When this court received record of petitioner's conviction, we noted that his crime involved moral turpitude and suspended him from the practice of law under the authority of Business and Professions Code section 6102, subdivision (a). Upon the finality of petitioner's conviction, we ordered him to show cause why a final disciplinary order should not be made. He filed a response, requesting a delay pending the outcome of his habeas corpus proceeding in the trial court. After relief was denied in that proceeding, we referred the matter to the State Bar on the issue of 904 discipline. Following hearings, a local administrative committee unanimously recommended disbarment, and the disciplinary board, by an 11-1 vote, concurred. (1a) Section 6102, subdivision (b), provides that if this court finds an attorney has been convicted of a crime involving moral turpitude, it shall "enter an order disbarring the attorney or suspending him from practice for a limited time, according to the gravity of the crime and the circumstances of the case; ..." We have twice determined in our interim suspension of petitioner and in our order to him to show cause why he should not be disciplined that the murder he stands convicted of committing involved moral turpitude. Petitioner does not dispute this conclusion. (2) Instead, petitioner seeks in this proceeding to reassert his innocence of the murder. He is expressly precluded from this course of action by section 6101, which provides that in a proceeding to disbar an attorney because of a criminal conviction, "the record of conviction shall be conclusive evidence of guilt of the crime of which he has been convicted." Petitioner not only received a fair and lengthy trial by a jury of his peers and subsequent appellate review, but he also obtained a further exhaustive evaluation of his contentions when he filed a habeas corpus petition. Petitioner's attempt in this proceeding to further collaterally attack his conviction must be rejected. (1b) The facts and circumstances surrounding petitioner's crime are relevant only to determine appropriate discipline. (In re Bogart (1973) 9 Cal.3d 743, 748 [108 Cal. Rptr. 815, 511 P.2d 1167].) Viewed in this light, no mitigating factors have been raised by petitioner. As petitioner has been convicted of the gravest of crimes and no mitigating circumstances are apparent, we can only conclude that he is presently unqualified to practice law in this state. It is ordered that petitioner be disbarred and that his name be stricken from the roll of attorneys, effective 30 days after the filing of this opinion.	{ "pile_set_name": "FreeLaw" }
337 F.Supp.2d 325 (2004) The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Plaintiff, v. Jessica L. SCHMID, and Patricia K. Schmid, Defendants. No. CIV.A.03-40038-NMG. United States District Court, D. Massachusetts. September 16, 2004. 326 CaryLouise Belrand, William Bogaert, Wilson, Elger, Moskowitz, Edelman & Dickor, Edward P'Oleary, Fitzhugh, Parker & Alvaro, Boston, MA, for Prudential. Bonnie E. Marien, Clavdine T. Noftall, Marien & Hodge P.C., Springfield, MA, for Jessica Schmid. Dorothy Varon, Nancy Frankell Pelcher, Robinson Donovan P.C., Springfield, MA, for Patricia Schmid. MEMORANDUM & ORDER GORTON, District Judge. On February 24, 2003, Prudential Insurance Company of America ("Prudential") filed a complaint in interpleader against 327 defendants Jessica L. Schmid ("Jessica") and Patricia K. Schmid ("Patricia"). Prudential claims that it cannot determine with certainty whether Jessica or Patricia is entitled to the proceeds of a life insurance policy of the decedent, Alexander Schmid ("Mr.Schmid"). Pending before the Court are Jessica's motions for summary judgment and to strike Patricia's Response to her Statement of Material Facts. Both motions are opposed. I. Background Jessica is the daughter and Patricia the second wife of the late Mr. Schmid. Mr. Schmid was employed by the Springfield Public School District and was thereby eligible to participate in Member Benefits Group Life Insurance Plan ("the Plan") of the National Education Association ("NEA"), insured by Prudential. Mr. Schmid and his first wife, Jessica's mother, were divorced in 1989 and as part of the divorce he promised to make Jessica the beneficiary of his life insurance policy at least until her 21st birthday on November 14, 2001. Mr. Schmid enrolled in the Plan, selected basic NEA Term Life coverage and, on a form dated February 13, 1992, designated Jessica as beneficiary. Mr. Schmid married Patricia in August, 1998. Thereafter, Mr. Schmid purchased additional insurance through NEA, including Accidental Death and Dismemberment ("AD & D") coverage and designated Patricia as his sole beneficiary for that coverage. In October, 2001, Mr. Schmid requested a change of beneficiary form from NEA as well as information with respect to the named beneficiary of his term life insurance. Patricia contends that she heard Mr. Schmid say, while on the phone with NEA, that he intended to make her the beneficiary of the term life insurance. On or about November 7, 2001, Mr. Schmid received correspondence dated November 5, 2001 from NEA customer service representative, Cristina Bradford ("Ms.Bradford"), erroneously identifying Patricia, rather than Jessica, as the beneficiary of his term life insurance policy. As explained in Prudential's complaint, Ms. Bradford presumably sent information from the most recent insurance application on file relative to the AD & D coverage rather than the term life insurance coverage. The correspondence also included a change of beneficiary form with instructions that to effect a change Mr. Schmid should complete it, have it witnessed by someone other than the proposed new beneficiary and return it to NEA. Mr. Schmid died on October 7, 2002. At the time of his death, he was insured for $80,000 under the term life policy and $1,000 under the unexplained "ABC Life coverage provisions" (collectively, "the Proceeds"). Patricia alleges that Mr. Schmid intended to change the beneficiary of his term life insurance policy from Jessica to Patricia and was only prevented from doing so by Ms. Bradford's transmission error. At present, Jessica remains as the listed beneficiary. On November 8, 2002, Patricia's attorney contacted NEA and stated that her client was the rightful beneficiary of the Proceeds based upon the November 5, 2001 correspondence from Ms. Bradford. The legal basis for Patricia's claim was identified as promissory estoppel and misrepresentation. NEA forwarded Patricia's information to Prudential, who provided the parties with an opportunity for resolution before filing this action in interpleader. After commencing this action and pursuant to an order of the Court, Prudential paid the Proceeds into Court and has been discharged from the proceedings. On October 23, 2003, Jessica filed the instant motion for summary judgment. 328 Patricia opposed the motion and filed a response to Jessica's Statement of Material Facts. Jessica subsequently filed the pending motion to strike Patricia's response and opposition to summary judgment, which Patricia also opposes. II. Discussion A. The Summary Judgment Motion 1. Standard of Review The role of summary judgment is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991)(quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990)). The burden is upon the moving party to show, based upon the pleadings, discovery and affidavits, "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Factual disputes that are irrelevant or unnecessary will not be counted." Id. A genuine issue of material fact exists where the evidence with respect to the material fact in dispute "is such that a reasonable jury could return a verdict for the nonmoving party." Id. Once the moving party has satisfied its burden, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine, triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court must view the entire record in the light most hospitable to the non-moving party and indulge all reasonable inferences in that party's favor. O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir.1993). If, after viewing the record in the non-moving party's favor, the Court determines that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. 2. Jessica's Motion for Summary Judgment Jessica seeks summary judgment with respect to the ownership of the Proceeds, arguing: 1) she is the named beneficiary of Mr. Schmid's term life insurance, 2) Patricia lacks standing to bring a claim under the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA") and 3) Mr. Schmid did not substantially comply with the requirements for changing the beneficiary designation on his Life Insurance Plan. It is uncontested that Jessica is the named beneficiary of Mr. Schmid's term life insurance. That fact alone is, however, an insufficient basis for granting summary judgment in her favor. Even if Jessica had developed the argument beyond the conclusory statement in her introduction, federal law does not limit inquiry in these matters to the four corners of an insurance policy. Although ERISA requires that the fiduciary shall make payments to a beneficiary "designated by a participant, or by the terms of [the] plan", 29 U.S.C. § 1002(8), it is silent as to how to select a beneficiary from among disputing claimants and the Court must look beyond the named beneficiary to determine which claimant should prevail. Jessica does not have the right to demand strict compliance with the policy and Prudential, as the only remaining party to the contract, effectively waived the right to insist upon strict compliance by becoming a stakeholder in interpleader. Pan American Life Insurance Co. v. De Cobian Alvarez, 160 F.Supp. 292, 295 (D.P.R.1958) (defendant 329 has no standing to challenge a change of beneficiary when the insurer has waived its right to do so). Jessica next argues that Patricia lacks standing to bring a claim under ERISA because she is neither participant, beneficiary or fiduciary pursuant to its relevant provisions. Although it is likely that Patricia does not meet the standard for a beneficiary under ERISA, the issue of standing is irrelevant in this case. As Patricia argues in her opposition, she did not put the ERISA claims before the Court. Prudential filed the instant action in interpleader, and as a defendant in this case, Patricia does not need to establish standing. See Metropolitan Life Insurance Co. v. Flinkstrom, 303 F.Supp.2d 34, 38 (D.Mass.2004)(standing not an issue); Pan American Life Insurance Co. at 293. Jessica's final and most substantive argument is that even if Patricia has standing to pursue her claim, Mr. Schmid did not substantially comply with the requirements of the Plan to effect a change of beneficiary. Although the Plan is an employee welfare benefit plan typically regulated by ERISA, the statute contains no specific provisions for the settlement of disputes between claimants. Jessica bases her argument on the common law doctrine which requires that any attempted change of beneficiary meet a standard of substantial compliance with the insurer's policy for such changes. Patricia responds that Mr. Schmid did substantially comply with the provision for changing beneficiaries by calling the insurance company because, having been subsequently misinformed that Patricia was already the listed beneficiary, no reason existed for him to complete the change of beneficiary form. Before addressing the issue of substantial compliance, however, the Court must deal with the threshold question of whether ERISA preempts the state common law doctrine of substantial compliance and if so, what is the controlling federal common law. There is no precedent directly addressing whether ERISA preempts the state common law doctrine of substantial compliance but the related question of whether ERISA preempts state statutory law concerning policy beneficiaries was addressed in Egelhoff v. Egelhoff, 532 U.S. 141, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001). In that case, the Supreme Court held that a Washington State statute relating to beneficiary designation after a divorce was preempted by ERISA. Although ERISA contains no express provisions concerning the effect of a divorce, the Court held that, because the state statute pertained to the payment of benefits, it impermissibly interfered with a "central matter of plan administration." Egelhoff, at 160, 121 S.Ct. 1322. The Egelhoff opinion, therefore, supports the notion that, where the cause of action concerns beneficiaries of a plan covered by ERISA, state law is preempted. In Catholic Charities of Maine v. City of Portland, 304 F.Supp.2d 77 (D.Me.2004), the only district court within the First Circuit Court to interpret Egelhoff's provisions on preemption, held that the City of Portland could not limit payment of certain city funds to those employers who provide benefits to domestic partners. Citing Egelhoff, the court concluded that, inasmuch as the City Ordinance was "concerned with the ... administration of employee benefit plans, an area of core ERISA concern," it was preempted by ERISA. While the First Circuit Court of Appeals has not otherwise addressed the question at hand, the Fourth and Seventh Circuits have specifically examined ERISA's effect upon the state common law doctrine of substantial compliance and concluded that ERISA preempts state law in this area. 330 See Phoenix Mutual Life Insurance Co. v. Adams, 30 F.3d 554 (4th Cir.1994); Metropolitan Life Insurance Co. v. Johnson, 297 F.3d 558 (7th Cir.2002). The Sixth Circuit has gone a step farther, suggesting that "virtually all state law claims relating to an employee benefit plan are preempted by ERISA." Tinsley v. General Motors Corporation, 227 F.3d 700, 703 (6th Cir.2000). Because preemption of state law is in accordance with the Supreme Court's decision in Egelhoff, and because the only inconsistent case law predates that decision, this Court concludes that state common law doctrine of substantial compliance is preempted by ERISA. When ERISA fails to address an issue and the state law relating to that issue has been preempted, the Supreme Court has authorized federal courts to develop federal common law under ERISA-regulated plans. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Current federal common law on this issue is best embodied in the two-part test for substantial compliance established by the Fourth Circuit in Phoenix Mutual Life Insurace Co. v. Adams, 30 F.3d. 554 (4th Cir.1994), and adopted by the Seventh Circuit. According to the Phoenix test, the insured must have 1) evidenced intent to make the change and 2) attempted to effectuate the change by undertaking positive action which is, for all practical purposes, similar to the action required by the change of beneficiary provisions of the policy. In the absence of any existing First Circuit law, this Court will adopt that test. The first element of substantial compliance, i.e. that the insured must have evidenced intent to make a change, may be satisfied by evidence that the decedent expressly told another of his intent to change the beneficiary on the insurance policy. In Life Insurance Co. of N. America v. Leeson, 2002 WL 483563, 1, 2002 U.S. Dist LEXIS 18530, 3 (S.D.Ohio 2002), the district court found sufficient evidence of intent where the decedent had told his wife, mother and sister that he planned to make his new wife the beneficiary. Similarly, in Connecticut General Life v. Thomas, 910 F.Supp. 297, 299 (N.D.Tex.1995), the district Court suggests that oral modification to the insurer of plans to make a specific change would adequately evince the decedent's intent. In this case, there is colorable evidence that Mr. Schmid intended to make Patricia his beneficiary. She states in her affidavit (and for the purposes of this motion, the Court must accept) that Mr. Schmid expressed his intent to make her the beneficiary during a phone conversation with the insurer. The issue involves a genuine issue of material fact. Having acknowledged that there is sufficient evidence of intent for the purpose of this summary judgment motion, the Court must now determine whether there is a genuine issue of material fact with respect to the second Phoenix factor for substantial compliance, i.e. whether Mr. Schmid attempted to effectuate a change of beneficiary by undertaking positive steps to satisfy the policy requirements. Here, Patricia comes up short because, even if the Court construes all reasonable inferences in her favor, Mr. Schmid's actions were insufficient to accomplish a change of beneficiary and, therefore, Jessica is entitled to summary judgment in her favor. Although neither party included a copy of the insurance policy with her memo, it is clear from Ms. Bradford's letter that in order to change his beneficiary, Mr. Schmid, at the very least, had to complete a Change of Beneficiary Form, have it witnessed by someone other than the proposed new beneficiary and return it to the insurance company. He did none of those things. Patricia argues that had Mr. 331 Schmid not been misinformed that she was already the beneficiary he would have changed the designation of his the beneficiary. She claims, therefore, that Mr. Schmid's telephone conversation with a company representative should suffice as a good-faith attempt to effect a change of beneficiary. Her position is, however, insupportable. There are parallel cases that prove instructive in this matter. In American International Life Assurance Co. of New York v. Vazquez, 2003 WL 548738, 2003 U.S. Dist LEXIS 2675 (S.D.N.Y.2003), the decedent did nothing except express an intent to make an unspecified change and to obtain the change of beneficiary forms. The Court held that this was insufficient to effectuate a change of beneficiary. More a propose is Aetna Life Ins. Co. v. Weatherford, 924 F.2d 1057, 1991 WL 11611 (6th Cir.1991), where the decedent completed and signed a change of beneficiary form but never mailed it. The completion of the form was held to be merely an "unexecuted intention" and did not meet the standard of substantial compliance. Aetna Life Ins. Co., 1991 WL 11611 at *5. In this case, it is clear that the telephone conversation does not suffice as a positive act to accomplish Mr. Schmid's intent. He did not take the necessary steps to change his beneficiary. There is simply no genuine issue of material fact to decide and Jessica's motion for summary judgment will be allowed. B. The Motion to Strike Jessica has filed a motion to strike portions of the statement of material facts and the affidavit Patricia filed in support of her opposition to Patricia's motion for summary judgment ("the Affidavit"). Jessica argues that a number of statements contained in the Affidavit are inadmissible hearsay and that other statements are conclusions of law rather than Patricia's statements of personal knowledge. Patricia opposes the motion on the grounds that the statements at issue are not hearsay because they are meant to show Patrica's state of mind pursuant to Fed.R.Evid. 803, as well as the state of mind of her deceased husband, pursuant to Fed.R.Evid. 804(b)(5). She argues that the other statements are not conclusions of law but merely recitations of the facts. Without addressing the details, it is clear to this Court that the subject statements are not inadmissible hearsay and are admissible for the purpose of the pending motion. Patricia's demand for costs in connection with her motion will, however, be denied. ORDER For the reasons stated in the foregoing memorandum, the motion of Jessica Schmid for summary judgment (Docket No. 9) is ALLOWED and her motion to strike (Docket No. 22) is DENIED. So ordered.	{ "pile_set_name": "FreeLaw" }
09-5203-ag Kastrati v. Holder BIA Morace, IJ A094 896 344 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 12th day of November, two thousand ten. PRESENT: JON O. NEWMAN, GUIDO CALABRESI, ROBERT A. KATZMANN, Circuit Judges. ______________________________________ BESART KASTRATI, Petitioner, 09-5203-ag v. NAC ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent. ______________________________________ FOR PETITIONER: Sokol Braha, New York, New York. FOR RESPONDENT: Tony West, Assistant Attorney General; Ada E. Bosque, Senior Litigation Counsel; Puneet Cheema, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C. UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED. Besart Kastrati, a native and citizen of Kosovo, seeks review of a December 2, 2009 decision of the BIA affirming the February 15, 2008 decision of Immigration Judge (“IJ”) Philip L. Morace denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Besart Kastrati, No. A094 896 344 (B.I.A. Dec. 2, 2009), aff’g No. A094 896 344 (Immig. Ct. N.Y. City Feb. 15, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case. “Where, as here, the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, we will review both the BIA’s and IJ’s opinions – or more precisely, we review the IJ’s decision including the portions not explicitly discussed by the BIA.” Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). Under the circumstances of this 2 case, “we review the IJ’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008) (quoting 8 U.S.C. § 1252(b)(4)(B)). When evaluating credibility determinations for substantial evidence, we afford “particular deference” to the IJ. We must assess whether the IJ has provided “specific, cogent reasons for the adverse credibility finding and whether those reasons bear a legitimate nexus to the finding.” “Where the IJ’s adverse credibility finding is based on specific examples . . . of inconsistent statements” or “contradictory evidence,” a “reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (citations omitted). Here, the agency reasonably determined that Kastrati did not credibly establish that he had a well-founded fear of persecution upon return to Kosovo on account of his political opinions. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)(ii); Yueqing Zhang v. Gonzales, 426 F.3d 540, 544-45 (2d Cir. 2005). We conclude that the agency’s adverse credibility determination was supported by substantial evidence given the inconsistencies between Kastrati’s testimony at his merits hearing and his previous 3 statements, and given Kastrati’s failure to provide evidence to corroborate his claims regarding the motivations behind the bombing of his house. In supporting its adverse credibility determination, the agency reasonably relied on an inconsistency between, on the one hand, Kastrati’s statement in his asylum application that he took threats he received in December 2005 lightly, and, on the other, his testimony at the merits hearing that he reported these threats to the police and that these threats were central to his fear of persecution. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 167. The agency also reasonably relied on an inconsistency between Kastrati’s statement during his credible fear interview that, with respect to his affiliation with the Democratic League of Kosovo (“LDK”), he was not an activist, but rather only a sympathizer, and his hearing testimony that he was in fact a political activist engaged in a variety of political activities. See Ming Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009). Furthermore, the agency did not err in relying in part on the lack of corroboration for Kastrati’s claim that the bombing of his house had a political motive and targeted him specifically. See Biao Yang v. Gonzales, 496 F.3d 268, 273 4 (2d Cir. 2007) (holding that “[a]n applicant’s failure to corroborate his or her testimony may bear on credibility, because the absence of corroboration in general makes an applicant unable to rehabilitate testimony that has already been called into question”). The IJ attributed significance to this lack of corroboration in light of, inter alia, the existence of documentary evidence indicating that Kastrati’s cousin was killed by a police officer because of a family or personal feud rather than, as Kastrati claimed, because his cousin supported the LDK. Although Kastrati argues that the IJ erred in relying on Kastrati’s lack of knowledge of the circumstances of his cousin’s death, the IJ did not base his adverse credibility finding on this lack of knowledge. Instead, the IJ reasonably considered the evidence indicating that Kastrati’s cousin was killed for reasons other than political ones as casting doubt upon Kastrati’s related, uncorroborated claim regarding the bombing of his house. See 8 U.S.C. § 1158(b)(1)(b)(ii); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir. 2006). Because the agency’s adverse credibility determination is supported by substantial evidence and because Kastrati’s claims depend on the testimony determined not to be credible, the agency did not err in denying asylum or 5 withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). We decline to address the denial of Kastrati’s CAT claim, as it was not sufficiently challenged in his brief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005). For the foregoing reasons, the petition for review is DENIED. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 6	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 10-1382 ___________ United States of America, * * Plaintiff-Appellee, * * Appeal from the United States v. * District Court for the Northern * District of Iowa. Brandon Patrick Calmese, also known * as Renegade, * [UNPUBLISHED] * Defendant-Appellant. * ___________ Submitted: October 18, 2010 Filed: October 21, 2010 ___________ Before MUPRHY, BEAM, and BENTON, Circuit Judges. ___________ PER CURIAM. Brandon Patrick Calmese pled guilty to distributing crack cocaine. The district 1 court sentenced Calmese to 130 months, the low end of his guideline range. He appeals his sentence, and we affirm. Calmese argues that the district court abused its discretion by adhering to the 70:1 crack to powder cocaine ratio laid out in the United States Sentencing Guidelines 1 The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa. rather than using a 1:1 ratio. He asserts that, in doing so, the district court imposed a greater than necessary sentence and created an unwarranted sentencing disparity within the district. See 18 U.S.C. § 3553(a)(6) (2006). We first review the district court's sentence for significant procedural error, employing "'a deferential abuse-of- discretion standard.'" United States v. Hayes, 518 F.3d 989, 995 (8th Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 41 (2007). Calmese's sentence was procedurally sound. The court knew it had "wide discretion to vary," but reflected that while it must "balance the discrepancy between the crack and the cocaine, [it] also ha[d] to look at the other factors that are involved." Sentencing Transcript at 32. Ultimately the district court found that Calmese's extensive criminal history warranted the sentence imposed. The district court was not required to adopt what Calmese cites as negative public sentiment against the crack guideline, see 18 U.S.C. § 3553(a), and it did not abuse its considerable discretion by declining to equate crack and powder at sentencing. United States v. Saddler, 538 F.3d 879, 891 (8th Cir. 2008). Calmese also argues for the first time on appeal that the court's use of the 70:1 guideline ratio causes an unwarranted disparity because the district's other active judge routinely employs a 1:1 ratio. We review this issue for plain error. United States v. Woods, 603 F.3d 1037, 1039 (8th Cir. 2010). Calmese cannot meet that standard. The district court imposed a sentence within the guideline range after considering all of the statutory factors. In a Rule 28(j) filing, Calmese cites a Department of Justice letter expressing concern about variation in sentencing subsequent to Booker v. United States, 543 U.S. 220 (2005). Letter from Jonathan J. Wroblewski to the Honorable William K. Sessions III, Chair, United States Sentencing Commission (June 28, 2010). This was not available to the district court, and the department's concern over a sentencing regime that has "largely lost its mooring to the sentencing guidelines," id. at 2, would hardly have supported Calmese's request for a variance. -2- Accordingly, the judgment of the district court is affirmed. ______________________________ -3-	{ "pile_set_name": "FreeLaw" }
Case: 14-40570 Document: 00513306003 Page: 1 Date Filed: 12/14/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 14-40570 Summary Calendar United States Court of Appeals Fifth Circuit FILED December 14, 2015 NELSON ROMERO, Lyle W. Cayce Clerk Petitioner-Appellant v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee Appeal from the United States District Court for the Southern District of Texas USDC No. 3:13-CV-98 Before REAVLEY, SMITH, and HAYNES, Circuit Judges. PER CURIAM: * Nelson Romero, Texas prisoner # 1127658, appeals the district court’s dismissal of his 28 U.S.C. § 2254 petition under FED. R. CIV. P. 41(b) for failure to prosecute and to comply with a court order. Romero urges that dismissal was error. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 14-40570 Document: 00513306003 Page: 2 Date Filed: 12/14/2015 No. 14-40570 A district court may sua sponte dismiss an action for failure to prosecute or obey a court order. Fed. R. Civ. P. 41(b); McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). The district court stated that dismissal was without prejudice, but, because the § 2254 petition would have been time-barred at the time of dismissal, it was effectively with prejudice. See Gray v. Fidelity Acceptance Corp., 634 F.2d 226, 227 (5th Cir. 1981); see also 28 U.S.C. § 2244(d). Therefore, although review is for an abuse of discretion, a heightened standard applies. Coleman v. Sweetin, 745 F.3d 756, 766 (5th Cir. 2014). This court will affirm “only where a clear record of delay or contumacious conduct by the plaintiff exists and a lesser sanction would not better serve the interests of justice.” Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326 (5th Cir. 2008) (internal quotation marks and citations omitted); see Coleman, 745 F.3d at 766 & n.8. The district court’s dismissal was based on Romero’s failure to comply with its Order for an Answer, requiring him to respond to any dispositive motion within 30 days. Romero asserts that during that period he filed a motion for extension of time that was lost in the mail. But even if he did not, his failure to comply with a single court order, particularly in light of his almost immediate attempt to rectify his failure through the filing of a motion for reconsideration, did not amount to a clear record of delay or contumacious conduct warranting a dismissal with prejudice. See Millan, 546 F.3d at 326- 27; see also McNeal v. Papasan, 842 F.2d 787, 791 (5th Cir. 1988). Moreover, there is no discussion in the record of other, lesser sanctions. See Millan, 546 F.3d at 326. Accordingly, under the circumstances described, the dismissal of Romero’s § 2254 petition was an abuse of discretion. The judgment is 2 Case: 14-40570 Document: 00513306003 Page: 3 Date Filed: 12/14/2015 No. 14-40570 VACATED, and the case is REMANDED for further proceedings. We express no opinion on the merits of his underlying habeas petition. 3	{ "pile_set_name": "FreeLaw" }
Affirmed and Memorandum Opinion filed April 2, 2013. In The Fourteenth Court of Appeals NO. 14-11-01079-CV ADEDAYO J. FASHAKIN, Appellant V. FEDERAL HOME LOAN MORTGAGE CORPORATION, Appellee On Appeal from the County Court at Law No 3 Fort Bend County, Texas Trial Court Cause No. 10-CCV-043635 MEMORANDUM OPINION Appellant, Adedayo J. Fashakin, appeals a summary judgment in favor of appellee, Federal Home Loan Mortgage Corporation (“Freddie Mac”), in a forcible detainer action. In three issues, Fashakin contends the trial court erred by granting summary judgment because Freddie Mac did not establish it gave the statutorily- required notice to vacate and certain evidence offered by Freddie Mac to prove such notice was inadmissible. We affirm. I. BACKGROUND On August 3, 2010, pursuant to a Deed of Trust, the mortgagee foreclosed on a home owned by Fashakin in Sugar Land, Texas. Freddie Mac bought the property at the foreclosure sale. Freddie Mac instituted a forcible detainer action when Fashakin remained in possession of the premises after the foreclosure sale. Freddie Mac filed the action in a justice court, which denied the requested relief after a bench trial. Freddie Mac appealed to the county court at law. Freddie Mac filed a motion for summary judgment, to which Fashakin responded. On September 13, 2011, the trial court signed an Amended Final Judgment, granting the motion for summary judgment and awarding Freddie Mac possession of the property. Fashakin filed a motion for new trial, which was denied by written order. Fashakin deposited into the registry of the court a $20,000 cash bond to supersede enforcement of the writ of possession pending this appeal. II. ANALYSIS In his first issue, Fashakin generally asserts that the trial court erred by granting summary judgment. In his second issue, Fashakin more specifically argues that Freddie Mac failed to establish it gave the requisite notice to vacate before filing the forcible detainer action. In his third issue, Fashakin asserts the trial court erred in considering a United States Postal Service (“USPS”) report filed by Freddie Mac. 2 A. Standard of Review and Applicable Law A party moving for traditional summary judgment must establish there is no genuine issue of material fact and it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). A plaintiff moving for summary judgment must conclusively prove all essential elements of its claim. Cullins v. Foster, 171 S.W.3d 521, 530 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (citing MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986)). We review a summary judgment de novo. Knott, 128 S.W.3d at 215. We take all evidence favorable to the nonmovant as true and indulge every reasonable inference and resolve any doubts in his favor. Id. It is undisputed that Fashakin is a tenant by sufferance pursuant to the Deed of Trust, based on his continuing occupation of the premises following the foreclosure sale. A tenant by sufferance “who refuses to surrender possession of real property on demand commits a forcible detainer.” Tex. Prop. Code Ann. § 24.002(a)(2) (West 2000). The demand for possession must be made in writing by a person entitled to possession of the property and comply with the requirements for notice to vacate under Property Code section 24.005. Id. § 24.002(b); see id. § 24.005 (West Supp. 2012). Under section 24.005, “the landlord must give [a tenant at sufferance] at least three days’ written notice to vacate before the landlord files a forcible detainer suit unless the parties have contracted for a shorter or longer notice period in a written lease or agreement.” Id. § 24.005(b). The notice to vacate shall be given in person or by mail at the premises in question. Id. § 24.005(f). As applicable to the present case, notice by mail “may be by regular mail, by registered mail, or by certified mail, return receipt requested, to the premises in question.” Id. The notice period is calculated from the day on which 3 the notice is delivered. Id. § 24.005(g). A notice to vacate shall be considered a demand for possession for purposes of section 24.002(b). Id. § 24.005(h). Because forcible detainer is a statutory cause of action, a landlord must strictly comply with its requirements. Kennedy v. Andover Place Apartments, 203 S.W.3d 495, 497 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Proper notice is an element of a forcible detainer action. See Tex. Prop. Code Ann. §§ 24.002, 24.005; Murphy v. Countrywide Home Loans, Inc., 199 S.W.3d 441, 446– 447 (Tex. App.—Houston [1st Dist.] 2006, pet. denied); Stephens v. Williams, No. 02-11-00376-CV, 2012 WL 3115826, at 1 (Tex. App.—Fort Worth Aug. 2, 2012, no pet.) (mem. op.). B. Summary Judgment Evidence In its motion for summary judgment, Freddie Mac asserted it provided the requisite three days’ notice to vacate by certified and regular mail. In support, Freddie Mac attached the following exhibits: (1) the affidavit of Mario Valverde, custodian of records for the law office of Freddie Mac’s attorney1; (2) a copy of a letter dated September 12, 2010 (nine days before Freddie Mac filed its forcible detainer action), addressed to Fashakin “and/or All Current Occupants” of the subject property address and demanding he/they vacate the premises no later than three days after receipt of the letter; (3) a copy of the face of a certified-mail envelope with postage affixed; and (4) a printout of a “Track and Confirm” report from the website of USPS relative to the certified mailing. Fashakin contends that Freddie Mac failed to establish that the above- referenced letter was delivered to Fashakin or the premises because the Track and 1 The business records affidavit of Mario Valverde tracked the form set out in Texas Rule of Evidence 902(10)(b). See Tex. R. Evid. 902(10)(b). 4 Confirm report shows that USPS attempted unsuccessfully to deliver the certified mailing on September 15, 2010 and left a notice at the premises. Further, in his summary judgment response, Fashakin presented an additional Track and Confirm report showing the certified mailing was ultimately delivered to an address in Dallas with a zipcode matching that of Freddie Mac’s attorney. Fashakin asserts, and Freddie Mac does not dispute, this latter report shows the certified mailing was returned unclaimed. Nonetheless, Freddie Mac contends that it complied with the statute because the letter was delivered via first class mail. Freddie Mac asserts that proof of first class mailing is proof of delivery unless the tenant negates that the letter was received, and here, Fashakin did not assert or present evidence that he did not receive the letter. When a letter, properly addressed and postage prepaid, is mailed, there exists a presumption that the notice was duly received by the addressee. Thomas v. Ray, 889 S.W.2d 237, 238 (Tex. 1994). This presumption may be rebutted by an offer of proof of non-receipt. Id. In the absence of proof to the contrary, the presumption has the force of a rule of law. Id.; see Kaldis v. U.S. Bank Nat’l Ass’n, No. 14-11-00607-CV, 2012 WL 3229135, at 1, 3 (Tex. App.— Houston [14th Dist.] Aug. 9, 2012, pet. dism’d w.o.j.) (mem. op.) (holding, in forcible detainer action, that landlord established delivery of notice to vacate by proving that, although letters sent to tenant by certified mail were returned unclaimed, letters sent by first class mail were not, and trial court was free to disbelieve tenant’s testimony during bench trial that he did not receive the first class letters); Ramey v. Bank of New York, No. 14-06-00824, 2010 WL 2853887, at 3 (Tex. App.—Houston [14th Dist.] July 22, 2010, no pet.) (mem. op.) (holding landlord established delivery of notice to vacate because it proved letter was sent to 5 tenant by certified and first class mail and there was no evidence negating receipt of the first class letter). In its motion for summary judgment, Freddie Mac states, “The business records affidavit attached [of Mario Valverde] establishes that on September 12, 2010, the law offices of [Freddie Mac’s attorney] mailed a notice to vacate the property to [Fashakin] and/or all current occupants of the subject property by both first class and certified mail.” The copy of the letter attached to Valverde’s business records affidavit is on the letterhead of Jack O’Boyle & Associates and reads, in part: September 12, 2010 Certified Mail Return Receipt Requested ADEDAYO J FASHAKIN and/or all Current Occupants of 14830 Jackson Sawmill Lane Sugar Land, TX 77478 Re: Notice to Vacate and Demand for Possession Notice of Termination of Lease My Client: Federal Home Loan Mortgage Corporation Dear Adedayo J Fashakin and/or All Occupants ... Sincerely yours, /s/ Jack O’Boyle cc: First Class Mail The copy of the letter reflects the hand-written signature of Jack O’Boyle. The letter specifically records the act or event of the mailing of the letter by both 6 “Certified Mail Return Receipt Requested” and by “First Class Mail.” The letter constitutes a business record of the law firm, it was properly filed as evidence in the summary judgment proceeding, and it constitutes evidence that the notice to vacate was sent to Fashakin by regular mail and certified mail on September 12, 2010.2 See Jimmerson v. Homecomings Financial L.L.C., No. 02-07-00305-CV, 2008 WL 2639757, at 2 n.3 (Tex. App.—Fort Worth July 3, 2008, no pet.) (mem. op.) (top of notice to vacate stated “CERTIFIED MAIL, RETURN RECEIPT REQUESTED” and “FIRST CLASS REGULAR MAIL,” which constituted evidence that the notice was mailed both by certified mail and regular mail).3 We hold that Freddie Mac established delivery of the notice to vacate because it provided summary judgment evidence that the letter was sent to Fashakin by certified and first class mail, and there was no controverting summary judgment evidence negating receipt of the first class letter. See Ramey, 2010 WL 2853887, at *3. In light of our holding, Fashakin’s issue three is moot. We overrule all of Fashakin’s issues. We affirm the judgment. /s/ Margaret Garner Mirabal Senior Justice Panel consists of Justices Boyce, McCally, and Mirabal.4 2 The mailing on that date is corroborated by the additional attachment to the affidavit of a copy of the certified mail envelope addressed to Fashakin at the subject property address, with postage affixed dated September 12, 2010. 3 Fashakin relies on the distinguishable case of Strobel v. Marlow, 341 S.W.3d 470, 472, 476–77 (Tex. App.—Dallas 2011, no pet.). In Strobel, the opposing party offered proof of non- receipt, and the mode of alleged transmission was via fax. 4 Senior Justice Margaret Garner Mirabal sitting by assignment. 7	{ "pile_set_name": "FreeLaw" }
NO. 07-03-0533-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C MAY 27, 2004 ______________________________ IN THE MATTER OF THE MARRIAGE OF KAREN SUE BEDFORD AND STEVEN EDWARD BEDFORD _________________________________ FROM THE 320TH DISTRICT COURT OF POTTER COUNTY; NO. 67,701-D; HONORABLE DON EMERSON, JUDGE _______________________________ Before JOHNSON, C.J., and QUINN and REAVIS, JJ. MEMORANDUM OPINION Appellant Steven Edward Bedford filed a "request for an appeal" challenging an agreed final decree of divorce. (1) The clerk's record was filed on January 21, 2004; however, no reporter's record was filed. Appellant's brief was due to be filed on February 20, 2004, but has yet to be filed and no motion for extension of time was filed. By letter dated April 28, 2004, this Court notified attorney Bryan Adamson of the missed deadline and also directed him to reasonably explain the failure to file a brief with a showing that appellee has not been significantly injured by the delay on or before May 10, 2004. Counsel did not respond and the brief remains outstanding. Accordingly, we dismiss this appeal for want of prosecution and failure to comply with an order of this Court. See Tex. R. App. P. 42.3(b) & (c). Don H. Reavis Justice 1. The signature line on the request for an appeal was not signed by appellant and attorney Bryan Adamson signed the request as "reviewed in substance." Rule 6.1 of the Texas Rules of Appellate Procedure provides that the attorney whose name first appears on the notice of appeal is lead counsel. cluded four Texas Rangers, two Department of Public Safety officers and two local officers, conducted surveillance for two to three hours before they entered the property and arrested appellant. During their surveillance, some officers watched the back of the property. During that time, they saw appellant and no one else. The officers observed appellant walk back and forth between the sewing room and the barn a couple of times. Three or four times, they also saw appellant come out of the barn and walk to the area between the lawn mower shed and a tractor parked next to that shed. From their locations, the officers could not see appellant after he went between the tractor and the shed. (1) One officer testified that he noticed appellant once threw something toward a trash pile when he came out from behind the tractor. The officer believed the item appellant threw was a can. Other officers observed the front of the residence. They also saw appellant leave the barn and disappear and re-appear several times. They saw only one person come out of the sewing room, the appellant. After officers arrested appellant near the barn, they secured the main residence and the sewing room. (2) Some officers detected the smell of ether (3) and traced the smell to the lawn mower shed. They found, "in plain sight" inside the shed, a metal pot that contained a plastic fruit drink jug. The jug contained a liquid that was bubbling. One Ranger who had served in the DPS narcotics service testified: "When I first observed . . . the bottle within the tub here, it was boiling very rapidly. The second time - a short time later, I should say, I went back and looked at the tub again, or the bottle that was there, and it had stopped bubbling or boiling." He described the setup as a methamphetamine laboratory. Another Ranger, also with previous DPS narcotics service experience, described the jug's contents as an "active cook." He said the liquid's movement indicated a chemical reaction was occurring in the jug, and that it appeared to him to be "a methamphetamine production." Testimony from a DPS chemist confirmed the liquid contained methamphetamine. A bottle of muriatic acid was located inside the shed, and the record includes testimony that muriatic acid is a common ingredient used in one method of manufacturing methamphetamine. One of the officers examined the trash pile where it was believed appellant had thrown a can and the officer found several starter-fluid cans that had been punctured. One of the officers testified that starter fluid is a component in the manufacture of methamphetamine and that it is common to find starter-fluid cans with holes punched in them around meth labs. During the pat-down search of appellant following his arrest, an officer found a syringe in appellant's front shirt pocket. The officer characterized the syringe as "drug paraphernalia." Evidence also showed there were also several propane bottles behind the sewing room, some having fittings that were turquoise in color. One of the officers testified that anhydrous ammonia will turn brass fittings turquoise and that it is a key ingredient in the manufacture of methamphetamine. Inside the sewing room, officers found a jewelry box with a mirrored top that contained another syringe. Officers testified that "meth" is commonly ingested by use of a syringe. Another officer described the jewelry box as a "drug kit." Appellant testified in his defense. He testified he was working on a car in the barn with Cecil Johnson the morning of his arrest. He indicated he had just bought the car, was cleaning it out and found the needle inside. He testified he was worried about his wife and baby, and checked on them in the sewing room frequently. He denied entering the lawnmower shed, going behind the tractor, throwing anything in the trash pile, and manufacturing methamphetamine. He admitted to his prior convictions for burglary in Oklahoma and Texas. After the jury convicted appellant of manufacture of a controlled substance, he filed a motion for new trial alleging two grounds: (1) a material witness was afraid to appear in court based upon what appeared to be threats or promises by the local law enforcement; and (2) misconduct by jurors. The trial court did not hold a hearing on the motion for new trial and the motion was overruled by operation of law. On appeal, appellant raises four issues, contending: (1) the trial court erred in denying his motion for instructed verdict because the evidence is legally insufficient to convict; (2) the evidence is factually insufficient to convict; (3) the trial court erred in failing to hold an evidentiary hearing on his motion for new trial; and (4) the trial court erred in denying the motion for new trial. Issues One and Two - Sufficiency of the Evidence When deciding whether evidence is legally sufficient to support a conviction, a reviewing court must assess all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005). The standard is the same in both direct and circumstantial evidence cases. Burden v. State, 55 S.W.3d 608, 612-13 (Tex.Crim.App. 2001). When conducting a factual sufficiency review, we review the evidence in a neutral light. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). However, we must be deferential to the jury's findings and resist intruding on the fact finder's role as the sole judge of the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). When considering factual sufficiency of the evidence, we must address the most important evidence that the appellant contends undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). A person violates section 481.112 of the Health and Safety Code if he knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 1. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (Vernon 2003). "Manufacture" is defined as "the production, preparation, propogation, compounding, conversion, or processing of a controlled substance other than marihuana, directly or indirectly by extraction from substances of natural origin, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis . . . ." Id. at § 481.002(25). Appellant's contention in support of his first issue is not that the evidence of manufacturing was lacking, but that the evidence failed to show he was involved in that activity. To obtain a conviction for the manufacture of a controlled substance, the State must link the defendant either to an interest in the place where the manufacturing was taking place or to the actual act of manufacturing. See McGlothin v. State, 2006 WL 2773798, 2 (Tex.App.-Fort Worth Sept. 28, 2006, pet. ref'd); Riggs v. State, 2005 WL 2476267, 2 (Tex.App.-Eastland October 6, 2005, pet. ref'd) (both citing East v. State, 722 S.W.2d 170, 172 (Tex.App.-Fort Worth 1986, pet. ref'd). In the present case, the State successfully linked appellant with the manufacture of methamphetamine. A conclusion of guilt can rest on the combined and cumulative force of all incriminating circumstances. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001). While the presence of an accused at the scene of an offense is not alone sufficient to support a conviction, it is a circumstance tending to prove guilt, which combined with other facts, may suffice to show that the accused was a participant. Mullins v. State, 173 S.W.3d 167, 174 (Tex.App.-Fort Worth 2005, no pet.) (citing Beardsley v. State, 738 S.W.2d 681, 685 (Tex.Crim.App. 1987)). In this case, appellant was not merely present on the property during the offense; he had lived there for about ten days prior to his arrest. Although appellant testified it was not unusual to smell strong odors on the property because of a nearby dairy farm, the jury could infer appellant's awareness of the chemical process from testimony describing the strong odor of ether that was present. See McGlothin, 2006 WL 2773798 at 2 (citing East, 722 S.W.2d at 172) (defendant was aware of his surroundings that contained evidence of methamphetamine manufacturing). Photographs in evidence confirm that the tractor mentioned in testimony was parked next to the only opening in the lawn mower shed, and that the metal pot and jug would be readily visible inside the shed to a person walking to the rear of the tractor. Shortly after appellant's arrest, and following a period of two to three hours when appellant was the only person observed in the area, officers found the "active cook" underway. Evidence appellant emerged from that area on one occasion carrying an item he threw toward the trash pile indicates he engaged in some activity while out of sight behind the tractor. These circumstances, coupled with testimony that he repeatedly walked to the location of the manufacturing activity, viewed in the light most favorable to a guilty verdict, would permit a rational jury to conclude beyond a reasonable doubt that appellant was not simply aware of the unlawful activity taking place, but was engaged in it. See Riggs, 2005 WL 2476267 at 2 (stating appellant was clearly aware of his surroundings that contained evidence of methamphetamine manufacturing and the strong smell); see also East, 722 S.W.2d at 172 (stating there is a link to manufacturing when there is "evidence of possession of a drug lab on one's premises combined with evidence that the lab has been used on the premises to manufacture the drug alleged, and in circumstances where the presence of the lab, because of its open location or odor or both, is shown to have been known to the defendant"). We overrule appellant's first issue on appeal. In support of his contention the evidence is factually insufficient, appellant points to the testimony of his father that others had access to the premises and to the testimony of his brother's former girlfriend, to the effect that the brother had engaged in methamphetamine manufacturing. Appellant also emphasizes his own description of his activities just preceding his arrest and the absence of testimony directly connecting him with the manufacturing. Viewing all the evidence in a neutral light, we find that the evidence supporting the jury's verdict is not so weak that the verdict is clearly wrong and manifestly unjust or that the contrary evidence is so strong that the standard of proof of beyond a reasonable doubt could not have been met. Russeau v. State, 171 S.W.3d 871, 878 (Tex.Crim.App. 2005). Appellant's second issue is overruled. Issues Three and Four - Motion for New Trial Appellant's third issue questions the trial court's denial of a hearing on his motion for new trial. We review the denial of a hearing on a motion for new trial under the abuse of discretion standard. Wallace v. State, 106 S.W.3d 103, 108 (Tex.Crim.App. 2003); Reyes v. State, 849 S.W.2d 812, 815 (Tex.Crim.App. 1993). A hearing is not required when the matters raised in the motion for new trial are subject to being determined from the record. Reyes, 849 S.W.2d at 816. But a defendant is entitled to a hearing on a motion for new trial if the motion and accompanying affidavit(s) raise matters not determinable from the record on which he could be entitled to relief. Wallace, 106 S.W.3d at 108. The affidavit must specifically show the "truth of the grounds for attack." Martinez v. State, 74 S.W.3d 19, 21 (Tex.Crim.App. 2002) (citing King v. State, 29 S.W.3d 556, 569 (Tex.Crim.App. 2000)). Appellant's motion for new trial had two attachments. We must determine whether they show reasonable grounds for relief. Jordan v. State, 883 S.W.2d 664, 665 (Tex.Crim.App. 1994). If appellant's motion and affidavits are sufficient, a hearing on the motion is mandatory. Id. Appellant first attached an affidavit made by his wife in support of his contention of jury misconduct. Appellant argues on appeal that the affidavit showed he could be entitled to a new trial under Rule of Appellate Procedure 21.3(f) because it shows jurors talked with others about the case. Tex. R. App. P. 21.3(f). In her affidavit, appellant's wife states the following: While waiting with [appellant] outside of the courtroom, in Wellington, Collingsworth County, Texas, I saw some of the Jury members talking to the officer who was in charge of the jury. They were talking for a number of minutes. When they made eye contact with me, they had a surprised look on their face. I saw this before the guilty verdict was made. I also saw three Jury members talking about the "White Jug" after the break at the beginning of the trial. The affidavit first contains appellant's wife's statement she saw jury members talking for a number of minutes with the officer in charge of the jury. By statute, the bailiff is to "attend the wants of the jury . . . ." TEX. CODE CRIM. PROC. ANN. art. 36.24 (Vernon 2006). The affidavit contains no information about the topic of the jurors' conversation with the bailiff. It therefore does not show that the conversation provided reasonable grounds for relief under Rule 21.3(f). (4) See Stults v. State, 23 S.W.3d 198, 206-07 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (defendant's burden to show conversation was "about the case" not satisfied when evidence did not show what juror and witness were talking about). See also King, 29 S.W.3d at 569 (assertion in affidavit that jury was fond of bailiff did not establish improper influence). The affidavit contains also the affiant's statement she saw three jurors talking about the "White Jug." On its face, the brief statement does not show that appellant's wife was in a position to know the contents of their conversation, since she merely "saw" the jurors talking. That alone supports the trial court's decision not to hold a hearing on appellant's motion. Assuming that appellant's wife meant she heard the jurors discussing the "White Jug," and assuming further that their discussion concerned the plastic jug admitted in evidence, the trial court nonetheless reasonably could have concluded the affidavit does not demonstrate reasonable grounds exist for relief under Rule 21.3(f). Appellant does not cite, and we have not located, authority applying the phrase "when a juror has talked with anyone about the case" in Rule 21.3(f) to a conversation among jurors. See, e.g., Quinn v. State, 958 S.W.2d 395, 401 (Tex.Crim.App. 1997) (referring to conversation between a juror and an "unauthorized" person). (5) The second attachment to appellant's motion for new trial is a statement signed by Cecil Johnson. (6) The statement indicates Johnson was present on the property that morning and that police scared him with a threat to put him in jail if he "came back around." Appellant contends the statement shows a material defense witness has been kept from court by threats, supporting his entitlement to a new trial under Rule of Appellate Procedure 21.3(e). We agree with the State that the trial court was not required to consider Johnson's statement. To constitute an affidavit, an instrument must be sworn to. Esquivel v. State, 595 S.W.2d 516, 523 (Tex.Crim.App. 1980). To be sworn, a statement must unequivocally represent that its contents are true. In Interest of Simpson, 932 S.W.2d 674, 677 (Tex.App.-Amarillo 1996, no writ ). The signature and stamp of a notary public appears at the end of Johnson's statement, but the statement contains no jurat. Johnson's signature appears in a concluding sentence that reads, "I [signature of Cecil Johnson], swear, this is my testimony to the best of my knowledge, on this date 6th of February (sic) 2006." Johnson's statement does not meet the requirements of an affidavit. See Reyes, 849 S.W.2d at 816 (discussing requirement of affidavit accompanying motion for new trial); Garcia v. State, 960 S.W.2d 329, 334 (Tex.App.-Corpus Christi 1997, no pet.) (unsworn assertion insufficient as affidavit). We find the trial court did not abuse its discretion by failing to hold a hearing on appellant's motion for new trial, and overrule his third issue. In his fourth issue, appellant contends the trial judge erred in failing to grant his motion for new trial. We review the trial court's denial of a motion for new trial under the abuse of discretion standard. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App. 1995). We do not substitute our judgment for that of the trial court, but rather decide whether the trial court's decision was arbitrary or unreasonable. Id. For the same reasons we have concluded the court did not abuse its discretion by denying appellant a hearing on his motion for new trial, we find also the trial court's denial of the motion was not arbitrary or unreasonable. We overrule appellant's fourth issue on appeal and affirm the judgment of the trial court. James T. Campbell Justice Do not publish. 1. As one officer described it as he testified with the aid of a photograph showing the tractor and shed, "The Defendant would . . . walk in this area right here and would disappear between this tractor and this building right here." 2. Testimony indicated no one was found in the main residence, and appellant's wife and baby were in the sewing room. 3. One officer testified he smelled the ether while inside the sewing room. 4. Indeed, the affidavit does not even show that appellant's wife was in a position to know the contents of the conversation. See Dugard v. State, 688 S.W.2d 524, 528 (Tex.Crim.App. 1985), overruled on other grounds, Williams v. State, 780 S.W.2d 802, 803 (Tex.Crim.App. 1989) (complaint of jury misconduct requires affidavit of juror or some other person in position to know the facts, or must state some reason or excuse for failing to produce affidavit). 5. We note also that nothing about appellant's wife's statement suggests the jurors' discussion involved an outside influence, as that term has been applied by Texas courts. See Ford v. State, 129 S.W.3d 541, 550 (Tex.App.-Dallas 2003, pet. ref'd) (criminal case citing Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 370 (Tex. 2000) and applying Texas Supreme Court's analysis that "outside influence" originates from sources other than jurors). The trial court also could have reasonably concluded, therefore, that Rule of Evidence 606(b) would prohibit any testimony by the jurors concerning any effect of that conversation on their deliberations. 6. Cecil Johnson is the man appellant testified was working with him on the car on the date of the arrest.	{ "pile_set_name": "FreeLaw" }
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JONATHAN RITCHIE, Individually and No. 11-16535 as the Personal Representative of the Estate of Gregory Ritchie, D.C. No. Plaintiff-Appellant, 1:10-cv-00209- JMS-BMK v. UNITED STATES OF AMERICA, OPINION Defendant-Appellee. Appeal from the United States District Court for the District of Hawaii J. Michael Seabright, District Judge, Presiding Argued and Submitted June 13, 2013—Honolulu, Hawaii Filed October 24, 2013 Before: Jerome Farris, Dorothy W. Nelson, and Jacqueline H. Nguyen, Circuit Judges. Opinion by Judge Nguyen; Concurrence by Judge Farris; Concurrence by Judge D.W. Nelson 2 RITCHIE V. UNITED STATES SUMMARY* Feres Doctrine The panel affirmed the district court’s dismissal under the Feres doctrine of a Federal Tort Claims Act wrongful death action brought against the United States. The plaintiff alleged that officers in the United States Army caused the death of his infant son by ordering his pregnant wife, a servicewoman on active duty, to perform physical training in contravention of her doctor’s instructions, which ultimately induced premature labor. The panel held that under the court’s own precedent, concerning claims by relatives of military personnel under the “genesis test,” the Feres doctrine barred plaintiff’s wrongful death claim. The panel also held that an “in utero” exception to Feres, employed by other circuits, did not apply. Judge Farris concurred in the result. Judge D.W. Nelson, joined by Judge Nguyen, concurred, and wrote separately to highlight the questionable validity of the Feres doctrine. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. RITCHIE V. UNITED STATES 3 COUNSEL Eric A. Seitz (argued), Della Au Belatti, and Ronald N.W. Kim, Honolulu, Hawaii, for Plaintiff-Appellant. Lowell V. Sturgill Jr. (argued), Appellate Staff Attorney, Civil Division, Department of Justice, Tony West, Assistant Attorney General, Florence T. Nakanuki, United States Attorney, Marleigh D. Dover, Appellate Staff Attorney, Washington, D.C., for Defendant-Appellee. OPINION NGUYEN, Circuit Judge: In this appeal, we again confront the much-maligned Feres doctrine, which immunizes the United States from liability for tort claims arising out of activities incident to military service. Feres v. United States, 340 U.S. 135 (1950). As with most of our Feres jurisprudence, the claims at issue arise from personal tragedy: the premature birth—and immediate death—of Jonathan Ritchie’s infant son, Gregory. Ritchie alleges that officers in the United States Army caused Gregory’s death by ordering his pregnant wife, a servicewoman on active duty, to perform physical training in contravention of her doctors’ instructions, which ultimately induced premature labor. The district court dismissed the action for lack of subject-matter jurisdiction, holding it was barred by Feres. The question before us is whether Ritchie’s wrongful death claim against the Army falls within the reach of the Feres doctrine. In light of Supreme Court and our own 4 RITCHIE V. UNITED STATES precedent, we regretfully conclude that it does. We therefore affirm. BACKGROUND The facts of this case are straightforward and uncontested. Ritchie’s complaint alleges that his wife, January Ritchie, was pregnant with their son Gregory while she was serving as a specialist on active duty with the United States Army. In June 2006, while January was stationed in Missouri, an Army physician created a “pregnancy profile” for her, which imposed a number of restrictions on her activities. Among other things, it indicated that January should not carry and fire weapons, move with “fighting loads,” engage in heavy lifting or physical training (“PT”) testing, or run/walk long distances. January was subsequently transferred to Fort Shafter, Hawaii. According to the complaint, her supervising officers at Fort Shafter were aware of her pregnancy, but repeatedly disregarded the instructions in her pregnancy profile, forcing her to engage in physical activities such as picking up trash and “battle-focused PT . . . even if she did not feel up to it.” Although January protested that she was unable to perform certain tasks due to her pregnancy, her commanding officers ignored her pleas. On August 7, 2006, January was forced to undergo an emergency cerclage procedure in an effort to prevent premature birth. Following this procedure, January’s doctors specifically informed Army personnel that due to her “high risk” condition, she would be unable to perform her normal work duties for the remainder of her pregnancy. Her commanding officers, however, continued to disregard her RITCHIE V. UNITED STATES 5 doctor’s instructions that she remain at “relative rest.” On August 26, 2006, the Ritchies’ son Gregory was born prematurely. He died approximately thirty minutes after birth. Following the denial of administrative claims, Jonathan Ritchie filed this action in district court on behalf of himself and Gregory’s estate, asserting claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), for loss of consortium and wrongful death. The district court subsequently dismissed the action for lack of subject matter jurisdiction, reasoning that Ritchie’s claims were barred under Feres.1 Ritchie timely appealed. STANDARD OF REVIEW We review de novo a district court’s determination that it lacked subject-matter jurisdiction. Atkinson v. United States, 825 F.2d 202, 204 (9th Cir. 1987). Further, we “review independently the question whether the Feres doctrine is applicable to the facts reflected in the record.” Persons v. United States, 925 F.2d 292, 294 (9th Cir. 1991) (citation and internal quotation marks omitted). 1 Because the district court concluded that this action was barred under Feres, it did not reach the jurisdictional question of whether the claims were filed after the two-year period set out in 28 U.S.C. § 2401(b). See Mann v. United States, 399 F.2d 672, 673 (9th Cir. 1968) (“Institution of suit within the two-year period [set forth in 28 U.S.C. § 2401(b)] is a jurisdictional requirement.”). 6 RITCHIE V. UNITED STATES DISCUSSION I. The FTCA waives the federal government’s sovereign immunity, rendering the United States liable “in the same manner and to the same extent as a private individual under like circumstances . . . .” 28 U.S.C. § 2674; see also 28 U.S.C. § 1346(b)(1). In 1950, however, the Supreme Court carved out a judicial exception to the FTCA, holding in Feres v. United States that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 340 U.S. 135, 146 (1950). It subsequently extended this principle—known informally as the “Feres doctrine”—in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977), to bar third-party claims which derive directly or indirectly from injuries to service members incident to military duty. See id. at 673 (“where the case concerns an injury sustained by a soldier while on duty, the effect of the action upon military discipline is identical whether the suit is brought by the soldier directly or by a third party”). The Feres doctrine is rooted in three policy rationales: (1) the distinctively federal nature of the relationship between the government and members of its armed forces, which argues against subjecting the government to liability based on the fortuity of the situs of the injury; (2) the availability of alternative compensation systems; and (3) the fear of damaging the military disciplinary structure. RITCHIE V. UNITED STATES 7 Id. at 671–72; Persons v. United States, 925 F.2d 292, 294–95 (9th Cir. 1991). For the past sixty-three years, the Feres doctrine has been criticized by “countless courts and commentators” across the jurisprudential spectrum. Id. at 295; see also United States v. Johnson, 481 U.S. 681, 700 (1987) (Scalia, J., dissenting) (“Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.”) (citation omitted); Costo v. United States, 248 F.3d 863, 875 (9th Cir. 2001) (“The articulated ‘rational bases’ for the Feres doctrine lead in this case, as in many cases, to inconsistent results that have no relation to the original purpose of Feres.”). However, neither Congress nor the Supreme Court has seen fit to reverse course. II. A. Although the Supreme Court has offered inconsistent guidance about how Feres should be applied, compare United States v. Shearer, 473 U.S. 52, 57 (1985) (holding that the third rationale should be considered “controlling”), with Johnson, 481 U.S. at 689–91 (reaffirming all three rationales), we have consistently emphasized the third rationale: “[t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty. . . .’” Stencel, 431 U.S. at 671–72 (citations omitted); see Costo, 248 F.3d at 866 (“[T]he danger to discipline . . . has been identified as the best explanation for Feres.”); Atkinson v. United States, 825 F.2d 202, 204 (9th Cir. 1987) (indicating that the military discipline rationale is 8 RITCHIE V. UNITED STATES “determinative”); Monaco v. United States, 661 F.2d 129, 132 (9th Cir. 1981) (“[T]he protection of military discipline . . . serves largely if not exclusively as the predicate for the Feres doctrine”); cf. Persons, 925 F.2d at 295 (observing that our Feres “jurisprudence has been guided by an increasing sense of awe for things military”). When considering whether claims by relatives of military personnel are barred by Feres, we employ a “genesis test,” asking whether the family member’s FTCA claim has its “genesis in injuries to members of the armed forces.” Grosinsky v. United States, 947 F.2d 417, 418 (9th Cir. 1991) (citations omitted). The test originated in Monaco v. United States, 661 F.2d 129 (9th Cir. 1981), in which the daughter of a serviceman, Denise Monaco, sued to recover damages under the FTCA for birth defects caused by her father’s unwitting exposure to atomic radiation during World War II.2 Id. at 133–34. In holding that her claim was barred under Feres, we reasoned: Denise’s case differs from Stencel in that she seeks relief for an injury to herself rather than indemnity for losses due to injury to her father, but this does not change the substantive analysis: the court still must 2 The underlying facts of Monaco are compelling: During World War II, David Monaco was stationed at the University of Chicago where, as a participant in the Army Specialized Training Program, he was required to exercise at the school’s football field. Id. at 130. Unbeknownst to him, underneath the stadium was a laboratory in which the government was conducting atomic experiments as part of the “Manhattan Project.” Id. In addition to giving Monaco colon cancer, the exposure to atomic radiation resulted in genetic abnormalities which caused his daughter to be born with severe birth defects. Id. RITCHIE V. UNITED STATES 9 examine the Government’s activity in relation to military personnel on active duty. It is precisely this type of examination the Feres doctrine seeks to avoid. Id. at 134 (emphasis added). Similarly, in Persons, we held that the widow and child of serviceman Kelly Persons, who committed suicide while off-duty after having been released from a naval hospital, could not sue the hospital for failing to warn them of Kelly’s condition and for loss of consortium. 925 F.2d at 295–97. Relying on Monaco, we concluded that these claims “must be viewed as ‘derivative’ claims, having their genesis in Kelly’s service-related death.” Id. at 297 (citations omitted).3 And in Grosinsky v. United States, 947 F.2d 417 (9th Cir. 1991), we dismissed under Feres the claim of a military wife who alleged that an Army surgeon’s negligently-performed vasectomy on her serviceman husband resulted in an unanticipated child. Id. at 418–19. Application of these cases compels the same conclusion here. Ritchie alleges that military personnel at Fort Shafter caused Gregory’s death by ordering January to engage in military duties against her doctor’s recommendations. That 3 In contrast, we held that the Persons’ claim for failure to provide adequate counseling was not Feres-barred, essentially because there was no causal nexus between the alleged injury and the Navy’s purported negligence with respect to Kelly Persons. See Persons, 295 F.2d at 298 (“[T]he hospital’s alleged breach of its duty [to provide adequate counseling] after the tragedy was completely independent of the purported negligence that led to Kelly’s demise. As such, it interrupted the causal chain running from the hospital’s purportedly negligent treatment of Kelly Persons and set in motion a new sequence of events.”). 10 RITCHIE V. UNITED STATES Gregory’s injury derived from January’s military service is, in other words, the core theory of his case. If adjudication of a claim involving an Army trainee’s exposure to radiation on a football field in Chicago would improperly require judicial examination of the Army’s activity in relation to military personnel, Monaco, 661 F.2d at 134, a fortiori, a claim challenging military orders given to a servicewoman on active duty likewise cannot escape Feres. And, if a claim for failure to warn family members of impending suicide derived from a service-related suicide, Persons, 925 F.2d at 297, a claim that military orders caused an infant’s wrongful death similarly derives from his mother’s military service. Ritchie attempts to distinguish Monaco on two grounds, neither of which is persuasive. First, he suggests that claims based upon genetic injuries differ from claims based upon injuries incurred in utero because the former are more purely derivative of injuries to the claimant’s servicemember parent. What mattered to the panel in Monaco, however, was not merely that Denise’s genetic injury derived entirely from injury to her father. Rather, the dispositive factor was that adjudication of her claim would require a court to “examine the government’s activity in relation to military personnel on active duty.”4 Monaco, 661 F.2d at 134. Perhaps recognizing this, Ritchie asserts that adjudication of this matter would not raise the specter of January haling her supervisors into court. Since January is not a named party, he reasons, officers would be questioned in court only 4 Even if Ritchie could distinguish Monaco on the grounds that it involved a genetic injury, that still would not get him past Persons or Grosinsky, which apply the genesis test in the context of medical malpractice and loss of consortium claims. RITCHIE V. UNITED STATES 11 on Gregory’s behalf. This argument misses the point. It does not matter if military officers are questioned by counsel for January or questioned by counsel representing Gregory’s estate—either way, adjudication of the claim would “involve second-guessing military orders, and would [ ] require members of the Armed Services to testify in court as to each other’s decisions and actions.” Stencel, 431 U.S. at 673; accord Cole v. United States, 755 F.2d 873, 878 (11th Cir. 1985) (“[I]t is the need to avoid the inquiry into military orders, and not the consequences of the inquiry, that justifies the military exclusion from the FTCA.”) (citation omitted). We can agree with Ritchie about one thing, though: it is unlikely that judicial scrutiny of the orders given to January would have a significant, deleterious effect on our military’s operation. After all, we are talking about orders commanding a pregnant woman to engage in physical activities such as picking up trash on a military base, not combat command decisions made in the heat of battle. Cf. Johnson, 481 U.S. at 699 (Scalia, J., dissenting) (“I do not think the effect upon military discipline is so certain, or so certainly substantial, that we are justified in holding (if we can ever be justified in holding) that Congress did not mean what it plainly said in the statute before us.”). On the other hand, however, given that this case centers on orders given by a military supervisor to his subordinate, it implicates the military discipline rationale of Feres in a far more immediate sense than cases involving medical malpractice claims.5 See, e.g., Grosinksy, 5 In a similar vein, we have construed the “incident to service” requirement broadly in non-third party cases applying Feres. See, e.g., Costo v. United States, 248 F.3d 863, 869 (9th Cir. 2001) (holding that Feres barred claims brought by the estates of sailors who drowned during a recreational rafting trip, which had been organized by the Navy). 12 RITCHIE V. UNITED STATES 947 F.2d at 417; Persons, 925 F.2d at 294; Atkinson, 825 F.2d at 203. In any event, we are not free to make this judgment call. Absent intervening controlling authority, we are bound by the decisions of prior three-judge panels. See Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc). And here, the decisions of prior three-judge panels could not be more clear: we have “consistently” barred claims under Feres “to avoid examining acts of military personnel which were allegedly negligent with respect to other members of the armed services.” Monaco, 661 F.2d at 134; Persons, 925 at 295 (“[P]ractically any suit that ‘implicates the military judgments and decisions,’ runs the risk of colliding with Feres.”) (citations omitted) (emphasis added). Accordingly, under our own precedent, Feres bars Ritchie’s wrongful death claim. B. In contending that our precedents are distinguishable, Ritchie focuses on a line of out-of-circuit cases involving allegedly negligent prenatal care at military hospitals, in which courts adopted an “in utero” exception to Feres. See, e.g., Brown v. United States, 462 F.3d 609, 616 (6th Cir. 2006); Lewis v. United States, 173 F. Supp. 2d 52, 56–57 (D.D.C. 2001), vacated in part on other grounds, 290 F. Supp. 2d 1 (D.D.C. 2003); Mossow v. United States, 987 F.2d 1365, 1369–70 (8th Cir. 1993); Romero v. United States, 954 F.2d 223, 226 (4th Cir. 1992); Del Rio v. United States, 833 F.2d 282 (11th Cir. 1987). He maintains that the “in utero” exception should apply equally here. We disagree. RITCHIE V. UNITED STATES 13 In contrast to the genesis test applied in our circuit, the “in utero” cases turn on whether the purportedly negligent acts caused injury only to the civilian fetus, or whether both the fetus and its servicemember parent were injured. Only where a fetus alone suffers injury can the claim survive Feres. For instance, in Romero, the leading “in utero” case, the claimants alleged that an infant’s cerebral palsy was caused by a military doctor’s failure to place sutures on the cervix of his servicewoman mother during the prenatal period.6 954 F.2d at 224. In holding that the infant’s FTCA claim was not Feres-barred, the Fourth Circuit reasoned that if the sutures had been properly administered, their “sole purpose . . . would have been directed at [the infant] Joshua.” Id. at 225. Then—without any citation to legal or medical authority—it opined that “[p]resumably [the mother’s] state of health would have been the same whether the physician placed the sutures or not.” Id. The court thus concluded that “[b]ecause no service person was injured [the infant’s] claim is not Feres-barred.” Id. at 226. Similarly, in Brown, the Sixth Circuit held that Feres did not bar the FTCA claim of Melody Brown, a child born with spina bifida after a military doctor told the child’s servicewoman mother to discontinue taking prenatal vitamins while trying to conceive. 462 F.3d at 610–11. The court reasoned that Melody’s prenatal injuries were “independent” 6 Like January Ritchie, Roxana Romero had been diagnosed with an “incompetent cervix.” Romero, 954 F.2d at 224. This condition “occurs when weak cervical tissue causes or contributes to premature birth or the loss of an otherwise healthy pregnancy.” Mayo Clinic, available at http://www.mayoclinic.com/health/incompetent-cervix/DS01198 (last visited October 16, 2013). In practical terms, this means that the cervix may “begin to open too soon—causing [a woman] to give birth too early.” Id. 14 RITCHIE V. UNITED STATES of any injury to her mother because prenatal vitamins “would have been [taken] solely for the benefit of the fetus.” Id. at 615–16. Contrary to what Ritchie argues, the “in utero” exception is inapposite here because, as we previously explained, our analysis is governed by Monaco and Persons. Absent a principled basis for distinguishing these cases, we must apply the genesis test they expound; we cannot simply substitute another circuit’s test for our own.7 See Miller, 335 F.3d at 899–900. Moreover, Ritchie’s claim does not easily map onto the “in utero” dispensation. While there is undeniably a medical aspect to this case, Ritchie’s claim is markedly different from the medical malpractice claims in Romero, Brown, and the like. The “in utero” cases concern medical judgments made by medical personnel at medical facilities; at issue here are military orders given by military supervisors on a military base. This distinction is important because, by challenging orders given by January’s military supervisors, Ritchie’s wrongful death claim implicates Feres’s concern about judicial interference in military personnel matters far more squarely than claims arising from a military doctor’s purportedly negligent medical judgment. In any event, given the facts of this case, it is unlikely that the “in utero” exception could save Ritchie’s wrongful death claim even if it did apply. Under the test applied by our sister circuits, a civilian fetus’s claim may only escape Feres if its 7 It is not enough that this case, like the “in utero” cases, concerns prenatal injuries. While pregnancy may present unique biological and/or philosophical considerations, see Atkinson v. United States, 825 F.2d 202, 207 (9th Cir. 1987) (Noonan, J., concurring), none justify departing from our reasoning in Monaco and Persons. RITCHIE V. UNITED STATES 15 servicewoman mother suffered no injury from the purportedly negligent acts. See Romero, 954 F.2d at 225–26. A plain reading of the allegations in Ritchie’s complaint forecloses such a finding here. Consider again what happened to January. During her second trimester of pregnancy, she was forced to perform physical tasks which caused her considerable pain, even though she told her supervisors that she did not feel well enough to carry out their orders. Due to her pain, she was later taken by ambulance to an emergency room, where her cervix was stitched shut. Her supervisors continued to disregard her doctor’s instructions, however, which ultimately induced her premature labor at five-and-half months. And, worst of all, her baby died half an hour after she gave birth. To hold that January was not injured at all, as Ritchie urges us to do, requires eschewing common sense and human experience. CONCLUSION We can think of no other judicially-created doctrine which has been criticized so stridently, by so many jurists, for so long. The Feres doctrine has generated pained affirmances from this circuit, e.g., Monaco, 661 F.2d at 134; Persons, 925 F.2d at 297; a forceful dissent by Justice Scalia (joined by Justices Brennan, Marshall, and Stevens), Johnson, 481 U.S. at 692–703 (Scalia, J., dissenting); and doctrinal contortions from our sister circuits, e.g., Romero, 954 F.2d at 224–25; Brown, 432 F.3d at 615–16. Yet, unless and until Congress or the Supreme Court choose to “confine the unfairness and irrationality that [Feres] has bred,” Johnson, 16 RITCHIE V. UNITED STATES 481 U.S. at 703, we are bound by controlling precedent. We therefore regretfully hold that Ritchie’s suit is barred by Feres. AFFIRMED. FARRIS, Circuit Judge, concurring: I concur in the result. D.W. NELSON, Circuit Judge, with whom NGUYEN, Circuit Judge, joins, concurring: I concur. I agree that our caselaw bars family member tort claims which have their genesis in injuries a servicemember sustains in the course of her service. See Persons v. United States, 925 F.2d 292, 295–97 (9th Cir. 1991); Monaco v. United States, 661 F.2d 129, 132–34 (9th Cir. 1981). I write separately because I wish to highlight how this case reveals the questionable validity of the Feres doctrine. Though we hinge our rejection of Ritchie’s claims, in part, on the supposed policy rationale that the judiciary should not intrude into military discipline, courts often review military decisions that contradict a military regulation. In these instances, we have held the military accountable to its own standards and its own representations. Yet, here, our Feres doctrine dooms any claims for compensation for the harms caused by the military’s failure to follow its own regulations RITCHIE V. UNITED STATES 17 governing pregnant servicewomen. Refusing to compensate a class of victims—servicewomen and their families—based on the fiction that judicial review in these cases will upend “military discipline” perpetuates a grave injustice. It is past time for the judiciary to reconsider its reasons for refusing compensation to servicemembers under the Federal Tort Claims Act (FTCA). I believe that the third policy rationale underpinning the Feres doctrine, preventing judicial interference with “the military discipline structure,” Persons, 925 F.2d at 295, has no relevance in cases where the military contravenes its own regulations and procedures. This case in particular highlights how this “determinative” and “most persuasive” policy rationale, see Atkinson v. United States, 825 F.2d 202, 204 (9th Cir. 1987); Schoenfeld v. Quamme, 492 F.3d 1016, 1019 (9th Cir. 2007) (internal quotation marks omitted), has become a guise for denying a selected class— servicemembers—remedies for otherwise judicially- cognizable wrongs. Of course, there is some sense in restricting judicial interference in discretionary military decision-making where the decisions are “inextricably intertwined with the conduct of the military mission.” United States v. Johnson, 481 U.S. 681, 691 (1987). Though, I would note this reasoning is not rooted in the common law tradition that allowed servicemembers to bring certain tort claims against their superior officers. See United States v. Stanley, 483 U.S. 669, 698–99 (1987) (Brennan, J., dissenting) (“At common law, even military superiors received no exemption from the general rule that officials may be held accountable for their actions in damages in a civil court of law.”). Nor is the broad bar of Feres supported by the text of the FTCA, which 18 RITCHIE V. UNITED STATES explicitly excludes only “claim[s] arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.” 28 U.S.C. § 2680(j); Johnson, 481 U.S. at 692 (Scalia, J., dissenting) (“The problem now, as then, is that Congress not only failed to provide such an exemption, but quite plainly excluded it.”). Unfortunately, the deferential reasoning of Feres has created an almost complete bar to servicemembers’ tort claims, regardless of whether the facts actually warrant judicial abstention. See Millang v. United States, 817 F.2d 533, 535 (9th Cir. 1987) (per curiam). We have described this inflexible and absolute bar as necessary to prevent “the type of claims that, if generally permitted, would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.” Id. at 535 (quoting United States v. Shearer, 473 U.S. 52, 59 (1985) (emphasis in original)). But that reasoning becomes a fiction in a case such as this, which does not involve discretionary military decision-making and instead involves the military’s contravention of its own regulations and procedures. See Jones v. N.Y. State Div. of Military & Naval Affairs, 166 F.3d 45, 52 (2d Cir. 1999); Murphy v. United States, 993 F.2d 871, 873 (Fed. Cir. 1993); see also Watkins v. U.S. Army, 875 F.2d 699, 705–11 (9th Cir. 1989) (en banc) (applying equitable estoppel to enjoin the U.S. Army from denying plaintiff’s reenlistment on the basis of his homosexuality); Bledsoe v. Webb, 839 F.2d 1357, 1360 (9th Cir. 1988) (“Indeed, courts often review cases in which military officials are alleged to have violated their own regulations.”). The Feres bar, then, prevents compensation for what would otherwise be judicially-reviewable acts in these cases. Cf. Wilkins v. United States, 279 F.3d 782, 784 (9th Cir. 2002) (holding that RITCHIE V. UNITED STATES 19 “the Feres bar does not extend to the claims for non-monetary relief”). Consider Ritchie’s factual allegations. The complaint specifically alleges that the military performed the required pregnancy profile for January, but then failed to follow the profile’s limited duty requirements, as well as the additional instructions of January’s doctor as the pregnancy became high risk. In Ritchie’s administrative claim for damages, he elaborates that January “was required to engage in physical exercise and other duties against the advice of her physician resulting in the loss of the pregnancy at twenty-two weeks.” Of course, at some level, these alleged wrongful orders can be viewed as part of “the military discipline structure,” since January’s refusal to follow them would have been a subordinate’s refusal to carry out an order. Yet, this does not mean that the responsible superior officers’ decisions to disregard military policy and regulations amount to discretionary, nonjusticiable acts. See Sterling v. Constantin, 287 U.S. 378, 401 (1932) (“What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.”). Quite the contrary, military decisions, carried out through the orders of military officers, that contravene military policies and regulations are judicially reviewable. See Wenger v. Monroe, 282 F.3d 1068, 1072 (9th Cir. 2002). Moreover, the military’s policies and actions towards pregnant servicewomen are not discretionary, but rather, are clearly matters the judiciary has jurisdiction to consider. See, e.g., Crawford v. Cushman, 531 F.2d 1114 (2d Cir. 1976) (invalidating on constitutional grounds the Marine Corps’ regulation which mandated the discharge of Marines for pregnancy). 20 RITCHIE V. UNITED STATES Here, the relevant Army regulation, AR 40-501, Chapter 7-9, requires that pregnant soldiers have a “pregnancy profile,” which includes a mandatory “occupational health interview to assess risks to the Soldier and fetus.” The regulation specifically directs commanders to “counsel all female Soldiers as required by AR 600-8-24 or AR 635-200”; “consult with medical personnel as required”; and “establish[] liaison with the occupational health clinic and request[] site visits by the occupational health personnel if necessary to assess any work place hazards.” AR 40-501, Chapter 7- 9(b)(3). The regulation then sets forth twelve specific limitations on the duties of pregnant soldiers during the term of their pregnancy, including scheduled mandatory rest periods, adding additional restrictions as the gestation period progresses. Id. at 7-9(d). For instance, “[a]t 28 weeks of pregnancy, the Soldier must be provided a 15-minute rest period every 2 hours.” Id. Thus, when Ritchie alleges that “Officers, members, and/or employees of the United States Army” disregarded the pregnancy profile and the instructions of January’s doctor, Ritchie is alleging that the Army failed to follow its own policies regulating the treatment of pregnant women. This case reveals the injustice caused by the Feres doctrine. Our jurisprudence allows us to consider claims challenging the military’s failure to follow its own mandatory regulations, but only when the plaintiff requests declaratory or injunctive relief. See Wilkins, 279 F.3d at 787; Wenger, 282 F.3d at 1072. But that relief is often meaningless. See Stanley, 483 U.S. at 690 (Brennan, J., dissenting) (“An injunction, however, comes too late for those [soldiers] already injured; for these victims, it is damages or nothing.”) (internal quotation marks omitted). An injunction can never remedy the injuries here—January’s preterm labor and RITCHIE V. UNITED STATES 21 Gregory’s death. In fact, each time the military fails to follow regulations that result in harm to the mother and fetus, the injured parties will have no recourse because a forward- looking remedy cannot make them whole. Our current jurisprudence, then, acknowledges that pregnant servicewomen have a right to have the military abide by its regulations restricting their duty to medically-set limits, but yet affords them no remedy at law to ensure compliance. Pregnant women did not always have the right to serve in the Armed Forces; this right was hard-earned. See Exec. Order No. 10240, 16 Fed. Reg. 3689 (May 1, 1951) (giving the services permission to discharge a woman if she became pregnant, gave birth to a child, or became a parent by adoption or a stepparent); Crawford, 531 F.2d 1114. Efforts to exclude pregnant women from serving, and even to punish women for becoming pregnant, continue to this day. See Pregnant G.I.’s Could Be Punished, Associated Press, Dec. 19, 2009, available at http://www.nytimes.com/2009/12/ 20/us/20general.html. The right a pregnant woman has to serve means little if her service requires she put her fetus’s health and well-being at risk. In refusing to recognize Ritchie’s tort claims, we are continuing the legal fiction that these alleged wrongs are part of the military’s discipline structure. To hold that these kinds of tortious acts against a pregnant servicewoman are per se judicially unreviewable because they are part of the military mission is to practice willful blindness at the expense of a woman’s livelihood and the life of her unborn child. I am resigned that the unfortunate cases applying the Feres doctrine dictate such an outcome, but I sincerely doubt that the conduct alleged here—orders contravening military regulations intended to protect pregnant servicewomen—warrant judicial deference of any kind. Where military conduct passes “so far beyond 22 RITCHIE V. UNITED STATES the bounds of human decency,” I do not believe that it can be considered a part of the military mission. Stanley, 483 U.S. at 709 (O’Connor, J., concurring & dissenting). It is a judicial fallacy which we have created and which I hope will be overturned one day soon.	{ "pile_set_name": "FreeLaw" }
Unable to extract the content from this file. Please try reading the original.	{ "pile_set_name": "FreeLaw" }
64 F.Supp.2d 101 (1999) Earl STRONG and Tarika Strong, Plaintiffs, v. Maria MONTAVA, Freddy Wilkenson, Julia Wilkenson, Freddy Wilkenson, Sr., Diane Mallay, and Nancy Staub, Defendants. Earl Strong and Tarika Strong, Plaintiffs, v. The County of Nassau, Dennis Dillon, and Nassau County Police, Defendants. Nos. CV 98-2672, CV 98-4646. United States District Court, E.D. New York. July 27, 1999. 102 103 Earl Strong and Tarika Strong, East Northport, New York, plaintiffs pro se in CV 98-2672 and CV 98-4646. Freddy Wilkenson, Julia Wilkenson, and Robert Wilkenson, Jr., South Hempstead, New York, defendants pro se. Diane Mallay, South Hempstead, New York, defendant pro se. Maria Montava, South Hempstead, New York, defendant pro se. Nancy Staub, South Hempstead, New York, defendant pro se. Owen B. Walsh, Nassau County Attorney, by Charles Horn, Deputy County Attorney, County of Nassau, Dennis Dillon, Nassau County District Attorney, Nassau County Police Department, Mineola, New York, for defendants. MEMORANDUM AND ORDER WEXLER, District Judge. These are consolidated civil rights lawsuits brought by plaintiffs Earl Strong and Tarika Strong against the County of Nassau and several individuals, each of whom were neighbors of the plaintiffs (the "Individual Defendants"). Briefly stated, plaintiffs' allege that their arrest and prosecution following an altercation at a block party amounted to a violation of their civil rights. The Individual Defendants are alleged to have conspired among themselves and with law enforcement officials to effectuate the false arrest and subsequent prosecution. At a conference held on July 21, 1999, this court considered the Individual Defendants' motions for summary judgment. The court granted the summary judgment motions to the extent that they were directed to the claims of Earl Strong and denied the motions to the extent they were directed to the claims of Tarika Strong. The court indicated that a written opinion would follow detailing the legal basis for the court's rulings. This is that opinion. BACKGROUND I. Factual Background A. The Block Party At all relevant times, plaintiffs and the Individual Defendants were neighbors on Woodland Avenue in South Hempstead, New York. Plaintiffs Earl Strong and Tarika Strong are father and daughter. Their claims arise from events that took place on August 5, 1995, during a block party on Woodland Avenue and the ensuing prosecution of the Strongs on August 6, 1995 and thereafter. During the block party, an altercation involving Earl Strong and defendants Julia Wilkerson and her son, Freddie Wilkerson, took place. The other Individual Defendants appear to have been 104 witnesses to the altercation. One of these individuals, defendant Nancy Staub, called for emergency police assistance. B. The Arrest and Prosecution of Plaintiffs Nassau County police officers responded to the call of Nancy Staub. Thereafter, Earl Strong was arrested and charged, under New York State criminal law, with assault in the third degree and harassment in the second degree. Plaintiff Tarika Strong, who was not involved in the initial physical altercation, was arrested and charged with harassment in the second degree. The charges against Earl Strong arose out of his altercation with the Wilkersons. The crime report completed by the arresting officers states that they responded to a claim of a fight at a block party. Upon their arrival at the scene, Julia Wilkerson and Freddie Wilkerson stated that Earl Strong, while in a verbal fight with the Wilkersons, grabbed Julia Wilkerson and threw her to the ground. Freddie Wilkerson stated that when he tried to stop Mr. Strong, he too, was punched and thrown to the ground. The police officers arrested Earl Strong and the Wilkersons were taken to a local hospital by the South Hempstead Fire Department. Tarika Strong was arrested on August 6, 1995, the day after the block party. The charge against Tarika arose out of threats she was alleged to have made to defendant Maria Montalvo. Montalvo provided police officers with sworn testimony that Tarika Strong threatened her because Montalvo gave a statement to police concerning Earl Strong's behavior at the block party. The remaining Individual Defendants also gave statements to police officials concerning the altercation at the block party. These individuals were further involved in the prosecution of the Strongs by acting as witnesses. C. The Outcomes of the Criminal Proceedings Against the Strongs Both parties have annexed to their submissions papers detailing the criminal prosecution of Earl Strong. As noted, Mr. Strong was charged with assault in the third degree and harassment in the second degree. He was convicted on both counts after a jury trial. On appeal to the Appellate Term of the Supreme Court of the State of New York (the "Appellate Term"), the conviction on the assault charge was reversed, but the conviction on the harassment charge was affirmed. The court digresses, here, to express its dissatisfaction, to say the least, with the submission of Mr. Strong. The judgment of the Appellate Term is a one page document setting forth the reversal of the assault conviction and the affirmance of the harassment conviction. Annexed to the Appellate Term judgment is the opinion of that court. Both Mr. Strong and Ms. Mallay appended the judgment of the Appellate Term to their papers. Mallay's submission includes the opinion of the appellate court. Mr. Strong's submission does not include the full opinion of the Appellate Term, but only the one page judgment. When reviewing the papers and comparing the judgments submitted by Mallay and Strong, the court noted a glaring difference in the papers submitted. Mallay's judgment stated, as noted above, that the conviction on the assault charge was reversed but the conviction on the harassment charge was affirmed. These two holdings appear on two separate lines of the judgment. The Appellate Term judgment appended to Mr. Strong's papers does not contain the last line of the judgment the notation that the conviction on the harassment charge was affirmed. Instead, it appears that the judgment submitted by Mr. Strong was altered to delete the reference to the affirmance of the harassment charge, and thus have it appear that Earl 105 Strong was cleared of all charges arising out of the block party incident. Reluctant to believe, based only on the parties' submissions, that a judgment had been altered, the court further investigated the matter by contacting the Appellate Term to obtain a copy of that court's judgment concerning Mr. Strong's criminal case. The judgment subsequently forwarded by the Appellate Term confirmed this court's suspicions that Mr. Strong had attempted to defraud this court by presenting an altered document in support of his position.[1] The court is satisfied that it would be wholly justified in dismissing Mr. Strong's case in its entirety based solely on the fraud attempted to be perpetrated on this court. This ultimate sanction is not, however, necessary, because Mr. Strong's case, as discussed below, is otherwise dismissible on the merits. D. The Opinion of the Appellate Term Regarding Mr. Strong's Case The Appellate Term opinion states that the assault conviction against Earl Strong was reversed on the ground that the accusatory instrument was jurisdictionally defective for failure to properly allege the requisite element of physical injury. However, the jury was found to have properly convicted Earl Strong of harassment and the conviction on that charge was affirmed. Specifically, the Appellate Term found that the evidence established that Earl Strong initiated the altercation with his neighbors when he was prohibited from driving his car onto the street. See People v. Strong, 179 Misc.2d 809, 689 N.Y.S.2d 341 (App. Term 1999). More specifically, the state court appellate opinion indicates that Earl Strong "displayed a belligerent and hostile attitude toward his neighbors which was clearly manifested in his unprovoked physical confrontation with a defenseless 62 year old woman." Id. E. Tarika Strong's Criminal Case While the court has been provided, as described above, with documents clearly outlining the criminal prosecution of Earl Strong, the documents regarding the prosecution of Tarika Strong are more sparse. What is clear to the court is that Tarika Strong's arrest for harassment took place after Maria Montalvo swore to a complaint stating that Ms. Strong threatened Ms. Montalvo the day after the arrest of Earl Strong. Ms. Montalvo's statement was corroborated by that of defendant Diane Mallay which states that she observed Tarika Strong screaming threats at Maria Montalvo. It is also clear that Tarika Strong was convicted of the harassment charge and the conviction was reversed on appeal. The reversal of Tarika Strong's conviction states only that the People "failed to establish that defendant's conduct was anything more than en emotional outburst, and thus the conviction must be reversed." People v. Tarika Strong, No. 95-1747 NCR (App.T. Jan. 27, 1998). Not surprisingly, there is nothing in the opinion to substantiate the claim set forth in the Strongs' papers that the Appellate Term specifically found that Tarika Strong's constitutional rights were violated. Nonetheless, it is clear (unless the court has been provided with another altered document) that Tarika Strong's conviction was reversed on appeal. F. The Eviction of the Strongs The court has been provided with state court papers indicating that plaintiff Earl Strong and his wife Lilly Strong, who had apparently rented their house on Woodland Avenue, were evicted from their home. A judgment of the Civil Term of the First District Court, Nassau County, dated February 22, 1996, states that the Strongs' landlord filed a Notice of Petition 106 for unpaid rent and a trial was held. The judgment granted possession of the home rented by the Strongs to the owner of the premises and ordered the Strongs to pay a money judgment in the amount of $3,110. See Wilson v. Strong, No. SP 07031/95 (District Ct.Nassau County February 22, 1996). II. Plaintiffs' Complaint Plaintiffs' complaint against the Individual Defendants details plaintiffs' version of the events of August 5, 1995 and plaintiffs' subsequent arrests and prosecutions. Construing the pro se complaint liberally, it appears that plaintiffs seeks to allege a conspiracy, pursuant to 42 U.S.C. § 1985, to deprive plaintiffs of their constitutional rights. Although not specifically stated, the conspiracy alleged took place between and among the Individual Defendants and Dennis Dillon, the District Attorney of Nassau County. An act in furtherance of the conspiracy is alleged in the form of a meeting that allegedly took place between the Individual Defendants and the Nassau County District Attorney on the day after the block party. The alleged object of the conspiracy was to have plaintiffs falsely arrested, maliciously prosecuted and driven from their homes. According to plaintiffs, Dennis Dillon knew that no crime was committed by the Strongs and they were nonetheless arrested and falsely charged and prosecuted. The Individual Defendants are alleged to have met with Dennis Dillon on the day after the block party at the office of the District Attorney. At that meeting, it is alleged that the District Attorney encouraged the Individual Defendants to fabricate charges and swear to false statements about the Strongs so that they could be falsely prosecuted. All acts of the Individual Defendants, some of whom are white and others of whom are African-American, are alleged to have been motivated by the fact that plaintiffs are African-American and for this reason alone, the Individual Defendants did not want plaintiffs living in their neighborhood.[2] DISCUSSION I. Legal Principles A. Motion to Dismiss and Summary Judgment Standards Presently before the court are motions to dismiss as well as motions for summary judgment. Specifically, each Individual Defendant has moved to dismiss. Plaintiffs have moved for summary judgment. A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim, is properly granted only if "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); Harsco v. Segui, 91 F.3d 337, 341 (2d Cir.1996); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996). When considering a motion to dismiss for failure to state a claim, the court can consider only the facts as set forth in the complaint or documents attached thereto. When considering the facts pled, the court must accept as true all factual allegations in the complaint. All reasonable inferences must be drawn in favor of the non-moving party. Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton College, 128 F.3d 59, 62 (2d Cir.1997). A complaint should not be dismissed "simply because a plaintiff is unlikely to succeed on the merits." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). To obtain summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, the party seeking summary judgment must demonstrate that "there is no genuine issue of any material fact and that the moving party is entitled to a 107 judgment as a matter of law." Fed. R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir.1987). In view of the fact that all parties have had ample opportunity to and, indeed, have submitted papers outside of the pleadings in support of their positions, the court will consider these motions as cross-motions for summary judgment. B. Stating a Claim Pursuant to 42 U.S.C. § 1985 As noted above, plaintiffs' claims, which allege a conspiracy by private individuals with a state official, are properly construed as claims brought pursuant to 42 U.S.C. § 1985 ("Section 1985"). The elements of a claim under this statute are: (1) a conspiracy; (2) motivated by racial or other discriminatory animus; (3) for the purpose of depriving any person or a class of persons of the equal protection of privileges and immunities under the law; (4) an overt act in furtherance of the conspiracy and (5) injury. Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Mele v. Christopher, 7 F.Supp.2d 419, 420 (S.D.N.Y.1998), aff'd, 173 F.3d 845 (2d Cir.1999); Sacco v. Pataki, 982 F.Supp. 231, 246 (S.D.N.Y.1997). Section 1985 applies to conspiracies of private individuals as well as state actors. See Traggis v. St. Barbara's Greek Orthodox Church, 851 F.2d 584, 586-87 (2d Cir.1988). The statute creates no substantive rights but, instead, provides a remedy for the deprivation of rights guaranteed by the United States Constitution. Great American Fed. Savings & Loan v. Novotny, 442 U.S. 366, 372, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979); Traggis, 851 F.2d 584, 586-87 (2d Cir.1988). Given the factual allegations of the complaint, the constitutional rights alleged to have been violated by defendants are properly construed as plaintiffs' rights to be free of false arrest, false imprisonment and malicious prosecution. Such civil rights claims are governed by the tort law of the State of New York. Russell v. Smith, 68 F.3d 33, 36 (2d Cir.1995); Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir.1995), cert. denied, 517 U.S. 1189, 116 S.Ct. 1676, 134 L.Ed.2d 779 (1996). Accordingly, it is to New York law that the court looks to determine the viability of plaintiffs' claims. C. Elements of Malicious Prosecution, False Arrest and False Imprisonment Claims Under New York law, the four elements of a claim for malicious prosecution are: (1) the initiation or continuation of a criminal proceeding against the plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding and (4) actual malice as a motivation for the defendant's actions. Russell, 68 F.3d at 36; Labensky v. County of Nassau, 6 F.Supp.2d 161, 176 (E.D.N.Y.1998), aff'd, 173 F.3d 845, 1999 WL 146292 (2d Cir. 1999). A conviction on the underlying offense negates the favorable termination element of a claim for malicious prosecution. Duamutef v. Morris, 956 F.Supp. 1112, 1116 (S.D.N.Y.1997). Additionally, a federal court considering a claim for malicious prosecution must dismiss the claim if a civil rights judgment in favor of the plaintiff would imply the invalidity of the plaintiff's underlying criminal conviction. Heck v. Humphrey, 512 U.S. 477, 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Heck requires dismissal of a civil rights claim seeking damages for an allegedly unconstitutional prosecution unless the conviction has been reversed on appeal or otherwise invalidated or called into question. Id. The elements of a claim for false arrest and false imprisonment are: (1) defendant had intended to confine the plaintiff; (2) the plaintiff was conscious of the 108 confinement; (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged. To prevail on a claim for false arrest, plaintiff must demonstrate the absence of probable cause to arrest. Labensky, 6 F.Supp.2d at 176 (citing Zanghi v. Village of Old Brookville, 752 F.2d 42, 45 (2d Cir.1985)). Put differently, the existence of probable cause to arrest is a complete defense to a claim for false arrest. Tucker v. Gross, 39 F.Supp.2d 244, 249-50 (E.D.N.Y.1999). Just as a claim for malicious prosecution is barred by a conviction, a plaintiff's conviction prevents his recovery on a civil rights false arrest claim. This is because "where a civil rights plaintiff has been convicted of the offense for which he was arrested, we have in effect accepted the fact of that conviction as conclusive evidence of the good faith and reasonableness of the officer's belief in the lawfulness of the arrest." Cameron v. Fogarty, 806 F.2d 380, 388 (2d Cir.1986), cert. denied, 481 U.S. 1016, 107 S.Ct. 1894, 95 L.Ed.2d 501 (1987). II. Summary Judgment With Respect to Claim of Earl Strong Applying the principles discussed above to the claim of Earl Strong, the court holds that summary judgment dismissing his claim must be granted. There is no doubt that Earl Strong was convicted of harassment. That conviction was upheld on appeal and the opinion of the appellate court clearly outlines the reasons for upholding that conviction. Importantly, the Appellate Term sustained Earl Strong's conviction because of evidence indicating that he had initiated the altercation with his neighbors. See People v. Strong, 179 Misc.2d 809, 689 N.Y.S.2d 341 (App.Term 1999). Under these circumstances, Mr. Strong cannot pursue a civil rights claim grounded on the notion that he was falsely arrested in connection with the block party altercation. Nor can Mr. Strong pursue a civil rights claim that he was maliciously prosecuted in connection with his arrest. Mr. Strong's claims are barred by his conviction which negates both the lack of probable cause element of the false arrest claim, see Tucker, 39 F.Supp.2d at 249-50, as well as the favorable termination element of a malicious prosecution, see Hygh v. Jacobs, 961 F.2d 359, 367 (2d Cir.1992). Further, a judgment in Mr. Strong's favor would invalidate the state court criminal proceedings and therefore run afoul of the principles set forth by the United States Supreme Court in Heck. See Duamutef, 956 F.Supp. at 1115 (dismissing civil rights claims alleging perjured testimony and conspiracy to falsely prosecute where conviction had not been invalidated). Accordingly, all defense motions to dismiss the claims of Earl Strong are granted. Mr. Strong's cross-motion for summary judgment is denied. III. Summary Judgment With Respect To Claims Of Tarika Strong As noted above, Tarika Strong's conviction of harassment was reversed on appeal. Accordingly, Tarika Strong's case does not suffer from the same fundamental defect as the claims of Earl Strong. Discovery is this case is ongoing. In fact, it is the court's understanding that the parties have not yet been deposed. Although the court perceives the case brought by Tarika as exceedingly weak she appears to ground her civil rights claim on a conspiracy evidenced only by the giving of witness statements to the police the court will not dismiss the case at this time. The court is mindful of the rule that allegations in a complaint must be taken as true for the purpose of a motion seeking dismissal and the liberal view that must be afforded a pro se pleading. See Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995). In their present posture, the claims of Tarika Strong are not yet ripe for adjudication. Accordingly, the court denies all motions to dismiss the claims of Tarika Strong. 109 IV. Plaintiffs' Case Against Nassau County The County of Nassau has not yet moved for summary judgment in this matter. At oral argument, it was indicated that a summary judgment motion would be made at the close of discovery. The court indicated that summary judgment in favor of the Nassau County would await the making of their motion. It is clear, however, that any motion made by Nassau County would rely on the same principles of law outlined in this Memorandum and Order. Because the issues are the same, further briefing by either plaintiff or defendant is unnecessary. Accordingly, upon reflection, the court concludes that the interests of judicial economy are best served by also dismissing the claims of Earl Strong as against the County of Nassau. The identity of issues also convinces the court that the sua sponte dismissal of Earl Strong's case against the County results in no prejudice to Mr. Strong. CONCLUSION For the reasons set forth above, the Individual Defendants' motions for summary judgment dismissing all claims brought by Earl Strong are granted. Earl Strong's motion for summary judgment is denied. The court further dismisses all claims of Earl Strong in his case against Nassau County. The motions to dismiss the claims of Tarika Strong are denied. Put simply, these cases continue with Tarika Strong only as a plaintiff. This Memorandum and Order disposes of all dispositive motions currently pending in this matter.[3] As discussed at oral argument, the parties are to refrain from the making of further dispositive motions (motions to dismiss or for summary judgment) until the close of discovery. This case is returned to Magistrate Judge Boyle for all further pre-trial proceedings. SO ORDERED. 110 APPENDIX 1 111 APPENDIX 2 112 Appendix 3 The People of the State of New York, Respondent, v. Earl Strong, Appellant. Supreme Court of the State of New York, Appellate Term, 9th and 10th Judicial Districts No. 96-925 N CR Decided Feb. 3, 1999. Present: FLOYD, J.P., PALELLA and LEVITT, JJ. Defendant appeals from two judgments of the District Court, Nassau County (T.W. Dwyer, J.), rendered May 7, 1996, after a jury trial, which convicted him of assault in the third degree (Penal Law § 120.00[1]) and harassment in the second degree (Penal Law § 240.26[1]), and imposed sentences. Judgment of conviction for assault in the third degree unanimously reversed on the law and information dismissed. Judgment of conviction for harassment in the second degree unanimously affirmed. On August 5, 1995, defendant initiated an altercation with his neighbors when defendant was prohibited from driving his automobile onto his street. The street had been closed to vehicular traffic to accommodate a town-sanctioned "block party." The information alleging assault in the third degree states: "Freddie Wilkerson, being duly sworn, deposes and says that on the 5th day of August, 1995, at about 3:00 p.m. in front of 609 Woodland Drive, South Hempstead, in the County of Nassau, New York, the defendant, EARL STRONG, did violate Section 120 Subdivision 1 of the Penal Law of the State of New York in that at the time and place aforesaid the defendant did with intent to cause physical injury to another person, he or she causes such injury to such person or to a third person, to wit: After grabbing my mother and throwing her to the ground, the defendant, EARL STRONG, then started to punch at your deponent. He then grabbed me and knocked me to the ground, causing a lot of pain to my back. While I was on the ground he kicked me very hard in my side. This caused a lot of pain to my ribs. I was treated at Mercy Hospital. Your deponent did not give Earl Strong permission to intentionally cause me physical injury." A "supporting deposition" of Freddie Wilkerson also states that "[defendant] started throwing punches at me. During this I attempted to fight back, but he is much larger than I am and he knocked me to the ground. This caused injury to my back and side." The information charging assault in the third degree is jurisdictionally defective, mandating dismissal in view of the fact that the instrument fails to properly allege the requisite element of physical injury. The documents state only that defendant hit and kicked the victim, causing "a lot of pain," and "injury to my back and side." Without a proper development of the injuries, the element of "physical injury" is not factually demonstrated, mandating dismissal of the information (see, People v. Garguilo, NYLJ May 15, 1997 [AppTerm, 9th & 10th JudDists]; see also, People v. Alejandro, 70 N.Y.2d 133[, 517 N.Y.S.2d 927, 511 N.E.2d 71]). We find that the jury properly convicted defendant of harassment in the second degree. At the conclusion of the presentation of evidence, the court gave the jury its final instructions. When the jury returned with its verdict, the following colloquy took place: "THE CLERK: Madam Forelady and members of the jury, what is your verdict 113 as to the charge of assault in the third degree? THE FOREPERSON: Guilty. THE CLERK: Madam Forelady, what is your verdict as to harassment in the second degree, the first one? THE FOREPERSON: Guilty. THE CLERK: Madam Forelady, what is your verdict as to harassment in the second degree, on the second? THE FOREPERSON: Not guilty. THE CLERK: You may be seated. Madam Forelady, by what vote is your verdict? Unanimous? THE FOREPERSON: Two out of three. THE CLERK: Were all of you agreed? I'm saying a unanimous vote. THE FOREPERSON: Not one. THE COURT: Do all six jurors agree on your verdict? THE FOREPERSON: On which? THE CLERK: Assault, on the first one, on everything. THE FOREPERSON: No. I thought five out of six. THE CLERK: No, six. Six out of six. THE COURT: We've got to go back. Sorry. I should have included that in the charge, I usually do. It has to be unanimous. MADAME FORELADY: That's downstairs. They told us five out of six, that's in civil cases. Back we will go. (The jury was escorted from the courtroom.)" Thereafter, the jury returned with unanimous guilty verdicts for one count of assault in the third degree and one count of harassment in the second degree. Defendant was acquitted of one other count of harassment in the second degree. The court then reviewed the three informations to ensure that the verdicts were reached with respect to the correct counts. Further, the court polled the jury which then individually answered in the affirmative when asked whether the verdict was correctly stated. Despite the fact that defendant was acquitted of one of the harassment charges, the jury nevertheless answered in the affirmative when asked if the correct verdict was guilty. After the jury was dismissed, defendant moved to set aside the verdicts pursuant to CPL 440.10, arguing that same were rendered contrary to the weight of the evidence, and "based upon the ground that it appears this was a 5-6 vote." It must be noted that no objection appears in the record concerning the jury's affirmative answer of guilty when polled with respect to the harassment charge for which defendant was actually acquitted. Defendant first argues that the court erred in failing to charge the jury about their duty to deliberate and reach a unanimous verdict. Because the record is devoid of any objection at trial, these claims have not been preserved for appellate review (see, People v. Jackson, 76 N.Y.2d 908, 563 N.Y.S.2d 42, 564 N.E.2d 652; People v. Bravo, 243 A.D.2d 640, 665 N.Y.S.2d 523; People v. Robinson, 218 A.D.2d 673, 630 N.Y.S.2d 505, affd 88 N.Y.2d 1001, 648 N.Y.S.2d 869, 671 N.E.2d 1266; see also, CPL § 470.05[2]). In any event, had the issues been properly preserved, we would still find that the court properly instructed the jury. It is well settled that the propriety of a jury charge will be upheld if it adequately apprises the jury of the law governing the case (see, People v. Ladd, 89 N.Y.2d 893, 653 N.Y.S.2d 259, 675 N.E.2d 1211; People v. Dory, 59 N.Y.2d 121, 463 N.Y.S.2d 753, 450 N.E.2d 673; People v. Woods, 41 N.Y.2d 279, 392 N.Y.S.2d 400, 360 N.E.2d 1082; CPL § 300.10). In the case at bar, defendant contends only that the court failed to instruct the jury of its duty to deliberate and reach a unanimous verdict. A review of the record indicates, however, that the court made the following statements to the jury: 114 "THE COURT: Madam Forelady, members of the jury. You are now about to assume the role for which you took your oath of office at the beginning of the trial. All the testimony in the case is in, you've heard the final argument of both People and defendant. When I have finished speaking to you, I'll hand the case over to your for your consideration and deliberations so that you may reach a verdict that is fair and just: Fair and just to the defendant, and fair and just to the People. I've instructed you several times during the course of the trial not to discuss the case with anyone else. That admonition is, of course, no longer binding upon you. In fact, you are required to discuss the case and come to a decision. The charge itself is divided into two parts. The first part consists of the general principles of law that apply to this and to all criminal trials in this state. Secondly, I will analyze the informations with you and will instruct you concerning legal points applicable to the various charges against the defendant. I will explain the application of the law to the facts, all of which is submitted to you for your consideration, and upon which you are required by law to deliberate, and render your verdict as to the guilt or innocence of this defendant. As I advised you before, you must accept the principles of law as I give them to you whether you agree with them or not. You have no discretion whatsoever to depart from these principles, and it is my duty to give these principles to you and you will be guided by them in your deliberations." (emphasis added) This charge, as a whole, conveys to the jury their duty to deliberate. Moreover, there is no requirement that the court instruct the jury that their verdict must be unanimous (People v. Light, 285 A.D. 496, 138 N.Y.S.2d 262). Turning to defendant's argument that the jury was allegedly tainted by nonjudicial instructions concerning unanimity of the verdict, there is nothing in the record to support this contention. Because no such corroboration exists, we cannot determine whether any unauthorized communication was made with the jury or whether defendant was excluded from a material stage of the trial (see, People v. Rodriguez, 251 A.D.2d 603, 673 N.Y.S.2d 940). Moreover, even assuming that the jury was given non-judicial information, the court gave a prompt curative instruction that the verdict must be unanimous, and sent the jury back to deliberate. Defendant further claims that the harassment in the second degree conviction must be set aside because no intent to harass complainant Julia Wilkerson is found in the record. A person is guilty of harassment in the second degree "when, with intent to harass, annoy or alarm another person ... [h]e ... strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same." (Penal Law § 240.26[1]). Contrary to defendant's assertions, the element of intent necessary to establish the crime may be implied by the act itself (see, People v. McGee, 204 A.D.2d 353, 611 N.Y.S.2d 261). Finally, viewing the evidence in a light most favorable to the People (People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find it was legally sufficient to establish defendant's guilt beyond a reasonable doubt. The evidence established that defendant displayed a belligerent and hostile attitude toward his neighbors which was clearly manifested in his unprovoked physical confrontation with a defenseless 62 year old woman. Moreover, since all issues of credibility and the weight to be accorded to the evidence adduced at trial are questions to be determined by the trier of facts, the jury's 115 determination should not be disturbed, as the record amply supports its findings (People v. Gaimari, 176 N.Y. 84, 68 N.E. 112). Thus, upon the exercise of this court's power of factual review, we are satisfied that the verdict was not against the weight of the credible evidence (see, id.; see also, CPL § 470.15[5]). NOTES [1] The court appends hereto copies of the judgments submitted by the parties as well as the official judgment of the Appellate Term. [2] The court refers herein to the factual allegations of the complaint against the Individual Defendants CV 98-2672. The allegations of the complaint against the County of Nassau CV 98-4646 contain the same factual allegations but name the county as the defendant. [3] There is also pending a motion by Earl Strong to dismiss his amended complaint and re-plead to name a proper defendant. In view of the fact that Earl Strong's claims have been dismissed in their entirety, the motion to dismiss and amend is denied as moot. Plaintiff Tarika Strong can take up any matter regarding the identity of defendants with Magistrate Judge Boyle.	{ "pile_set_name": "FreeLaw" }
140 F.Supp.2d 384 (2001) PUBLIC SERVICE ELECTRIC & GAS COMPANY, Plaintiff, v. LOCAL 94 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Defendant. No. CIV. A. 99-3634 (GEB). United States District Court, D. New Jersey. April 6, 2001. 385 Patrick Westerkamp, Newark, NJ, for Plaintiff. 386 Brian Curtis, Paul Montalbano, Schneider, Goldberger, Cohen, Finn, Solomon, Leder & Montalbano, P.C., Kenilworth, NJ, for Defendant. MEMORANDUM OPINION HUGHES, United States Magistrate Judge. This matter comes before the Court on motion by Plaintiff Public Service Electric & Gas Company ("PSE & G") for summary judgment requesting the Court to declare that site access issues are not subject to arbitration under the grievance/arbitration provision of the Collective Bargaining Agreement ("CBA") between PSE & G and Local 94, International Brotherhood of Electrical Workers ("Local 94"). Defendant Local 94 opposes the motion and has submitted a cross-motion for summary judgment requesting the Court to order PSE & G to submit to arbitration the issue of the revocation of site access for Vincent Forte and all other Local 94 represented employees whose employment may be adversely affected. The parties have consented to the exercise of jurisdiction by the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and FED. R. CIV. P. 73, for all purposes. Oral Argument was conducted on December 18, 2000 and the matter was taken under advisement. For the following reasons, Plaintiff's motion for summary judgment is granted and Defendant's cross-motion for summary judgment is denied in part, and denied without prejudice in part. I. BACKGROUND & PROCEDURAL HISTORY This action arises from a dispute between Plaintiff PSE & G and Defendant Local 94 concerning the arbitrability of a site access issue in the context of a grievance challenging the discharge of Union Member Vincent Forte. Plaintiff PSE & G is a public utility incorporated under the laws of the State of New Jersey to provide safe and dependable electric and gas energy within its service territory. Statement of Undisputed Material Facts ¶ 1. Defendant Local 94 is an unincorporated labor organization commonly known as a union as the term is defined in Section 2(d) of the Labor-Management Relations Act. Id. ¶ 2. Since 1943, Local 94 and its predecessors have bargained collectively with PSE & G on behalf of employees engaged in the generation and distribution of electricity. Id. ¶ 9. Local 94 is recognized by PSE & G as the exclusive representative for bargaining unit members including those assigned to the Artificial Island nuclear stations. Pl.'s Compl. at ¶ 10. Vincent Forte is a Local 94 bargaining unit member. Among the facilities operated by PSE & G are Salem I & II, and Hope Creek nuclear generating stations on Artificial Island in Salem County, New Jersey. Statement of Undisputed Material Facts ¶ 4. There is a fence which surrounds these stations and the land and the buildings inside the fence are know as the "unescorted access" or "protected" areas. Id. ¶ 6. Out of about 2000 employees who work on Artificial Island, Local 94 represents approximately 800. Id. ¶¶ 7 and 8. Approximately 99% of the union represented employees work in the unescorted access area. Id. ¶ 9. Employees of independent contractors also work at the nuclear stations and unions, other than Local 94, represent some of these workers. Id. ¶¶ 12 and 13. The operation of the Island's generating stations is licensed and regulated by the Nuclear Regulatory Commission ("NRC") pursuant to the Atomic Energy Act of 1954, as amended, 42 U.S.C. §§ 2011-2394. As an NRC licensee, PSE & G must comply with applicable rules promulgated by the NRC, which are contained in 10 C.F.R. Part 0-199. Id. ¶ 17. One of these rules 387 requires a licensee to design and implement a procedure "to limit unescorted access to vital areas during nonemergency conditions to individuals who require access in order to perform their duties." Id. ¶ 18 (quoting 10 C.F.R. § 73.55(7)(i)). Licensees including PSE & G are responsible for granting, denying, or revoking unescorted access to their own employees, contractors, and vendors. Id. ¶ 22 (referring to 10 C.F.R. § 73.56(a)(4)). PSE & G and Local 94 entered into their current Collective Bargaining Agreement effective May 1, 1996. Id. ¶ 25. Article IX of the CBA provides for a grievance/arbitration procedure agreed upon by PSE & G and Local 94. Id. ¶ 33. This grievance/arbitration procedure was invoked by Local 94 after the termination of Mr. Forte, who until March 9, 1998, worked for PSE & G at the Hope Creek Nuclear Station. Id. ¶ 36. Mr. Forte had held the position of Nuclear Technician/Mechanical Welder and had unescorted access under the Personal Access Program ("PAP") established by PSE & G pursuant to 10 C.F.R. § 73.56. Id. ¶ 39. In August 1997, Forte's site access privilege was suspended following his third arrest for driving under the influence ("DUT"). Id. ¶ 40. PSE & G found temporary work for Forte that did not require site access. Id. ¶ 41. In November 1997, Forte was convicted of the DUI charge and forfeited his driver's license to the State of New Jersey. Id. ¶ 42. In January of 1998, PSE & G indefinitely continued the suspension of Forte's site access privilege. Id. ¶ 43. PSE & G discharged Forte on March 9, 1998. Id. ¶ 44. PSE & G and Local 94 were unable to settle the grievance as to whether Forte had been discharged for just cause and the matter was submitted for arbitration with the American Arbitration Association (hereinafter "AAA"). Id. ¶ 71. The AAA appointed as arbitrator Shyam Das, Esquire. Id. ¶ 72. Arbitrator Das opened the hearings on April 7, 1999. Id. ¶ 76. The parties then stipulated that the issues for resolution were "[w]hether the discharge of Vinni Forte was for just cause" and "[i]f not, what shall the remedy be?" Id. ¶ 78. Immediately thereafter, PSE & G submitted a motion in limine to the arbitrator requesting the arbitrator to "bar Local 94 from presenting evidence touching on the January 1998 decision to revoke the grievant's unrestricted access to the Company's nuclear facilities." Pl.'s Compl. ¶ 25. Plaintiff PSE & G filed the present action in Federal District Court, District of New Jersey, requesting a declaratory judgment that the site access issue is not subject to the arbitration provisions of the CBA, or any other agreement between PSE & G and Local 94, and seeking an Order staying Defendant Local 94 from proceeding with the arbitration on the site access question. See Pl.'s Compl. Defendant Local 94 filed an Answer and cross-motion requesting a declaratory judgment that site access is subject to arbitration and for an Order from the Court requiring PSE & G to submit to arbitration the issue of revocation of site access for Vincent Forte. Def.'s Answer and Countercl. The arbitration hearing has been stayed pending resolution of the arbitrability issue by the United States District Court for the District of New Jersey. Statement of Undisputed Material Facts ¶ 80.[1] 388 The first issue to be addressed by the Court is whether there is anything in the NRC regulations which prevent site access issues from being arbitrated pursuant to a grievance/arbitration provision in a collective bargaining agreement. If not, then the next issue to be addressed is whether the arbitration provision in the operative collective bargaining agreement covers revocation or denial of site access authorization. II. STANDARD FOR SUMMARY JUDGMENT A court may enter summary judgment if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party moving for summary judgment bears the initial burden of showing that there is no genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party has met its initial burden, the non-moving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the differences at trial. Id. at 324, 106 S.Ct. 2548. In deciding whether there is a genuine issue of material fact, the Court must view the evidence in the light most favorable to the non-moving party, and the non-moving party receives the benefit of all reasonable inferences that may be drawn from the underlying facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Baker v. Monroe Township, 50 F.3d 1186, 1190 (3d Cir.1995). III. DISCUSSION A. DO THE NRC REGULATIONS PREVENT SITE ACCESS ISSUES FROM BEING ARBITRATED? 1. NRC REGULATIONS By enacting the Atomic Energy Act of 1954, 42 U.S.C. § 2011 and the Energy Reorganization Act of 1974, 42 U.S.C. § 5841, which established the NRC and transferred to it the licensing jurisdiction over private nuclear power plants which were formerly exercised by the Atomic Energy Commission, Congress intended that the "federal government maintain complete control of the safety and `nuclear' aspects of energy generation," by regulating safety aspects involved in the construction and operation of nuclear power plants. Pacific Gas and Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 212, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983). The NRC's "prime area of concern in the licensing context ... is national security, public health, and safety." Id. at 207, 103 S.Ct. 1713 (citation omitted). The NRC is authorized to prescribe regulations, including standards and restrictions governing the design, location and operation of nuclear facilities in order to protect health and to minimize danger to life and property. Susquehanna Valley Alliance v. Three Mile Island, 619 F.2d 231, 235-36 (3d Cir.1980) (citing 42 U.S.C. § 2201(i)(3) (1976 & Supp. I)). Pursuant to NRC regulations, nuclear power plant licensees must have an approved Physical Security Plan that provides protection against sabotage and unreasonable risk to the public health and safety. See 10 C.F.R. § 73.55 (2000). In May 1991, the NRC implemented a rule, 10 C.F.R. § 73.56, mandating that licensees establish an "access authorization program" and that the program be "incorporated 389 into the site Physical Security Plan as provided for by 10 C.F.R. § 50.54(p)(2) and implemented." See 10 C.F.R. § 73.56 (2000). According to § 50.54(p)(2), changes may be made to the Physical Security Plan without prior Commission approval as long as the changes do not decrease the effectiveness of the safeguards in the Plan. See 10 C.F.R. § 50.54(p)(2) (2000). However, the licensee is required to maintain records of the changes for three years from the date of the change and must submit a report describing each change within two months after the changes have been made. See id. The NRC's objective in requiring licensees to establish a program for granting unescorted access to protected areas of a nuclear power plant "is to provide high assurance that individuals granted unescorted access are trustworthy and reliable and do not constitute an unreasonable risk to public health and safety, including the potential to commit radiological sabotage." 10 C.F.R. § 73.56(b)(1); see also NRC Regulatory Guide 5.66, Access Authorization Program for Nuclear Power Plants, June 1, 1991. The access authorization program must include a background investigation, psychological assessment and behavioral observation of individuals to be granted unescorted access. See 10 C.F.R. § 73.56(b)(2). Furthermore, pursuant to 10 C.F.R. § 73.56(a)(4), a "licensee may accept part of an access authorization program used by its contractors, vendors, or other affected organizations and substitute, supplement, or duplicate any portion of the program as necessary to meet the requirements of this section." 10 C.F.R. § 73.56(a)(4). The rule also requires the implementation of a review procedure of denials or revocations of unescorted access authorization and sets forth minimum standards for such a procedure. 10 C.F.R. § 73.56(e). Section 73.56(e) of Title 10 of the Code of Federal Regulations provides: Each licensee implementing an unescorted access authorization program under the provisions of this section shall include a procedure for the review, at the request of the affected employee, of a denial or revocation by the licensee of unescorted access authorization of an employee of the licensee, contractor, or vendor, which adversely affects employment. The procedure must provide that the employee is informed of the grounds for denial or revocation and allow the employee an opportunity to provide additional relevant information, and provide an opportunity for an objective review of the information on which the denial or revocation was based. The procedure may be an impartial and independent internal management review. 10 C.F.R. § 73.56(e) (emphasis added). The regulatory guide which accompanies the rule provides an approach acceptable to the NRC by which a licensee can meet the requirements of an access authorization program. NRC Reg. Guide 5.66, June 1, 1991. This approach is set forth in "Industry Guidelines for Nuclear Power Plant Access Authorization Programs" (NUMARC 89-01) published in 1989 by the Nuclear Management Resources Council (hereinafter "NUMARC"). The NRC endorses the NUMARC Guidelines with two exceptions. One of these exceptions refers to the review procedure as addressed in the guidelines. Section 7.2 of the Guidelines provides: Each permanent employee of a utility whose employment is or will be terminated as a direct result of denial or revocation of unescorted access authorization will: (1) be informed of the basis of a denial or revocation ...; (2) have the opportunity to provide additional information; and (3) have the decision ... 390 reviewed by another designated manager ... who is ... independent of the individual who made the initial decision. . . . . . An alternative review process which is independent and impartial is acceptable. Where applicable, grievance review procedures contained in a collective bargaining agreement covering the bargaining unit of which the permanent employee is a member will meet this requirement and may be used for this purpose. If an alternative review process is used, the utility will include a description of the review process to be used in the procedures that meet this guideline. The NRC explanation for excepting this provision is as follows: The Guidelines specify a review procedure specifically for permanent employees of licensees. The rule requires that a review procedure be available to all employees of a licensee, contractor, or vendor, temporary or permanent, whose employment is adversely affected when unescorted access is denied or revoked by the licensee. NRC Reg. Guide 5.66, June 1, 1991 (emphasis added). 2. NATIONAL LABOR RELATIONS ACT Congress, through the National Labor Relations Act, 29 U.S.C. § 151, has regulated labor-management relations as well and has set forth that it is "the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining." 29 U.S.C. § 151. Section 173 of the Act provides: Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement. 29 U.S.C. § 173(d). It is well settled law that arbitration is the preferred method for resolving disputes between a union and an employer. See E.M. Diagnostic Sys., Inc. v. Local 169, 812 F.2d 91, 94 (3d Cir.1987); see also AT & T Tech., Inc. v. Communications Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (stating that certain principles applied in determining whether a grievance is subject to arbitration "have led to continued reliance on arbitration, rather than strikes or lockouts, as the preferred method of resolving disputes arising during the term of collective-bargaining agreement."). The relevant provisions of the CBA agreed to by PSE & G and Local 94 are: Article II(A); Article V(A)(1); and Article IX(A). Article II(A) provides: The management of the Company and the direction of the working forces including the right to hire, suspend, discharge for proper cause, promote, demote ... for other proper and legitimate reasons are recognized to be in the Company, except as otherwise provided in this Agreement. (emphasis added). Article V(A)(1) of the CBA provides: The safety rules and regulations established by the Company or governmental authority shall be strictly adhered to by both the employees and the Company, and the Company shall enforce these rules and regulations uniformly.... Representatives of the Company and the Union shall meet at the request of either to discuss the reasonableness of the safety rules and regulations. Proposed changes in safety rules and regulations 391 shall be submitted to the Union for full discussion before becoming effective. Article IX of the CBA provides: Should any dispute or difference arise between the Company and the Union or its members as to the interpretation, application, or operation of any provision of this Agreement, not specifically settled in said Agreement, both parties shall endeavor to settle these in the simplest and most direct manner. (emphasis added). A five-step procedure to settle the dispute follows with the relevant fifth step providing: "If the dispute or difference is not settled in the fourth step above, either party may request that the matter be referred to arbitration." Art. IX(F), Pl.'s Ex. F. 3. WHETHER 10 C.F.R. § 73.56 PERMITS ARBITRATION AS THE REVIEW APPEAL PROCESS Neither party has cited authority directly on point as to whether NRC regulations preclude the revocation or denial of site access authorization from being arbitrated pursuant to an arbitration provision in a collective bargaining agreement. However, both PSE & G and Local 94 refer to the historical record, specifically the NRC's evaluation and response to public comments to the proposed regulation 73.56 published in the Federal Register. The parties use the NRC's response to public comments to support their respective arguments as to whether the NRC regulations allow or endorse the arbitration procedure included in a collective bargaining agreement as a review procedure for revocation and/or denials of site access authorization. Before implementing the rule, the NRC published for public comment a proposed rule to require access authorization programs at nuclear power plants and the NUMARC Guidelines. See Access Authorization Program for Nuclear Power Plants, 56 Fed.Reg. 18,997 (April 25, 1991). Comments were received from industry groups such as the NUMARC, labor unions, and various government agencies. See id. According to the published evaluation and response to the public comments, the NRC acknowledged that, as reflected by the comments that had been submitted, there was concern that the review procedure required by the original proposed NUMARC Guidelines did not sufficiently protect the worker's interest. Id. at 19,002. Labor unions expressed concern that the Guidelines were developed without input from the bargaining unit or any worker representatives. See id. at 19,005. "The unions believed that issues involved in granting access authorization were conditions of employment and as such should be subject to the collective bargaining process." Id. In its discussion of this issue, the NRC stated "[i]t should be noted that the Commission never intended that any review procedure that already exists in a bargaining agreement be abandoned." Id. at 19,002. The NRC responded further to these comments by stating, "[i]t is not the intent of the Commission to exclude from consideration or to require consideration of access authorization issues in the collective bargaining process as long as the resolution of these issues is within the limits set by this rulemaking." Id. at 19,006. The NRC replied to comments from industry questioning the necessity of a separate review procedure by stating: In the Commission's view, it is not sufficient reason to dispense with the review procedures simply because there are other remedies that are available to the aggrieved person. Although in theory an aggrieved individual could commence an action in a State or Federal court, such litigation could be costly and timeconsuming 392 for the average employee. In addition, the Commission has not seen evidence that union collective bargaining agreements (where they exist) would automatically include denial or revocation of access authorization as a grievable action. In any case, the latter would not be available in nonunion plants. Further, if procedures under collective bargaining agreements are readily available for this purpose in the absence of a required review procedure, ... there is no basis for objection to the review portion of the rule in unionized plants, since the rule would allow the use of a grievance procedure for review of denials or revocations of access authorizations. Id. at 19,002 (emphasis added). Nevertheless, PSE & G asserts that the historical record is, at best, ambiguous as to whether the NRC regulations support arbitration of site access appeals. See Pl.'s Br. at 15-16. PSE & G claims that the fact that the NRC "embraced virtually every [current NUMARC] Guideline element with the exception of Section 7.2," is critical. Id. "Had it received the NRC's vote of confidence, Section 7.2 would have ratified the qualified support for arbitration which appeared in the Commission's April 1991 commentaries." Id. at 16. In sum, "[b]y ruling that Section 7.2 `does not apply' the Commission apparently withdrew its tacit consent to the use of existing grievance/arbitration procedures for access appeals." Id. However, the NRC explanation for the exception specifies that the rule requires that a review procedure be available for all employees of the licensee, contractor or vendor, temporary or permanent whose employment is adversely affected when authorized access is denied or revoked. By comparison the Guidelines provide for such a procedure solely for permanent employees of licensees. See Reg. Guide 5.66, Pl.'s Ex. I. Significantly, the NRC is silent as to the portion of Section 7.2 that allows for a grievance review procedure contained in a collective bargaining agreement as an acceptable alternative review process, which indicates that the NRC did not reject this position. See id. Furthermore, upon review of the NRC's response and evaluation to public comment published in the Federal Register it is apparent that the NRC never intended to preclude a grievance/arbitration provision included in a collective bargaining agreement as a review procedure for site access denials or revocations. In fact, the Court finds the historical record persuasive that the NRC's intent was to permit an arbitration provision to be utilized as the appeal process for revocation or denial of site access authorization when appropriate, especially in consideration of the NRC's response that it was not its intent to "exclude from consideration or to require consideration of access authorization issues in the collective bargaining process." 56 Fed.Reg. at 19,006. More importantly, the language of the regulation itself supports this argument. Section 73.56(a)(4) allows a licensee to "accept part of an access authorization program used by its contractors, vendors, or other affected organizations [to] substitute, supplement, or duplicate any portion of the program as necessary to meet the requirements of this section." 10 C.F.R. § 73.56(a)(4) (emphasis added). Furthermore, § 73.56(e) provides that a licensee shall implement a review procedure and sets forth the minimum requirements such a procedure should include, one of which is "an opportunity for an objective review of the information on which the denial or revocation was based." Id. "The procedure may be an impartial and independent internal management review," but the regulations do not require that it be as 393 such. Id. (emphasis added). Not only has the NRC not expressly precluded arbitration to be the appeal procedure, but the language in the regulation contemplates it. Therefore, the Court concludes that arbitration pursuant to a collective bargaining agreement is an acceptable means of complying with the appeal process requirement as specified in NRC regulation 10 C.F.R. § 73.56. PSE & G cites Department of Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), in support of the proposition that decisions about security clearances rest solely with the granting agency and that because the NRC delegated this power to individual licensees, authority to make site access determinations rests solely with PSE & G and are not reviewable as part of examining whether just cause existed for an employee's discharge. See Pl.'s Br. at 23. In Egan, the Supreme Court held that the grant or denial of a security clearance to a particular employee is a sensitive and inherently discretionary judgment call that is committed by law to the appropriate executive branch agency having the necessary expertise in protecting classified information. 484 U.S. at 529-30, 108 S.Ct. 818. PSE & G also cites to cases that follow Egan when reviewing a denial of site access leading to a discharge of nuclear power plant employees. However, these cases are distinguishable. One case involved a disability discrimination action under the Rehabilitation Act of 1973. See Mitchell v. Crowell, 966 F.Supp. 1071 (N.D.Ala.1996). The other two cases concerned actions under the Americans with Disabilities Act ("ADA"). See McDaniel v. AlliedSignal, Inc., 896 F.Supp. 1482 (W.D.Mo.1995); McCoy v. Pennsylvania Power & Light Co., 933 F.Supp. 438 (M.D.Pa.1996). The issues in McDaniel and McCoy were very similar to each other and both actions were dismissed for failure to establish a prima facie case under the ADA. Id. Both courts held that a security clearance is a qualification for the job under the ADA; that it is an essential function of the job; and that the employers could not accommodate the essential function of maintaining a government security clearance. See McDaniel, 896 F.Supp. at 1491; McCoy, 933 F.Supp. at 443 ("[The company] could make no `reasonable accommodation' that would have allowed plaintiff to remain in his former position and retain his security clearance without compromising its obligation imposed by NRC."); see also Mitchell, 966 F.Supp. at 1079 (holding that an employee was not "otherwise qualified" for position of public safety officer and that "this court is without authority ... to require defendant to allow plaintiff to remain in the position without a security clearance."). Nevertheless, NRC regulation 10 C.F.R. § 73.56 is distinct in that it allows for an arbitration procedure provided in a collective bargaining agreement to be implemented as the required appeal process for revocation or denial of site access authorization. Therefore, these cases and the holding in Egan do not apply to the particular circumstances in this matter. Having established that the NRC regulations do not preclude site access issues from being arbitrated and that § 73.56 permits arbitration as an appeal process for revocation and denial of site access authorization, the Court will review whether the arbitration provision in the operative collective bargaining agreement covers revocation of or denial of site access authorization. B. DOES THE ARBITRATION PROVISION IN THE OPERATIVE CBA COVER SITE ACCESS AUTHORIZATION? The Supreme Court has set forth certain principles which govern the arbitrability of labor disputes. See AT & T Tech., 475 394 U.S. at 648, 106 S.Ct. 1415 (referring to a series of cases known as the Steelworkers Trilogy: United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); and United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960)). The first principle is that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Id. (quoting Warrior & Gulf Navigation, 363 U.S. at 583, 80 S.Ct. 1347). The second principle is that whether a collective bargaining agreement creates a duty for the parties to arbitrate the particular grievance is an issue for judicial determination. See id. at 649, 80 S.Ct. 1347 ("Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator."). The third principle is that "in deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the potential merits of the underlying claims." Id. at 649, 80 S.Ct. 1347. In addition, if the collective bargaining agreement contains an arbitration clause, there is a presumption of arbitrability. See id. Arbitration should not be denied "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." Id. at 650 (citations omitted). Where a particular arbitration provision is a broad one, "in the absence of any express provision excluding a particular grievance from arbitration," the Court has held that "only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail." Id. The Third Circuit Court of Appeals in E.M. Diagnostic articulated a three-part analysis to determine whether a particular labor dispute is subject to arbitration. E.M. Diagnostic Sys., Inc. v. Local 169, Int'l Bhd. of Teamsters, 812 F.2d 91, 95 (3d Cir.1987). This analysis requires the court to inquire (1) whether the present dispute comes within the scope of the arbitration clause; (2) whether any other provision of the contract expressly excludes this kind of dispute from arbitration; and (3) whether there is any other "forceful evidence indicating that the parties intended such an exclusion." Id. PSE & G asserts that the grievance/arbitration procedure under Article IX of the CBA "limits arbitrable issues to `disputes or differences' about the `provisions' of the CBA" and given this narrow arbitration clause "and the fact that no reference" to "site access" or to "unescorted access" issues is mentioned in the CBA, "it is clear that the Forte access grievance is not arbitrable." Pl.'s Br. at 6, 16. Local 94 contends that the language in the arbitration clause "lends itself to a very broad interpretation" and that "[n]onetheless, even in cases involving narrow arbitration clauses, or grievance subjects not covered by any particular clause of an agreement, the proper inquiry is whether the grievance is related to an interest protected by the collective bargaining agreement or whether there are any provisions, specific or otherwise, in the agreement relative to the issue in dispute." Def.'s Br. at 14 (referring to E.M. Diagnostic, 812 F.2d 91). PSE & G concedes that "employees who are discharged can arbitrate the termination of their employment," and that "Local 94 is entitled to arbitrate whether proper cause existed under the collective bargaining agreement for the discharge of Vincent Forte," but not with respect to site access determinations. Pl.'s Reply Br. at 4, Answer to Countercl. ¶ 19 (emphasis in 395 original). Local 94 counters that "adverse job actions resulting in discharge, such as the revocation of site access authorization," is a term and condition of employment protected under the CBA. Def.'s Br. at 13. Accordingly, Local 94 asserts that Mr. Forte had the option and/or the ability to challenge any adverse action that affected any term or condition of employment through the CBA grievance procedures. See id. 1. Scope of the Arbitration Clause and Zone of Interests In E.M. Diagnostic, the collective bargaining agreement provided for arbitration of "any dispute arising out of a claimed violation of this Agreement." 812 F.2d at 95 (quoting collective bargaining agreement). The Court held that "a claimed contract violation comes within the scope of an arbitration clause of this character when the subject matter of the grievance is one that is within the zone of interests that have received protection in the collective bargaining agreement." Id. In E.M. Diagnostic, the Company sought to enjoin arbitration of a grievance concerning its use of an outside contractor to perform certain work. 812 F.2d at 92. The Company argued that the collective bargaining agreement bestowed upon the Company the right to subcontract and "that there is no language in the agreement from which the Union's claim can be said to arise out of." Id. at 95. However, the court noted that the contract also limited the right to subcontract by providing that this right was "subject to restrictions contained in agreement." Id. The court held that even if limits on the right to subcontract were not explicitly declared, "an absolute right to subcontract would include the right to subcontract all work of the bargaining unit and would be inconsistent with the agreement's recognition of the Union as the bargaining agent for Company's employees." Id. at 96. The court further reviewed other provisions in the agreement that recognized the interests of Union members in their right to perform work free from competition of non-union personnel. See id. Based on these provisions, the court concluded that the subject matter of the grievance came within the zone of its protected interests under the collective bargaining agreement, therefore, the dispute arose out of a claimed violation of the agreement. Id.; see also General Elec. Co. v. Teamsters Local Union No. 676, 718 F.Supp. 400, 404 (D.N.J.1989) (where the court reviewed several provisions in the bargaining agreement concerning the subject matter of a union's grievance and found that the disputed issue came within the zone of union's protected interests under the agreement.). 2. Whether the Zone of Interests Analysis Applies PSE & G argues that the zone of interests analysis does not apply to the present matter because 1) in contrast to the provision in E.M. Diagnostic where the agreement provided for arbitration of "any dispute arising out of a claimed violation of the agreement," the arbitration provision at issue in the present case is significantly narrower; and 2) the CBA between PSE & G and Local 94 provides solely for "rights" arbitration and interest disputes are not arbitrable under a "rights" arbitration clause. See Pl.'s Br. at 19-22. PSE & G stresses that "any dispute arising out of a claimed violation of the agreement" is broader than the "narrower category of disputes, i.e. those about existing contract provisions," provided in the CBA between PSE & G and Local 94. Pl.'s Br. at 20. Therefore, according to PSE & G, a court's review of the CBA for any reference to the subject matter of the dispute and whether it is within the union's zone of interests that are protected in the 396 CBA is inappropriate. Furthermore, PSE & G asserts that Local 94 has failed to identify a provision in the CBA of which PSE & G allegedly violated; therefore, there is no dispute pertaining to the interpretation, application, or operation of any provision in the Agreement. Id. at 29. However, a similar argument as the one PSE & G asserts was asserted by General Electric Company in General Elec., 718 F.Supp. at 403. The court in General Electric found this argument to be unpersuasive because there did not "appear to be a significant difference in the character of the E.M. Diagnostic clause which provided for arbitration for `any dispute arising out of a claimed violation of this Agreement' and the language of the clause at issue which provided for arbitration `with respect to the interpretation or application of any provision of this Agreement.'" Id. The Court held that: Both clauses direct attention to the agreement, the first toward disputes arising from violations of the agreement, the second toward disputes with respect to "interpretation or application" of provisions of the agreement. GE's clause involves interpretation of provisions and the word interpretation connotes as flexible a character as the E.M. Diagnostic language of `arising out of.' Thus, the zone of interest test is applicable. Id. (emphasis in original). The language of the arbitration provision in General Electric is nearly identical to the language of the arbitration provision in the CBA between PSE & G and Local 94, which provides for arbitration of "any dispute or difference ... as to the interpretation, application, or operation of any provision of this Agreement." The Court agrees with the court's reasoning in General Electric and finds that there is no critical difference in the language contained in the CBA agreed to by PSE & G and Local 94 and the arbitration provision at issue in E.M. Diagnostic. Therefore, the Court concludes that the zone of interests test is applicable to the present matter. PSE & G also cites to three Third Circuit cases to assert that in applying the zone of interest test, the Third Circuit has drawn a dichotomy between "rights" arbitration and "interest" arbitration, and that interest disputes are not arbitrable under a "rights" arbitration clause. Pl.'s Br. at 21-22 (citing Pennsylvania Power Co. v. Local Union # 272, 886 F.2d 46 (3d Cir. 1989); Jersey Nurses Econ. Sec. Org. v. Roxbury Med. Group, 868 F.2d 88 (3d Cir.1989); Lodge 802 Int'l Bhd. of Boilmakers v. Pennsylvania Shipbuilders Co., 835 F.2d 1045 (3d Cir.1987)). PSE & G contends that the CBA between PSE & G and Local 94 provides solely for "rights" arbitration. See id. However, PSE & G's reliance on these cases is misplaced. The Third Circuit Court of Appeals in these cases did not note the distinction between "rights" arbitration and "interest" arbitration in applying the zone of interest test, nor is the zone of interest analysis discussed. Instead, these cases involve separate provisions in collective bargaining agreements that specifically limited an arbitrator's ability to set new terms to the agreement. For example, in Pennsylvania Power, in deciding whether a grievance regarding a wage rate for a newly created job classification was arbitrable, the court reviewed a separate provision of the collective bargaining agreement which provided that "the arbitrator shall have no power to change, add to, or subtract from any of the provisions of this Agreement." Id. at 48. Noting that it had been called upon to examine the legal effect of similar language in Lodge, supra, and Jersey Nurses, supra, the court found that "such clauses limit the scope of arbitrable issues to those `involving the interpretation or application of terms and conditions of employment 397 that the parties have themselves agreed to in their contract.'" Id. (citations omitted). The court explained "we have distinguished such `rights' arbitration from `interest' arbitration, where the parties have agreed to allow the arbitrator to set new terms and conditions of employment that are not contained in the collective bargaining agreement." Id. The court further discussed that "when parties agree to `rights' rather than `interest' arbitration, the arbitrator exceeds her authority if she deems arbitrable those issues whose resolution calls for the addition of new terms or conditions to the agreement." Id. The court concluded that because the collective bargaining agreement did not contain a wage rate for the [newly created] position, the union, in seeking an arbitrator's ruling as to the appropriate wage rate for that position, "sought `to have the arbitrator create new terms for the parties'" and because of the separate provision limiting arbitrable issues to terms and condition already agreed upon, the arbitrator did not have that power. Id. at 49. Similarly, in Lodge 802, the union had sought to have an arbitrator fix the wage rates for a particular job classification. 835 F.2d 1045. The relevant agreement limited arbitration "to the meaning, application or interpretation of any of the terms or conditions of this Agreement." Id. at 1046. The collective bargaining agreement also contained a separate provision which provided that "the arbitrator shall not have power to alter or modify the terms and conditions of this Agreement." Id. The court distinguished the case from E.M. Diagnostic by explaining that the present "grievance is not one of `a claimed contract violation'; instead the Union seeks to have the arbitrator create new terms for the parties." Id. at 1047. In contrast with the agreement involved in these cases, there is no separate provision in the CBA agreed to by PSE & G and Local 94 that specifically limits the arbitrator from changing, adding to, or subtracting any provision in the agreement or, in the alternative, one that specifically permits the arbitrator to set new terms and conditions of employment that are not contained in the agreement. The distinction between "rights" arbitration and "interests" arbitration does not apply without such a provision. Furthermore, unlike the aforementioned cases where the union asked the arbitrator to set wage rates or benefit categories (see Jersey Nurses, 868 F.2d at 89) which would create new terms in the collective bargaining agreement, Local 94 is not asking the arbitrator to create new terms for the parties. Instead, the Union is claiming that PSE & G is in violation of the CBA by revoking Mr. Forte's site access authorization and discharging him without proper cause. The arbitrator is not expected or requested to create new terms in the agreement, but rather, is to decide whether proper cause exists for discharging Mr. Forte. Whether the arbitrator is permitted to determine if proper cause existed for the revocation of site access is the issue before this Court, and whether site access determinations are within the zone of interests protected in the CBA is the appropriate inquiry in determining the issue. Finally, whether or not the zone of interests test applies to the instant matter is not determinative of the outcome of this case because the Court finds that the arbitration of site access decisions is not within Union's protected zone of interests under the CBA. 3. Site Access Determinations are not within the Zone of the Union's Protected Interests under the Operative CBA. As compared with E.M. Diagnostic, where the court found that the subject matter of the grievance was within the zone of interests, the Court does not find 398 that to be the situation in the present matter. Whereas in E.M. Diagnostic, the collective bargaining agreement provided that the right to subcontract was subject to restrictions and the court reviewed other provisions which recognized the rights of union members to perform work free from competition of non-union personnel, there is no mention of site access authorization issues in the CBA agreed to by PSE & G and Local 94. There are no provisions, specific or otherwise, related to site access authorization determinations. In fact, during the deposition of John Gerrity, President of Local 94, Mr. Gerrity agreed that the "the body of the contract, says nothing about site access." Def.'s Ex. 10 at 39, App. 3, Gerrity Dep. Upon furthering questioning, Mr. Gerrity explained that site access questions should be both grieved and arbitrated because it has been established as past practice. See id. at 39-42. Local 94 in its brief refers to certain letters attached to and incorporated into the CBA to demonstrate that PSE & G has agreed to be bound by terms and conditions of employment outside the actual wording of the contract, i.e. past practice. Asserting that past practice has been incorporated into the CBA, Local 94 specifically refers to the May 2, 1961 letter that states, "the intent of the existing provisions and the long-time interpretation and practice do not limit Company representation at second and third-step grievance meetings as a literal interpretation of the wording might indicate." Def.'s Ex. 4 at A4, App. 1. Local 94 contends that this demonstrates that PSEG acknowledged its acceptance of a long-time practice and interpretation of the wording in the contract concerning grievance procedures. However, this provision specifically refers to discussions concerning the revision to Sections C and D under Article IX of the CBA, which both parties agreed was not necessary based on the understanding that long-standing practices would continue. See id. Sections C and D of Article IX refer to the steps in the procedure for how disputes or differences should be settled. No revisions were discussed or long-standing practices accepted concerning Section A, which delineates the substantive issues (disputes and differences) to be resolved pursuant to the procedure set forth in Sections B through F. See id. The Court finds this letter unpersuasive because it is the subject matter for arbitration that is at issue in the present matter. Local 94 refers to other letters incorporated into the CBA as well. See Def.'s Br. at 12. The May 1, 1977 and May 1, 1987 letters reflect the agreement between the parties to refer to the language in the source document if a question arises over the interpretation, application or operation of "certain Personnel Instructions and Letters to the System Council" incorporated into the CBA. Def.'s Ex. 4 at A10 and A26, App. 1. The Court finds these letters unconvincing in that they fail to support the Union's assertion that PSE & G agreed to be bound by past practice or any terms and conditions regarding site access authorization issues outside the wording of the contract. Furthermore, a past practice must be clearly enunciated and consistent, endure over a reasonable length of time, and be an accepted practice by both parties. See Posadas de Puerto Rico Assoc., Inc. v. NLRB, 243 F.3d 87, 92 (1st Cir.2001) (stating that "[a]n item that is not addressed in a collective bargaining agreement can become a term and condition of employment ... if it has been `satisfactorily established' by past practice or custom."); but see Lukens Steel Co. v. United Steelworkers of Am., 989 F.2d 668, 673 (3d Cir.1993) (stating that "[i]f the agreement is explicit and unambiguous [regarding whether a grievance is arbitrable]; there is no need 399 to look to extrinsic evidence."). Local 94 asserts that "the resolution of site access disputes by way of arbitration has been the established practice between the parties for nearly two decades." Def.'s Br. at 11. Local 94 offers the Affidavit of John Gerrity, President of Local 94, as providing a historical factual basis for the Union's conclusion that PSE & G has consented to the resolution of site access disputes through the grievance and arbitration provisions in the CBA. See Def.'s Ex. 11, App. 3, Gerrity Aff. In his Affidavit, Mr. Gerrity refers to five disputes that were submitted to arbitration, four of which occurred in the 1980s, prior to the promulgation of the NRC regulation at issue, and one in 1993. The Court has reviewed Mr. Gerrity's Affidavit and the accompanying settlement agreements, arbitration awards, and arbitration hearing transcripts, Def.'s Ex. 19-24, App. 4, and concludes that these matters do not demonstrate a past practice that is clearly enunciated, consistent, and accepted as a course of conduct by both parties with respect to site access. For example, in 1983, an employee who was accused of misrepresenting his criminal history on his employment application was suspended from "vital access" to restricted areas of the facility. Def.'s Ex. 20, App. 4, Opinion and Award of Arbitration Board. Several days thereafter, he was suspended from work pending the outcome of an investigation. Id. About one month later, the employee was discharged based on his falsification of the application. Id. The Union filed a grievance protesting the discharge; subsequently, the matter was submitted to arbitration. Id. Notably, the issue before the Board of Arbitration was whether the employee falsified information on his employment application, and if so, whether such conduct constituted proper cause for his termination. Id. The Board found that the discharge was for proper and just cause and not in violation of the CBA. Id. Importantly, the issue before the Board was not whether there was proper cause to revoke the employee's site access and there is no discussion of site access issues in the Board's Opinion. In another matter, the issue submitted to arbitration was whether the discontinuance of employment of the grievant was for proper cause. Def.'s Ex. 20, App. 4, Arbitration Opinion and Award. There is no discussion of site access issues in the Board's opinion, nor would such a discussion have been relevant in the matter because the employee was not denied site access. Id. In addition, Mr. Gerrity refers to another dispute submitted to arbitration that was settled pursuant to an informal settlement agreement before an arbitration award was issued. Def.'s Ex 11, App. 3, Gerrity Aff. Interestingly, as Mr. Gerrity discusses in his Affidavit, PSE & G argued during the arbitration hearing that the proper issue before the Arbitration Board was whether the Company had a right to discontinue the employee once the determination was made that he was unsuited for site clearance. Def.'s Ex. 22, App. 4. The Union disagreed and argued that it was one of the issues to be resolved by the Board. Id. Far from evidence that PSE & G accepted arbitration of site access issues, this demonstrates that PSE & G actually disputed submission of site access issues to arbitration. In the fourth matter, once again, the issue submitted to arbitration was whether the employee was discharged for proper cause and once again, there is no discussion of site access issues in the Arbitration Board's opinion. Def.'s Ex. 23, App. 4. In the fifth dispute Gerrity refers to in his Affidavit, which occurred after implementation of the relevant NRC regulation, PSE & G filed an action for a declaratory judgment barring the issue of denial and revocation of site access from arbitration. 400 Def.'s Ex. 24, App. 4. The action was withdrawn without resolution by the court and the parties settled the dispute. Id. A clause in the Settlement Agreement reads that "[i]t is the position of Public Service that site access determination issues are not arbitrable, and it is the position of [the Union] that they are arbitrable under the parties agreement." Def.'s Ex. 24, App. 4, Settlement Agreement. Once again, this demonstrates that PSE & G had not accepted arbitration as a means of resolving site access disputes. The Court concludes that the resolution of site access disputes by way of arbitration is not a past practice incorporated into the CBA, and thus, is not within the zone of interests protected in the operative CBA. The matters Local 94 has identified for supporting this assertion fail to demonstrate a clearly enunciated and consistent practice over a reasonable length of time that has been an accepted course of conduct by both parties. Because the Court has determined that site access disputes do not come within the scope of the arbitration clause it is not necessary to inquire whether there is any other provision excluding this kind of dispute from arbitration or whether there is other "forceful evidence" indicating that the parties intended such an exclusion under E.M. Diagnostic. The Court recognizes the interests of union members in their right to arbitrate whether proper cause exists for decisions affecting the terms and conditions of their employment. As admitted by PSE & G, whether proper cause existed for Mr. Forte's termination is subject to arbitration pursuant to the CBA. However, revocation of Mr. Forte's access authorization is a separate determination that is made pursuant to NRC regulations that require licensees, here PSE & G, to implement an access authorization program and an appeal procedure for denial or revocation of site access authorization. See 10 C.F.R. § 73.56. Though the appeal procedure may be a grievance/arbitration process provided in a collective bargaining agreement, it is also important to note that in light of the first principle governing the arbitrability of labor disputes, arbitration is a matter of contract and PSE & G is only required to submit to arbitration those disputes it has agreed to submit. See AT & T Tech., 475 U.S. at 648, 106 S.Ct. 1415. PSE & G has neither expressly or implicitly agreed to submit site access disputes to arbitration, nor has the Company assented that arbitration, as set forth in the CBA, is the appeal process for revocation of access authorization decisions pursuant to NRC regulation § 73.56. Though there is a presumption of arbitrability when a CBA contains a broad arbitration clause, not every issue is subject to arbitration. See E.M. Diagnostic, 812 F.2d at 95. Not only does the Court conclude that site access issues are not within the zone of the Union's protected interests under the current and operative CBA, but in the instant matter which concerns the unique and critical issue of the safety of the public at large regarding nuclear power plants, the Court deems it necessary and appropriate that both PSE & G and Local 94 expressly agree to submit site access issues to arbitration and that this be specifically provided in the CBA. Furthermore, denying arbitration of Mr. Forte's revocation of site access authorization without a specific provision in the CBA does not infringe on the rights of the Union to grieve and arbitrate whether proper cause exists for his termination. As PSE & G asserts, if Local 94 prevails on behalf of Mr. Forte, and the arbitrator finds that proper cause does not exist for Forte's discharge, then the arbitrator could award, for example, reinstatement 401 with full back pay for Forte. The only remedy not available would be granting site access. Finally, arbitration may be available for union members in the future, provided that labor and management negotiate this issue and specifically articulate in the CBA that arbitration is the appeal procedure for revocation or denial of site access authorization. C. DOES PUBLIC POLICY PERMIT ARBITRATION SPECIFICALLY PROVIDED FOR IN A CBA AS AN APPEAL PROCESS FOR SITE ACCESS DETERMINATIONS? Other courts have recognized the significance of the regulatory scheme governing nuclear energy in ensuring public safety. The court in International Bhd. of Elec. Workers, Local 97 v. Niagara Mohawk Power maintained that "[c]ongressional authorization for a specific agency, the Nuclear Regulatory Commission, to oversee and ensure nuclear safety, reflects the `level of public concern over the safety of the nuclear power industry.'" 143 F.3d 704, 718 (2d Cir.1998) (citation omitted). The NRC regulations represent "a strict regulatory scheme devised by Congress for the protection of the public from the hazards of nuclear radiation" demonstrating "a dominant and well-defined policy requiring strict adherence to nuclear safety rules." Id. (citations omitted); Tennessee Valley Auth. v. Tennessee Valley Trades and Labor Council, 184 F.3d 510, 519 (6th Cir.1999). Courts have also acknowledged the licensee's required compliance with the extensive regulations promulgated by the NRC designed to ensure the safety of nuclear power plant workforces and the public at large. Id. at 707. In addition, "[a] court may not enforce a collective bargaining agreement that is contrary to public policy" and the "question of public policy is ultimately one for resolution by the courts." Id. at 715 (quoting W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber, Cork, Linoleum & Plastic Workers, 461 U.S. 757, 766, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983)) Several cases have involved claims that a labor arbitration award should not be enforced because it contravened public policy or that the arbitrator exceeded his or her authority to resolve issues that affected public safety and well being subject to government regulation, i.e. nuclear safety regulations. See id.; Local 97, Int'l Bhd. of Elec. Workers v. Niagara Mohawk Power, 196 F.3d 117 (2d Cir.1999); Tennessee Valley Auth., 184 F.3d 510 (6th Cir.1999). The issue in these cases was the public policy implications of reinstating employees to safety-sensitive positions. Basically, at bottom, this is the same issue that PSE & G is concerned about here. These cases also reflect that site access issues have been submitted to arbitration pursuant to collective bargaining agreements, however, there is no detailed discussion regarding the specific arbitration provisions. The NRC regulation at issue in International Bhd. of Elec. Workers, Local 97 required the licensee to maintain a Fitness for Duty program which entailed random drug testing.[2] 143 F.3d at 707. The case involved a chemistry technician, responsible for ensuring that the plant chemistry was maintained within the technical specifications required by the NRC, who adulterated his specimen with chlorine during the administration of a random drug test. Id. After a second test confirmed the presence of cocaine, a disciplinary hearing was 402 held pursuant to a provision in the collective bargaining agreement which required that a fact-reviewing meeting be convened prior to the imposition of any discipline involving the loss of pay. Id. at 707-08. Subsequent to the hearing, the Company terminated the employee. Id. at 708. The union appealed the termination through the grievance procedure pursuant to the collective bargaining agreement and the matter was ultimately submitted to arbitration. Id. The issue submitted was whether the Company had "just cause" for the discharge. Id. The arbitration panel ordered that the employee be conditionally reinstated and the District Court vacated the award holding that reinstatement would contravene public policy favoring a safe work environment. Id. at 709. The Second Circuit Court of Appeals reversed the District Court and held, in part, that the arbitration award of the employee's conditional reinstatement didn't violate public policy. Id. at 719. The court found that the NRC regulations did not proscribe reinstatement of employees found to have adulterated a drug test or who have tested positive for drugs or alcohol. Id. at 718. Specifically, the regulations did not discuss or specify any penalty for the adulterated drug test offense, and that the regulations only required a minimum two week denial of unescorted access and referral to an employee assistance program when employees tested positive. Id. at 718 (referring to 10 C.F.R. § 26.27). The court further found that the NRC regulation "clearly contemplates the notion of both rehabilitation and reinstatement." Id. Therefore, the court held that nothing in the NRC regulations prohibited re-employment of the employee provided that adequate assurance of the employees's rehabilitation is obtained. Id. at 719. In dicta, the court sympathized that in a nuclear work environment, the protection of the public must take precedence for which there is little room for error, and dismissal from employment ought to be a viable alternative for the offenses. Id. at 727. However, the court recognized the problem as two-fold. The Company had agreed to a Fitness of Duty Program that did not provide it with sufficient authority to discharge an employee for that particular offense, and second, the NRC, "the policy maker here, [had] chosen not to confront the issue directly." Id. In Tennessee Valley Auth., when a nuclear reactor unit operator tested positive during a random drug test administered pursuant to the Company's Fitness for Duty Program, his security clearance was suspended. 184 F.3d at 512. Thereafter, the employee unsuccessfully attempted to understand and comply with instructions concerning his responsibilities and rights in appealing the denial of his security clearance. Id. Eventually, the company terminated him for failure to maintain his security clearance. Id. at 513. Pursuant to the collective bargaining agreement entitled the General Agreement, the union filed a grievance alleging that the employee had been "treated unfairly" by the Company. Id. The arbitrator awarded reinstatement surmising that the employee's termination was unjustified because he was not afforded due process to which he was entitled pursuant to the collective bargaining agreement and Company policy and procedure based on the appropriate laws and NRC regulations. Id. at 514. The District Court vacated the arbitrator's award holding in part that it was at variance with another contract between the parties (the Framework Agreement) and was contrary to public policy. Id. However, the Court of Appeals held that the "enforcement of the award did not violate any public policy." Id. at 521. 403 The court reviewed the General Agreement which in express terms, provided a grievance procedure "to resolve an employee's complaints about having been `treated unfairly'" and explicitly reserved the resolution of the issue to the arbitrator as well as disagreements with supervisors regarding the application of employment policy. Id. at 516. The court also considered the Framework Agreement which specifically provided that unless expressly modified or restricted by another provision, management, Tennessee Valley Authority ("TVA"), retains the right "to determine its internal security practices; to suspend, discharge employees... for cause." Id. (quoting Agreement). The Agreement also designated management responsibilities as being "matters governed by federal law, including regulations," but parenthetically qualified this clause by providing "to the extent that the law provides flexibility in its implementation, such matters are within the scope of bargaining unless otherwise excluded by this Agreement." Id. at 517. The Agreement further designated as management responsibilities, "the program for determining fitness for duty; [and] ... development of health and safety rules and requirements." Id. The court concluded that based on this Framework Agreement, determinations of fitness of duty were not within the scope of bargaining, but that this did not "restrict any right that the [union] would otherwise have to challenge actions on matters which go beyond the requirements of federal law." Id. at 518 (quoting Agreement). Therefore, because the issue before the arbitrator was whether the Company had treated the employee unfairly, the arbitrator was allowed to consider pursuant to the General Agreement, whether the determination to remove his security clearances was conducted fairly. Id. The court further held that the arbitrator's decision was not contrary to federal law or regulation nor was the reinstatement award violative of public policy. Id. at 518-20. However, the court qualified this holding by explaining that if the award were interpreted as requiring TVA to reinstate the employee's security clearance without any further proceedings, the question of whether it violated public policy would be more difficult. Id. In addition, the court explained that such an award would more likely "exceed the arbitrator's authority under the General Agreement, which does not authorize an arbitrator to dictate a substantive outcome of a fitness determination nor the manner in which the company weighs the various considerations relevant to that decision." Id. at 520. In the present case, the question is whether arbitration of a labor-management dispute pursuant to a collective bargaining agreement is violative of public policy, not whether the award itself is violative of public policy. The relevant NRC regulation requires a procedural appeal process when licensees deny or revoke security clearances and the issue is whether arbitration pursuant to this collective bargaining agreement may be the appeal process. PSE & G's concern appears to be the usurping of its authority to make site access decisions by the arbitrator if arbitration is designated as the site access appeal process. However, as the Court has already determined, the NRC regulations permit arbitration to be the appeal process for revocation or denial of site access decisions. Similar to the General Agreement in Tennessee Valley Auth., the CBA agreed to by PSE & G and Local 94 does not authorize an arbitrator to rule on site access determinations. This having been established, the Court believes that as a matter of public policy, including the profound safety concerns regarding the nuclear energy industry, an appeal procedure 404 for site access determinations is worthy of a clear and specific reference in either the CBA or the PAP. Therefore, the Court holds that due to public policy reasons, including the critical importance of security measures implemented by nuclear power plants in accordance with the law and NRC regulations to ensure public safety, and in acknowledgment of the public interest in resolving labor disputes in the least obstructive manner by encouraging arbitration and protecting the rights and interests of labor, site access appeals must be a specifically agreed upon procedure by both labor and management. The importance of site access determinations warrants a separate, clear and specific provision in the collective bargaining agreement if arbitration is to be the review process. In the present case, the Court has found that there is no specific provision in the operative CBA between PSE & G and Local 94 allowing for arbitration as an appeal procedure of site access determinations. Absent such a provision in the CBA, the current management review process in PSE & G's Personnel Access Program is the only available means for appealing decisions revoking or denying site access authorization. In sum, public policy does not preclude arbitration from being implemented as the appeal procedure for site access determination, however, it does require a clearly enunciated provision in the CBA that designates arbitration as the appeal procedure for site access determinations. D. DOES THE PSE & G PERSONNEL ACCESS PROGRAM VIOLATE NRC REGULATIONS? Finally, Local 94 argues that the PSE & G Personnel Access Program violates NRC regulations. As previously mentioned, NRC regulation 10 C.F.R. § 73.56 sets forth certain required minimum standards to be included in the appeal procedure for site access decisions. The site access appeals program must provide that the employee is informed of the grounds for the denial or revocation of site access authorization; that he or she is allowed an opportunity to provide additional relevant information; and that he or she is provided an opportunity for an "objective review of the information on which the denial or revocation was based." 10 C.F.R. § 73.56(e). Furthermore, the regulation provides that "[t]he procedure may be an impartial and independent internal management review." Id. After reviewing the appeal procedure set forth in PSE & G's Personal Access Program, the Court finds that the program complies with § 73.56(e). Pursuant to the PAP, when a background investigation discloses adverse information concerning an employee, the Access Authorization Supervisor is responsible for deciding whether to deny personnel access clearance using her own expertise referring to criteria for denying access listed in Appendix A of the PAP manual, "and any other available regulatory or industry guidance." Pl.'s Ex. K at 36-37, PSE & G Personnel Access Program Section 7.4. As part of the program, a Site Access Committee is established as well, "to provide guidance and aid in the decision-making process when multi-department issues are present." Id. The Committee members include the "Access Authorization Supervisor, Manager-Nuclear Security, Psychological Services Administrator, Medical Review Officer, the subject's R/C Manager and/or Employee Relations management representative, as appropriate to the case." Id. An employee may appeal a denial or revocation of site access decision "provided the person has a reasonable basis upon which to believe the decision was incorrect." 405 Id. at 8.0. "Disagreement with written company policy or requirements in federal or state regulations is not an acceptable reason for an appeal." Id. at 8.1. The employee must submit a written request for an appeal to the Access Authorization Supervisor, a copy of which is sent to the Employee Relations Manager, stating the reasons he or she believes the denial or revocation of access decision was incorrect. See id. The Access Authorization Supervisor reviews the appeal request and forwards it to the Appeals Officer "responsible for conducting the impartial review of Personnel Access Clearance denial decisions" and any additional information germane to the case. See id. The Appeals Officer then reviews the employee's "access processing files and may conduct or have conducted additional inquiries as necessary to achieve an independent evaluation of the available facts." Id. at 8.3. During this independent evaluation, the program requires the Appeals Officer to review 1) information provided by the employee at the time of the original adverse information interview or in the appeal request; 2) documentation received by the employee which provided notification of the access denial; 3) other relevant communications such as notes of oral discussions and interviews; and 4) the department's documented process used to affect the decision; i.e. departmental implementing procedures. Id. The Appeals Officer will either affirm the decision or recommend reversal. If reversal of the decision is recommended, the Access Authorization Supervisor has the opportunity to concur. Id. If the Supervisor does not concur, the recommendation of reversal is submitted to the Manager of Nuclear Security. See id. at 8.3, Actions by the Appeals Officer. After his third arrest for DUI in August 1997, PSE & G suspended Mr. Forte's site access authorization. PSE & G found temporary work for Mr. Forte that did not require site access. However, in November 1997, after Mr. Forte's conviction of the DUI charge and the forfeiture of his drivers' license to the State of New Jersey, PSE & G indefinitely suspended Forte's site access privileges. In a letter dated April 9, 1998, Ronald Fisher, Site Access Screening Supervisor, informed Mr. Forte that the "Site Access Committee re-convened pursuant to a request by PSE & G management to reconsider the matter of [his] unescorted access." However, the Committee concluded that the decision to deny access authorization was appropriate. Pl.'s Ex. H. Mr. Fisher further advised Mr. Forte that he had the right to appeal the access decision within 10 days. Id. Mr. Forte failed to avail himself of the appeal process offered by PSE & G as part of their PAP in compliance with the NRC regulations. Local 94 does not contend that the procedure was not followed in Mr. Forte's case or that it was arbitrarily or unfairly imposed in his case. Instead, Local 94 alleges that the PSE & G Personnel Access Program violates NRC regulation 10 C.F.R. § 73.56 in that, in general, it is unfairly and arbitrarily implemented against PSE & G employees. See Def.'s Br. at 21. The Union alleges that too much power is vested in individual management personnel who decide the fate of employees without adequate guidelines to operate as a check on their conduct and discretion. Id. at 22. Local 94 points to the Affidavit of Ronald K. Fisher and asserts that even Mr. Fisher admits that "the Access Committee is `self-managed' and collectively answerable only to the Manager of Nuclear Security, himself a member of the Committee." Id. at 23; Def.'s Ex. 6 at 94-96, App. 2, Fisher Dep. Local 94 also refers to John Gerrity's Affidavit, wherein Mr. Gerrity describes how security personnel have used site access as 406 a basis to "intimidate, control, and harass employees at their whim." Id. at 24-25. For example, security personnel have suspended access authorization to employees who park in the wrong spot in the parking lot. Def.'s Ex. 11, App. 3, Gerrity Affidavit. Nevertheless, there is no private cause of action for violations of the provisions of the Atomic Energy Act. See Brown v. Northeast Nuclear Energy Co., 48 F.Supp.2d 116, 121-22 (D.Conn.1999) (stating that there is no private cause of action "in light of Congress' express prohibition against private enforcement of the Atomic Enforcement Act in 42 U.S.C. § 2271(c), which provides: `No action shall be brought against any individual or person for any violation under this chapter ... except by the Attorney General of United States ....'"); see also Conway v. PECO Energy, Co., No. CIV.A.96-7284, 1997 WL 34672, at 5 (E.D.Pa. Jan. 28, 1997). The NRC regulations do provide "private parties with a limited administrative enforcement mechanism for alleged violations, 10 C.F.R. § 2.206 (any person may request the NRC to institute a proceeding to modify, suspend or revoke a license) and vests civil and criminal enforcement authority in the NRC under 42 U.S.C. § 2271(c))." Brown, 48 F.Supp.2d at 122. In Conway the plaintiff alleged that the company's conduct in investigating his alleged drug activity and revoking his security clearance violated various NRC regulations. 1997 WL 34672, at 5. The court in Conway declared that "[i]t is clear ... that Congress did not intend the federal courts to be available to hear cases by a plaintiff for violation of NRC regulations of drug testing and security clearance investigations," and held that the court lacked jurisdiction over such matters. Id. Similar to Conway, Local 94 claims PSE & G's conduct violates NRC violations by its unfair and arbitrary implementation of the Personnel Access Program. Therefore, if the Union believes that the Personnel Access Program is in violation of the NRC regulations in that it is arbitrarily implemented by PSE & G, it may appeal to the NRC pursuant to § 2.206. IV. CONCLUSION For the reasons set forth herein, Plaintiff's motion for summary judgment requesting the Court to declare that site access issues are not subject to arbitration under the grievance/arbitration provision of the CBA is granted. Defendant's cross-motion for summary judgment requesting the Court to order Plaintiff to submit to arbitration the issue of the revocation of site access for Vincent Forte is denied. Defendant's cross-motion for summary judgment requesting the Court to order Plaintiff to submit to arbitration the issue of revocation of site access for all other Local 94 represented employees whose employment may be adversely affected is denied without prejudice, subject to a new provision in the CBA specifically providing for arbitration as the appeal process for site access determinations. Requiring a specific provision in the CBA presents a legally permissible opportunity for labor and management to come together to agree on a clear and precise method of site access review, compliant with NRC regulations, which would result in a fair and reasonable balance between the rights of union members and the safety of the public. Absent such a specific provision, the current appeal procedure as set forth in PSE & G's Personnel Access Program complies with NRC regulations and is the applicable method of review. NOTES [1] Defendant Local 94 disputes Plaintiff's Statement of Undisputed Facts ¶ 80 by objecting to "the implication that Arbitrator Das rendered a decision or ruled otherwise that he did not have the authority to determine whether the revocation of site access resulting in discharge was a term and condition of employment protected under the [CBA] to which the parties agree to be bound." Def.'s Statement of Disputed Facts. [2] It should be noted that, initially, the Company unilaterally implemented the Fitness for Duty program. However, importantly, it was superceded when the Company and the Union reached an agreement and created a new program. Id. at 709.	{ "pile_set_name": "FreeLaw" }
Affirmed in Part and Reversed and Remanded in Part and Majority and Dissenting Opinions filed August 13, 2013. In The Fourteenth Court of Appeals NO. 14-12-00163-CV LYDA SWINERTON BUILDERS, INC, Appellant V. CATHAY BANK, Appellee On Appeal from the 113th District Court Harris County, Texas Trial Court Cause No. 2008-64001A MAJORITY OPINION This lien priority case comes to us on appeal from the trial court’s rulings on cross-motions for final summary judgment. The appeal presents two issues involving two special types of real property liens. We first address the scope of a builder’s release of its mechanic’s lien. See generally Tex. Prop. Code Ann. Ch. 53 (West 2007 & Supp. 2012). We conclude that the release at issue here did exactly what it purported to do: it released a previous mechanic’s lien on one of the tracts of land at issue. The release did not mention the underlying debt or the filing of future liens, so we conclude that with one exception, it did not affect the builder’s entitlement to the unpaid portion of its debt or its ability to file new liens. Nonetheless, there are fact questions regarding whether the liens that the builder filed after releasing its initial lien comply with the applicable statutes. These fact questions largely preclude summary judgment on the validity of the post-release liens. Next, we apply subrogation doctrines to a tax lien. Subrogation gives someone who pays a debt the lien priority of the creditor paid. Normally, subrogation is permissible because it does not alter the rights of junior lienholders; it merely alters the party to whom they are junior. When a party satisfies a tax lien, however, allowing subrogation to the taxing authority’s priority position may inequitably circumvent notice and foreclosure requirements that would otherwise apply. Fact issues preclude us from resolving the equities on this record. Therefore, with one exception described below, we reverse the trial court’s summary judgment and remand the case for further proceedings. BACKGROUND Lyda Swinerton Builders, Inc. (the builder) agreed to improve real property owned by Park 8 Place, L.P. (the developer), but the improvements never progressed very far. This case began when the builder sued the developer, but the developer filed for bankruptcy protection and is no longer a party. The only parties remaining are two of the developer’s unpaid creditors: the builder and Cathay Bank. Both claim a priority interest in portions of the property that the developer planned to develop. We refer to these disputed tracts as “Parcel A” and “Parcel B.”1 Our task is to determine priority as between the builder (which claims priority 1 This case involves six contiguous tracts of land, which Exhibit B to the builder’s summary judgment motion designates as tracts I–VI. The builder concedes the bank’s superior 2 based upon its mechanic’s liens) and the bank (which claims priority based upon deeds of trust and a tax lien that it satisfied). The builder began work on the project in February 2007.2 Over the next several months, the builder completed “dirt,” utility, and foundation work. During the same period, the bank lent the developer approximately $800,000 secured by a deed of trust on Parcel B and approximately $500,000 secured by a deed of trust encumbering the entire property.3 In October 2007, work ceased due to “payment issues” and never resumed. That month, the builder filed its first mechanic’s lien affidavit. The affidavit reflected a lien of approximately $3.2 million and only encumbered Parcel A. Generally, mechanic’s liens like this one relate back to the start of work for priority purposes, regardless of when the mechanic files its lien affidavit. See Diversified Mortg. Investors v. Lloyd D. Blaylock Gen. Contractor, Inc., 576 S.W.2d 794, 800 (Tex. 1978). Thus, although the builder filed its affidavit after the bank had obtained its deed of trust liens, the builder’s lien nonetheless had priority because it related back to the start of work in February 2007. On October 31, 2007, shortly after the builder filed its first lien affidavit, the bank lent the developer approximately $1.9 million. A deed of trust encumbering both Parcels A and B secured the bank’s loan. The builder was paid $1.5 million interest in tracts II, IV, and VI, so this opinion only addresses tracts I, III, and V. We omit details relating to the parcels that are not in dispute. Moreover, for our purposes, it is unnecessary to distinguish between tracts III and V, so we refer to those tracts collectively as “Parcel A.” We refer to tract I as “Parcel B.” 2 “‘Work’ means any part of construction or repair performed under an original contract.” Tex. Prop. Code Ann. § 53.001(14). For purposes of this appeal, the parties do not dispute when the builder began work. 3 The exact lien amounts are not relevant to our analysis, so we state them as round numbers throughout. 3 of the loan proceeds against the developer’s outstanding debt. 4 The builder then filed a lien release. We will discuss the release in detail later, but for now it suffices to say that the document recited the receipt of $1.5 million and purported to release the builder’s $3.2 million lien. On the same day that the builder signed its release, the bank used a portion of the loan to satisfy outstanding tax liens against the property. By statute, these tax liens are automatically senior to most other real property liens. See Tex. Tax Code Ann. § 32.05(b). The bank later claimed that the principle of subrogation entitled it to the taxing authority’s lien position for the portion of the loan used to pay taxes. See generally Smart v. Tower Land & Inv. Co., 597 S.W.2d 333 (Tex. 1980). On November 13, 2007, soon after filing its release, the builder filed an “[a]mended” lien affidavit reciting a debt of approximately $2.9 million. This sum included both the unpaid portion of the developer’s pre-release debt (approximately $1.7 million) and amounts for post-release expenses that the builder had since incurred. Like the builder’s first lien affidavit, this one covered only Parcel A. The builder contends this post-release affidavit, as a mechanic’s lien, related back to the start of work in February 2007. As a result, according to the builder, it now had a $2.9 million lien that was senior to the bank’s deeds of trust, notwithstanding the lien release it had just filed. Although the builder stated in its lien affidavit that it had incurred post- 4 Approximately $400,000 of this payment went to a subcontractor that is not a party to this appeal. In its brief, the builder appears to concede that this payment to the subcontractor also reduced its claim against the developer, so our analysis assumes this is the case. If we misapprehend the transaction, nothing in this opinion prevents a party from asserting on remand that the payment to the subcontractor did not reduce the builder’s claim against the developer. 4 release expenses, no post-release work had occurred on the property. The builder contends that even though it had stopped working, it remained on the site at the developer’s request. The post-release expenses reflected in the affidavit were “administrative and equipment rental costs related to maintaining the site at an estimated $200,000 per month.” Over the ensuing months, the developer made at least one partial payment, but the developer’s payment did not keep pace with the builder’s continually accruing expenses. In May 2008, the builder sent the developer a letter stating that if the developer failed to cure its debt, the builder would leave the project site and terminate the contract. The developer did not cure its debt, but the builder nonetheless remained on the site. Indeed, after sending this termination letter, the builder “continued to maintain its office facilities at the Project, continued to store materials and equipment at the Project, and maintained water, sewer, power, phones and data connections at the office complex.” It also continued to bill the developer for these expenses and to file lien affidavits to secure payment. Each new amended affidavit reflected the current total owed and each encumbered both Parcel A and Parcel B. While still on the property accruing expenses (allegedly still at the developer’s request), the builder sued the developer in October 2008. The bank intervened shortly thereafter, claiming a superior interest in the property. The trial court eventually severed this lien priority dispute from the builder’s action against the developer. With all this litigation pending, the builder filed its final lien affidavit in January 2009. This was over a year after the builder’s last work on the project, six months after its termination letter, and three months after filing its lawsuit. The final amended affidavit reflected a lien on Parcels A and B in the amount of $6.75 5 million, representing the builder’s total expenses. As a mechanic’s lien, the builder contends this lien related back to the start of work—almost two years earlier—and was therefore senior to the bank’s deed of trust liens on Parcels A and B. After filing this final lien, the builder remained on the property for another thirteen months. Shortly after the builder finally decamped from the property in March 2010, the bank foreclosed on its October 31, 2007 deed of trust. The builder received notice of the trustee’s sale, but contends it was unaware that the bank intended to foreclose on a senior tax lien. The builder contends that, “had [it] known that [the bank] was foreclosing . . . transferred tax liens, [it] could have . . . bid on the property at the foreclosure sale to preserve its interest.” But the builder did not bid at the foreclosure sale. Instead, the bank purchased the property for $10,000. Because this amount was less than the bank’s alleged senior tax lien, the bank contends its foreclosure extinguished all junior liens—including the builder’s. See I-10 Colony, Inc. v. Chao Kuan Lee, 393 S.W.3d 467, 472 (Tex. App.—Houston [14th Dist.] 2012, pet. filed) (“It is well settled in Texas that a valid foreclosure on a senior lien . . . extinguishes a junior lien . . . if there are not sufficient excess proceeds from the foreclosure sale to satisfy the junior lien.”). The bank thus argues that, as a result of this sale, it owned the property outright. In the severed lien priority litigation, the parties filed cross-motions for final summary judgment. The builder argued that because its lien related back to February 2007, it was senior to the bank’s. Thus, the builder argued that the bank’s purchase of the property at its own foreclosure sale was subject to the builder’s senior lien. The bank contended that it was entitled to the property for two reasons. 6 First, the bank argued that the builder’s release fully terminated any interest it had in the property and prevented it from filing new liens. Second, the bank contended that its foreclosure of a senior tax lien extinguished the builder’s interest in the property. The trial court granted the bank’s motion and denied the builder’s. It held that the bank owned the property “free and clear” of the builder’s claims. This appeal followed. ANALYSIS I. Standard of review We review a trial court’s order granting traditional summary judgment de novo. Olmstead v. Napoli, 383 S.W.3d 650, 652 (Tex. App.—Houston [14th Dist.] 2012, no pet.). To be entitled to summary judgment, the movant must demonstrate that no genuine issues of material fact exist and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). If the movant does so, the burden shifts to the non-movant to produce evidence sufficient to raise a fact issue. Olmstead, 383 S.W.3d at 652. When reviewing a summary judgment motion, we cannot read between the lines or infer from the pleadings or evidence any grounds for summary judgment other than those expressly set forth before the trial court. Id. The builder presents two issues on appeal, which we address together: whether the trial court erred in granting the bank’s motion for summary judgment, and whether it erred in denying the builder’s motion. When both sides move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both sides’ summary judgment evidence and determine all questions presented. Id. When, as here, the trial court’s order granting summary judgment does not specify the grounds on which it relied, the 7 summary judgment will be affirmed if any of the theories advanced are meritorious. Id. Here, the two grounds advanced for summary judgment in the bank’s favor are (1) the builder’s release and (2) the bank’s alleged foreclosure of tax liens. We address these grounds in turn. II. Although the builder fully released its initial lien on Parcel A, it did not waive its right to file new liens covering other property or securing payment for post-release expenses, and there are fact questions concerning the validity of those new liens. One of the parties’ principal disputes concerns the builder’s mechanic’s lien. Specifically, the parties dispute (1) the effect of the builder’s release upon its initial lien and upon its ability to file subsequent liens, and (2) the validity of the builder’s post-release liens. We begin with some undisputed general principles. “As a general rule, a properly perfected mechanic’s lien ‘relates back’ to a time referred to as the inception of the lien for the purpose of determining lien priorities.” Diversified Mortg. Investors, 576 S.W.2d at 800. In most cases, “the time of inception of a mechanic’s lien is the commencement of construction of improvements or delivery of materials to the land on which the improvements are to be located and on which the materials are to be used.” Tex. Prop. Code Ann. § 53.124(a). Here, neither party disputes that the relevant date for inception of the builder’s liens is February 2007. Thus, if the builder’s lien affidavits are effective, they all relate back to February 2007, and the bank’s relevant deeds of trust are junior to them. The bank argues these liens are ineffective, however, because of (1) the builder’s release and (2) flaws in the post-release liens themselves. As explained below, we hold that with one exception, the bank is incorrect regarding the release and that fact issues regarding the validity of the post-release liens preclude summary judgment for either party. 8 A. The release did exactly what it said: it released the builder’s initial lien and nothing more. Omitting the formal parts, the builder’s October 2007 release reads as follows: RELEASE OF LIEN The [builder] is a holder of a lien (“the lien”) in the amount of $3,228,444.50 (“the indebtedness”) filed originally on or about October 10, 2007 [in the] Real Property Records of Harris County, Texas regarding the real property and improvements thereon (“the property”) generally described as Park 8, Tower B, [the property’s address] and more particularly described as follows: [Description of Parcel A]. FOR AND IN CONSIDERATION of $1,500,000.00 and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the [builder] does hereby release and discharge the property from this lien. A release is a writing that provides that a duty or obligation owed to one party to the release is discharged, either immediately or upon the occurrence of a condition. See Port of Houston Auth. of Harris Cnty. v. Zachry Const. Corp., 377 S.W.3d 841, 854 (Tex. App.—Houston [14th Dist.] 2012, pet. filed). Releases are subject to the usual rules of contract construction. Id. As in other instances of contract construction, our primary concern is to ascertain the intent of the parties at the time of the execution of the alleged release as expressed in the release. Id. To construe the release, we may examine evidence of the circumstances surrounding its negotiation and execution. Id. We may also consider the title of the document, but it is not dispositive. Id. Here, the parties present multiple alternative interpretations of the two- sentence release. They dispute the release’s effect on the builder’s initial October 2007 lien, on the underlying debt, and on the builder’s ability to file subsequent 9 liens. Below, we discuss in detail what the release does and why it does not do all of the work that the parties assign to it. The short answer is that the release only says that the builder is releasing the full amount of its initial lien against Parcel A. The builder argues that notwithstanding the release, it could “re-file” a lien for the unpaid portion of the same debt against the same parcel of land. We disagree because allowing the builder to do so would render the release meaningless. Thus, the release extinguished the builder’s initial lien and prevented it from reasserting the same lien against Parcel A for the unpaid portion of the pre-release debt. The bank argues that the release also did other things, but the document in front of us does not mention them. For example, the bank argues that the release not only released the lien, but also forgave the unpaid portion of the initial debt. The release does not say that. The bank also argues that the release prevented the builder from filing liens for subsequent expenses. The release does not say that either. Finally, the bank contends that the release prevented the builder from securing the unpaid portion of its initial debt with a lien on Parcel B. The release also does not say that—it only mentions Parcel A. Accordingly, the release does not entitle the bank to the final summary judgment it received below. 1. The release unambiguously released the full amount of the initial lien, but it did not forgive or cancel the unpaid portion of the pre-release debt. To explain these conclusions, we begin with the release’s effect on the builder’s pre-release lien and debt. The builder argues that it only released its initial October 2007 lien to the extent of the payment it received. More specifically, because it only received $1.5 million of the $3.2 million it was owed, the builder contends it only released $1.5 million of the initial lien. We disagree. 10 The release contains just two sentences. The first describes the lien and the property, stating that the lien secures a debt of $3.2 million. The second “release[s] and discharge[s] the property from this lien” “for and in consideration of $1,500,000.00” (emphasis added and capitalization omitted). This language does precisely what it says: it releases the whole lien. The builder’s contrary interpretation is inconsistent with the unambiguous language of the release and therefore unreasonable. Notwithstanding this plain language, the builder argues that section 53.152(a) of the Property Code required it to release its lien “to the extent of the indebtedness paid,” so we should construe its release to have only this effect. Although “[s]ection 53.152 delineates the minimal obligation of a contractor to release a lien upon receiving payment, . . . nothing in the statute suggests that broader releases may not be executed.” Addicks Servs., Inc. v. GGP-Bridgeland, LP, 596 F.3d 286, 297 (5th Cir. 2010). Here, in exchange for immediate payment, the builder executed a broader release and thereby fully released its initial lien. But the release itself does not forgive the unpaid portion of the developer’s underlying debt.5 Thus, although the release extinguished the lien, nothing in the document suggests the builder intended to forgive the remaining $1.7 million debt that had not been paid. To the contrary, the release distinguishes the “indebtedness” from the “lien” and releases only the lien. The document’s first sentence is definitional: it defines “the lien,” “the 5 The builder asks us to take judicial notice of a judgment it obtained against the developer, which was based on an agreed arbitration award and included the unpaid portion of the pre-release debt. The bank urges us not to take judicial notice. We need not address the issue because the judgment against the developer does not affect our decision. As discussed above, the release alone does not establish that the developer’s entire pre-release debt has been satisfied, and we reject the bank’s argument that it does. Judicial notice that the debt has been reduced to judgment is unnecessary to reach this conclusion. 11 indebtedness,” and “the property.” The use of separate terms to describe “the lien” and “the indebtedness” demonstrates a desire to distinguish one from the other. The release’s second sentence is operative: it “release[s] and discharge[s] the property from this lien.” The second sentence does not mention the indebtedness. In this way, the builder unambiguously demonstrated its intent to release only “the lien” without forgiving the unpaid portion of the separately defined “indebtedness.” Moreover, the circumstances of the transaction support this construction of the release. Sun Oil Co. (Del.) v. Madeley, 626 S.W.2d 726, 731 (Tex. 1981) (“If, in the light of surrounding circumstances, the language of the contract appears to be capable of only a single meaning, the court can then confine itself to the writing.”). To the extent the release evidences a contract (see n.6, infra), the parties to that contract are the bank and the builder. The bank sought a priority interest in the property, while the builder sought partial payment. There is no evidence, however, that either party sought to reduce the developer’s debt. As for the builder, it had no reason to forgive the developer’s debt because it wanted payment for its work. In any event, there is no evidence that the builder agreed to—or was even asked to—forgive the unpaid portion of the underlying debt. As for the bank, nothing in the record suggests that the bank had any interest in reducing the developer’s indebtedness to the builder. The bank wanted to get the builder’s previously filed lien out of the priority line, not to protect the developer. We must also “keep in mind that lien waivers, as their name implies, pertain to lien rights and not to the more general right to payment.” 3 PHILIP L. BRUNER & PATRICK J. O’CONNOR, JR., CONSTRUCTION LAW § 8:151 (2002). Here, neither the release’s text nor the context of the transaction establishes that the parties intended 12 to forgive the developer’s underlying debt. We therefore reject the bank’s contention that the release had this effect.6 Thus, following the release of its initial October 2007 lien, the builder held no lien against Parcel A or any other tracts. The developer remained indebted to the builder, however, for the $1.7 million unpaid portion of the pre-release debt. 2. The release prohibited the builder from re-filing a lien against the same property for the remaining pre-release debt. The builder next argues the release did not prohibit it from re-filing a lien against the same property for the unpaid portion of the same debt. This construction is unreasonable because it would essentially render the release meaningless. The release’s plain language and the context of the transaction demonstrate that the parties intended for the builder to release its previously filed lien, thereby ensuring the bank’s priority position on Parcel A. For this reason, the bank paid the builder $1.5 million, and in exchange the builder fully released its lien. Once released, the lien could not be revived. See Apex Fin. Corp. v. Brown, 7 S.W.3d 820, 830 (Tex. App.—Texarkana 1999, no pet.). Although a release may be rescinded for failure of consideration, see Murray v. Crest Const., Inc., 900 S.W.2d 342, 344 (Tex. 1995), in this case the consideration was paid, the release was filed, and the builder presents no argument that would permit it to rescind the release in part. Allowing the builder to re-file a lien for a portion of the same debt against 6 This opinion does not foreclose the parties’ ability on remand to introduce evidence of agreements supplementing the release’s plain meaning. Although we conclude the release is unambiguous, the parties have not argued that the release is a fully integrated expression of their agreement, and we express no opinion on that issue. See generally Garner v. Redeaux, 678 S.W.2d 124, 128–29 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.). The parties’ arguments thus far rely solely upon the release, and we limit our analysis accordingly. 13 the same property, however, would effectively allow a rescission. Nothing in the record suggests that the parties intended for the builder to retain such unilateral authority. To the contrary, for the bank to obtain the security it bargained for, the pre-release lien had to stay fully released. We therefore reject the builder’s argument that the release permitted it to re-file liens against Parcel A to secure the unpaid portion of the pre-release debt. 3. The release did not prohibit the builder from filing new liens on other tracts for the unpaid debt or liens on any tracts for post-release expenses. Having determined the release’s effect on the builder’s October 2007 lien and the developer’s pre-release debt, we turn to the release’s effect on the builder’s post-release liens. After filing the release, the builder filed four amended lien affidavits to secure payment for the unpaid portion of the pre-release debt and for expenses that the builder continued to incur. The first of these documents, filed shortly after the release in November 2007, asserted a lien only against Parcel A. The builder filed a second amended affidavit in June 2008, a third in October, and a fourth in January 2009. These three subsequent affidavits placed liens on the entire property, including Parcels A and B. Each affidavit updates the total amount owed by the developer at the time of filing. The final affidavit states that approximately $6.75 million is owed. The bank argues that summary judgment in its favor was proper because the builder’s release prevented it from filing any further liens on any tracts to secure any of the developer’s debt. As discussed above, the bank is right insofar as the release prohibited the builder from re-filing a lien on Parcel A for the unpaid portion of the pre-release debt, and it is entitled to partial summary judgment to 14 that extent.7 As to the bank’s other contentions, we disagree. Neither the release itself nor any summary judgment evidence suggests that the builder agreed to refrain from filing new liens if it incurred additional expenses. By its terms, the release affected only the builder’s pre-release lien. It said nothing about the builder’s ability to file future liens for post-release expenses. In this way, the release differs from that in Apex Financial Corporation v. Brown, upon which the bank relies. In that case, the waiver released lien rights based not only upon “labor or materials furnished,” but also upon labor and materials “to be furnished in the future.” 7 S.W.3d at 830. The court held that this language allowed the party challenging the subsequently filed liens to “rely on the fact that the . . . property would not be burdened by a statutory mechanic’s lien.” Id. The release here, by contrast, does not purport to waive the builder’s right to file new liens. Instead, it refers only to the lien already filed and the indebtedness already incurred. We therefore do not construe the release as barring liens for post-release expenses. Similarly, neither the release itself nor any summary judgment evidence suggests the builder agreed to refrain from filing a lien against tracts other than Parcel A to secure the unpaid portion of the pre-release debt. The builder’s initial October 2007 lien only encumbered Parcel A, and its release purported to release only this lien. The release did not mention Parcel B or the property’s other tracts, so we do not construe it to prevent the filing of liens against those tracts to secure the unpaid portion of the developer’s pre-release debt. 7 See Tex. R. App. P. 43.2(a); PAS, Inc. v. Engel, 350 S.W.3d 602, 617 (Tex. App.— Houston [14th Dist.] 2011, no pet.) (affirming summary judgment on fraud claim to extent based upon a certain misrepresentation). 15 This construction is consistent with the release’s plain meaning and the context of the transaction. The builder released Parcel A from its initial lien, and it cannot avoid this consequence by simply re-filing. But there is no evidence that the parties intended the release to prevent the builder from securing the remaining pre-release debt—or any other debt for that matter—with a lien on Parcel B. Nor is there any contention that Parcel B is outside the “[p]roperty to [w]hich [the] [l]ien [e]xtends” under Texas Property Code section 53.022. Thus, on the record before us, nothing prevented the builder from filing a lien against Parcel B to secure the unpaid portion of the developer’s pre-release debt. The bank makes additional arguments to avoid this result, but they do not change our conclusion that the release does not entitle the bank to final summary judgment. The bank contends that we must construe the release to waive additional rights because the release’s language differs from language in other “partial releases” that the builder filed. Although the relevant release does differ from others in the record, its language still does not waive the builder’s right to file future liens for post-release expenses or forgive the developer’s unpaid debt. The bank also contends that the builder could not “amend” its October 2007 lien because it fully released this lien and therefore had nothing to amend. This contention must be evaluated under the mechanic’s lien statute because the liens at issue here are creatures of statute. Indeed, “‘[a] subcontractor’s lien rights are totally dependent on its compliance with the statutes authorizing the lien.’” K & N Builder Sales, Inc. v. Baldwin, No. 14-12-00012-CV, 2013 WL 1279292, at 3 (Tex. App.—Houston [14th Dist.] Mar. 28, 2013, no pet.) (mem. op.) (quoting First Nat’l Bank in Graham v. Sledge, 653 S.W.2d 283, 285 (Tex. 1983)). Although a general contractor may have common law, contractual, and constitutional lien rights as well, the builder has not relied upon such rights in this 16 appeal. Thus, to determine whether the builder has a statutory lien based upon its amended affidavits, we need only “compare the steps the [builder] took to perfect [its] liens with the statutory requirements.” First Nat’l Bank in Graham, 653 S.W.2d at 286. The required contents of a lien affidavit are prescribed in section 53.054(a) of the Texas Property Code. We conclude that each post-release affidavit complies with these requirements, and the bank does not argue otherwise. Nothing in the statute suggests that the builder sacrificed its entitlement to a lien in its November 2007 affidavit by adding a statement that this affidavit “amends” the original October 2007 affidavit, which perfected a lien that had been released in the interim.8 To the contrary, the supreme court has made clear that “substantial compliance with the statutes is sufficient to perfect a lien.” Id. at 285. Our dissenting colleague disagrees with this conclusion, relying on the affidavits’ form rather than their substance. In her view, the first post-release affidavit in November 2007 is ineffectual because it purports to amend the October 2007 affidavit, but there was nothing to amend because the lien perfected by that affidavit had been released. Moreover, because the post-release affidavits amend one another, she contends those affidavits are ineffectual as well. We disagree with this analysis because it is contrary to the language, established interpretation, and purpose of the mechanic’s lien statutes. Nothing in the language of the statutes suggests that a lien’s effectiveness hinges upon whether affidavits filed after a release describe themselves as “amending” or “replacing” the pre-release affidavit. This omission is telling because the statutes 8 All of the lien affidavits are substantively identical with the exception of: (1) the amended affidavits’ references to amendment in the caption and in one numbered sentence; (2) differences in the amount of the claim; and (3) beginning with the second amended affidavit in June 2008, an expansion of the property subject to the lien. 17 not only contemplate, but require, releases whenever payment is received. See Tex. Prop. Code Ann. § 53.152(a). Release documents are “an intended and customary part of the payment process” in construction transactions. 3 BRUNER & O’CONNOR, supra. Given the prevalence and necessity of releases, one would expect that if the Legislature intended “amended” post-release affidavits to be entirely ineffective, it would have expressed that intent. Certainly some statutory warning would be appropriate if, as the dissent argues, a mechanic who proceeds by amendment loses all security for expenses incurred after filing a statutorily required release. Because there is no such warning or expression of legislative intent, we adhere to the requirements the Legislature did establish in section 53.054(a), which are met here as explained above. Cases interpreting the mechanic’s lien statutes also counsel against invalidating a lien on a purely technical basis. For example, “[i]t is well settled that the mechanic’s and materialman’s lien statutes are to be liberally construed for the purpose of protecting laborers and materialmen.” Ready Cable, Inc. v. RJP S. Comfort Homes, Inc., 295 S.W.3d 763, 765 (Tex. App.—Austin 2009, no pet.). And courts have been more willing to excuse a mistake or omission in cases where no party is prejudiced by the defect. Id. (citing cases). Indeed, “[t]he Legislature did not intend that the materialman should lose his lien through the technicalities of a warning, where the owner was not misled to his prejudice.” Hunt Developers, Inc. v. W. Steel Co., 409 S.W.2d 443, 449 (Tex. Civ. App.—Corpus Christi 1966, no writ). Here, there is no contention that the bank, the developer, or anyone else relied upon or was misled by the references to amendment in the post-release affidavits. Each affidavit was properly filed in the real property records, each 18 clearly identifies the encumbered property, and each states the amount of the lien. 9 Moreover, the purpose of these affidavits was to give notice of the builder’s interest in the property. See Arias v. Brookstone, L.P., 265 S.W.3d 459, 464–65 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (purpose of serving lien affidavits on property owner is to give notice). If anything, filing the post-release affidavits as amendments furthered this purpose. The use of the amendment format ensured that all of the amendments were filed together, thus clarifying that each affidavit superseded the previous one and that the most recent stated the full extent of the builder’s interest. At bottom, the dissent rests on the rule that “[i]f there is nothing for an amended instrument to amend, then such an amended instrument is itself ineffectual nullity.” Post, at 8. The dissent cites no authority for applying this rule to mechanic’s lien affidavits, but would apparently apply it to instruments of every kind. Of course, we agree that this rule may apply in some situations. See, e.g., Lazo v. RSI Int’l, Inc., No. 14-06-00432-CV, 2007 WL 2447299, at 4 (Tex. App.—Houston [14th Dist.] Aug. 30, 2007, no pet.) (mem. op.) (endorsement to cancelled insurance policy ineffective). But it does not apply to amended pleadings, for example. Because an amended pleading replaces the original pleading, see Tex. R. Civ. P. 65, no one would argue that a fatal defect in the original pleading that is absent from the amended pleading vitiates the latter simply because it states that it amends the original pleading. We decline to apply the dissent’s rule to defeat otherwise valid instruments that effectively serve the purpose for which they were created.10 9 Although the lien perfected by the original October 2007 affidavit was released, the affidavit itself did not cease to exist, cf. post, at 8–9, and it is in the record before this Court. 10 Cf. Rogers v. Ricane Enters., Inc., 884 S.W.2d 763, 770 (Tex. 1994) (principle that “a contract shall be construed . . . in light of the purposes and objects for which it was made” is 19 Here, the amended affidavits gave notice of the builder’s interest in the property in compliance with the applicable statutes. Accordingly, they perfected the builder’s lien.11 B. Whether the builder timely filed its post-release lien affidavits and whether its post-release expenses were for “materials” as defined in the mechanic’s lien statute involve fact questions that preclude final summary judgment for either party. The bank next contends that even if the builder’s release allowed it to file subsequent lien affidavits, its post-release affidavits were nonetheless ineffective because (1) they were untimely and (2) the expenses referenced in the affidavits could not give rise to mechanic’s liens because they were not for “materials furnished for construction” as required by the mechanic’s lien statute.12 We address each argument in turn. Because there are fact questions regarding both arguments, neither party is entitled to final summary judgment regarding the validity of the post-release mechanic’s liens. “well-settled”); Union Pac. Res. Grp. v. Neinast, 67 S.W.3d 275, 282 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (lease covenants will be implied to, among other things, “give effect to the actual intention of the parties . . . and the purposes sought to be accomplished [by their contract or conveyance]”); Hicks v. Loveless, 714 S.W.2d 30, 34 (Tex. App.—Dallas 1986, writ ref’d n.r.e.) (deed restrictions construed “in light of the obvious purpose and intent of the restrictions”). 11 The dissent’s “Supplemental Background” section discusses the correspondence between the builder and the bank, perhaps suggesting that this correspondence influences its interpretation of the post-release affidavits. As far as we can tell, however, it does not. The dissent’s rule would apply with equal force if the only parties were a property owner and a mechanic who received payment and filed the statutorily required release. If the mechanic filed lien affidavits as amendments after filing a release, then the dissent would hold that nothing secures the mechanic’s post-release expenses. As discussed above, we see no reason why this should be the case. 12 The bank’s brief conflates timeliness with whether the builder’s expenses entitle it to a mechanic’s lien, but we construe the brief to raise both issues. See Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (“Appellate briefs are to be construed reasonably, yet liberally, so that the right to appellate review is not lost by waiver.”). 20 1. The timeliness of the builder’s post-release liens presents questions of fact. Because mechanic’s liens attach on the day work begins, but need not be recorded until after work concludes, there can be notice problems. That is, a party relying solely upon the real property records will be unaware of a mechanic’s senior lien until after the mechanic files its affidavit. See Diversified Mortg. Investors, 576 S.W.2d at 801. The mechanic’s visible construction activity on the property fills this potential notice gap. Id. at 801–02. Thus, mechanic’s liens first attach at “the commencement of construction . . . or delivery of materials,” that is “visible from inspection of the land.” Tex. Prop. Code Ann. § 53.124. Mechanic’s lien statutes also protect third parties by requiring mechanics to file their affidavits within a fixed period after their presence on the property ceases. See id. § 53.052. In this way, when work is ongoing, third parties can observe the mechanic’s presence and assume that liens may be forthcoming. See Diversified Mortg. Investors, 576 S.W.2d at 801. After work concludes, a party can avoid mechanic’s liens by waiting for the lien-filing period to expire. See id. The clock on the filing period starts ticking when “indebtedness accrues.” Here, the builder had to file its lien affidavit “not later than the 15th day of the fourth calendar month after the day on which the indebtedness accrue[d].” Tex. Prop. Code Ann. § 53.052. Several events can trigger the accrual of indebtedness, but each stands in for the cessation of work. For example, indebtedness to an original contractor13 accrues on the last day of a month during which either the contractor or the 13 The parties agree that the builder is an “original contractor” and this was an “original contract.” 21 property owner receives a written declaration from the other party terminating the contract. Id. § 53.053(b)(1). Absent termination, indebtedness accrues “on the last day of the month in which the original contract has been completed, finally settled, or abandoned.” Id. § 53.053(b)(2). For our purposes, the only relevant accrual triggers are abandonment and termination. The builder argues it never abandoned or terminated the project until it left the site in March 2010, so its post-release lien affidavits filed between November 2007 and January 2009 were all timely. For its part, the bank argues that the builder abandoned the project when it stopped working in October 2007, and thus all but the first of the builder’s post-release lien affidavits were untimely because they were filed after February 15, 2008. We cannot agree with either party because the summary judgment evidence fails to conclusively establish when the builder abandoned or terminated the contract. Fact questions regarding abandonment. Chapter 53 of the Property Code does not define “abandoned.” See Tex. Prop. Code Ann. § 53.001. Moreover, neither party has cited, and our research has not revealed, a Texas authority exploring the meaning of “abandoned” as applied to mechanic’s liens. We therefore use the word’s ordinary meaning. See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). “Abandon,” as used in this context, means “to turn from or relinquish.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2 (1993). Courts across the country disagree about whether the objective appearance of abandonment triggers a mechanic’s filing obligation or whether the parties must actually intend to abandon the project. See Superior Constr. Servs., Inc. v. Belton, 749 N.W.2d 388, 391 (Minn. Ct. App. 2008) (discussing the two approaches). The courts that focus upon the notice-giving purpose of ongoing work believe that the 22 parties’ “secret purposes” have no place in the analysis. Allison v. Schuler, 36 P.2d 519, 522 (N.M. 1934). These courts consider only the objective appearance of abandonment. See id. Other courts emphasize the mechanic’s need for certainty in order to safeguard its rights and therefore include in their analysis the parties’ subjective intent regarding abandonment. See Superior Constr. Servs., 749 N.W.2d at 391. The parties here have not asked us to adopt one side of this split over the other, and we conclude that it is unnecessary to do so. Based upon the summary judgment evidence, both approaches raise fact questions. Accordingly, neither party is entitled to summary judgment under either approach. Regarding the parties’ subjective intent, the builder argues that a single fact conclusively establishes that it did not abandon the project until March 2010: the developer’s request that it remain on the site until that time. Given the unique facts of this case, we disagree. The project began deteriorating long before the builder’s March 2010 departure, and there is evidence that one or both of the parties may have abandoned the project prior to that time. Indeed, two and a half years passed between the day the builder stopped working and the day it left the project site. During that time, the builder did no work, received little payment, sent notice of its intent to terminate the contract, and sued the developer. The builder is correct that its continuing presence on the property supports an inference that it did not abandon the project, but these other developments support a contrary inference. This evidentiary conflict raises a fact question that cannot be resolved on summary judgment. We also reject the builder’s argument that its summary judgment evidence conclusively established that the parties actually intended to complete the project. 23 The builder relies upon affidavits from its operations manager and a letter that it sent to the developer in May 2008. One affidavit says that “[the developer] repeatedly promised that it was in the process of securing additional financing, and that [the builder] should not demobilize.” The other states that the builder “did not terminate the contract, abandon the contract or demobilize the Project” when it stopped working in October 2007 “[b]ecause of [the developer’s] repeated promises that it was in the process of securing additional financing.” Neither affidavit reflects exactly when the developer made these promises or exactly what promises it made. Without this information, the mere existence of promises as early as October 2007 fails to establish conclusively the non- abandonment of the project prior to March 2010. The builder’s letter to the developer falls short for similar reasons. The May 2008 letter states that “[the builder] at the request of [the developer] has remained mobilized at the site.” Even if the developer made this request prior to May 2008, however, such a request would not conclusively establish that the intent to complete the project survived until March 2010. The summary judgment evidence fails to establish conclusively when the parties intended to abandon the project, so neither party is entitled to summary judgment based upon abandonment. Turning to the objective appearance of abandonment, the builder argues that its equipment remained on the property, signaling to third parties that it was working and that its liens could come at any time. The bank focuses upon the long period during which no work occurred, arguing that a third party would surmise the work was over. The parties’ arguments are both correct, as far as they go, and demonstrate the existence of a fact question on abandonment. Maintaining equipment on the property certainly suggests work may be ongoing. But the builder’s extended 24 period of inactivity suggests that, at some point, the builder and the developer may have given up the project. Deciding if and when the parties abandoned the contract is therefore a fact question that cannot be resolved on summary judgment. Fact questions regarding termination. For purposes of a statutory mechanic’s lien, a contract terminates when one party receives a written notice of termination from the other. Tex. Prop. Code Ann. § 53.053(b)(1). The builder contends that “[i]t is undisputed” that it “never received any notice the Contract was terminated” (emphasis added). This appears to be correct. But the builder alleged in its original petition below that it “served notice of intent to terminate the Contract” “[b]y late May, 2008” (emphasis added). At this point, the builder contended it had “bec[o]me apparent that [the developer] was incapable of obtaining the financing necessary to complete the Project.” The builder’s termination letter stated that, if the developer failed to cure its default, the contract would terminate on May 27, 2008.14 Although this letter appears in the record, we do not believe it conclusively proves that the contract terminated in May or June of 2008. First, there is no evidence that the developer received this written notice, and section 53.053(b)(1) provides that receipt triggers the accrual of indebtedness, not dispatch. Moreover, neither party’s brief thoroughly addresses the termination letter’s effect. Thus, the issue of termination also cannot be resolved on summary judgment. 14 The letter is dated May 20, 2008, and states that the developer’s failure to cure its default within seven days will “terminate the Contract.” The letter also states, however, that it is a “Notice of Intent to Terminate” and “[p]ursuant to” “Article 14.1.1” of the parties’ construction agreement. This provision appears to provide for a fifteen-business-day cure period. In any event, even if the contract terminated in June 2008, a lien affidavit would have been due by the fifteenth day of the fourth month thereafter, i.e., October 15, 2008. See Tex. Prop. Code Ann. § 53.052(a). Thus, if the letter terminated the contract in May or June of 2008 (a matter upon which we express no opinion), then the builder’s affidavits filed on October 23, 2008, and January 16, 2009, would appear to be untimely. 25 2. The builder’s filing of a single timely mechanic’s lien does not render its amended liens timely under the statute. The builder argues, however, that issues of termination and abandonment do not prevent final summary judgment in its favor. The builder points out that even if its later post-release affidavits were untimely, its first amended lien affidavit filed in November 2007 was still timely. The builder then contends that any late affidavits “relat[e] back” to this timely one. Under this theory, the builder’s single timely affidavit enabled it to more than double its lien on the property at any time regardless of when the statutory filing period expired. We disagree with this construction of the filing requirements. The builder’s construction disregards the language of the relevant statutes. To obtain a valid lien, a mechanic “must file an affidavit” within the statutory period. Tex. Prop. Code Ann. § 53.052. This affidavit “must contain substantially . . . a sworn statement of the amount of the claim.” Id. § 53.054(a). Here, the first amended affidavit, assuming it was timely, did not contain a substantially correct statement of the amount the builder ultimately claimed. The first amended affidavit stated a claim for approximately $2.9 million, and the builder ultimately claimed approximately $6.75 million. Thus, the builder’s first amended affidavit satisfied both the timeliness requirement and the amount-of-the-claim requirement only to the extent of the $2.9 million claim it substantially recited. We therefore reject the builder’s argument that its first amended affidavit satisfied the timeliness requirement as to all subsequent affidavits. Although the bank does not dispute the timeliness of the first amended lien affidavit, we cannot grant a partial summary judgment that this affidavit imposed a valid mechanic’s lien. As an initial matter, approximately $1.7 million of the first 26 amended lien was for pre-release expenses that we have held the builder could not reassert against Parcel A. Because the first amended affidavit only mentioned Parcel A, it was ineffective to re-impose a lien for the pre-release expenses, and the builder is entitled to partial summary judgment to that extent. The remaining $1.1 million in the first amended affidavit appears to have been for post-release expenses. As we discuss below, however, the record does not conclusively establish whether the builder could obtain a mechanic’s lien for those or other post- release expenses. As a result, notwithstanding the apparent timeliness of the first amended affidavit, fact questions preclude summary judgment as to its effectiveness regarding post-release expenses. 3. Whether the builder’s post-release expenses were for “material furnished for construction” presents fact questions. Mechanic’s liens secure payment for, among other things, “the labor done or material furnished for the construction or repair.” Tex. Prop. Code Ann. § 53.023. As to the post-release liens, there is no contention that the builder “d[id] labor.” Rather, the builder argues that its services after construction ceased were “material furnished.” “Material” means all or part of: (A) the material, machinery, fixtures, or tools incorporated into the work, consumed in the direct prosecution of the work, or ordered and delivered for incorporation or consumption; (B) rent at a reasonable rate and actual running repairs at a reasonable cost for construction equipment used or reasonably required and delivered for use in the direct prosecution of the work at the site of the construction or repair; or (C) power, water, fuel, and lubricants consumed or ordered and delivered for consumption in the direct prosecution of the work. Tex. Prop. Code Ann. § 53.001(4). 27 The builder generally contends that its post-release expenses fall into these categories. The builder’s affidavit states that the expenses were for “maintain[ing] its office facilities at the Project, continu[ing] to store materials and equipment at the Project, and maintain[ing] water, sewer, power, phones and data connections at the office complex.”15 The bank contends that none of these post-work expenses are “materials” because, once work ceased, nothing was “used” or “consumed” in the “direct prosecution of the work.” See id. We disagree because the definition of materials does not always require actual use or consumption in the direct prosecution of the work. Instead, mechanic’s liens are also available when items are “delivered for” use or consumption. Id. In this way, the availability of a mechanic’s lien becomes a question of how the parties intended to use equipment and services delivered to the project, which is generally a question of fact. State ex rel. Perrin v. Hoard, 62 S.W. 1054, 1056 (Tex. 1901).16 Here, we cannot determine conclusively from the summary judgment evidence exactly when the developer and builder ceased intending to prosecute the work. Therefore, we cannot tell the extent to which the builder’s expenses were for equipment or services delivered for that purpose. Standing alone, the fact that no work ultimately occurred does not answer these questions. Moreover, to obtain a mechanic’s lien for rental expenses, the equipment 15 Aside from the issues noted below, the parties have not briefed whether each of these categories of expenses fall within the statutory definition of “materials.” We therefore express no opinion on whether they otherwise qualify as expenses for materials. 16 See also Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986) (“Intent is a fact question uniquely within the realm of the trier of fact because it so depends upon the credibility of the witnesses and the weight to be given to their testimony.”); Viscardi v. Pajestka, 576 S.W.2d 16, 19 (Tex. 1978) (“The intent of the grantor is a question of fact.”). 28 must be not only “delivered for use,” but also “reasonably required” for use in the direct prosecution of the work. Tex. Prop. Code Ann. § 53.001(4)(B). In this case, the builder continued to incur rental expenses for several months after work had ceased even though the developer already owed over $1.7 million and the project had no apparent prospect of adequate financing. At some point, continuing to incur these expenses may have become unreasonable, regardless of the parties’ intent. Whether and at exactly what point these expenses stopped being “reasonably required” are questions of fact that cannot be answered conclusively on this record. Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 56 n.6 (Tex. 1997) (“[R]easonableness is ordinarily a question of fact.”). * * * For these reasons, we affirm the trial court’s grant of summary judgment insofar as it held that the builder’s lien against Parcel A for the unpaid portion of the pre-release debt is junior to the bank’s deed of trust lien. Otherwise, to the extent the trial court’s granted summary judgment for the bank based on the release, the summary judgment cannot stand. III. Although the bank’s failure to comply with the tax lien transfer statutes does not prevent its subrogation to a tax lien, there are fact questions regarding whether equity requires subrogation here. The parties’ other principal dispute concerns whether the bank became subrogated to a senior tax lien that it satisfied with part of its loan proceeds. With a few exceptions that are not relevant here, tax liens are senior to other liens. See Tex. Tax Code Ann. § 32.05(b). Thus, if the bank became subrogated to tax liens, these liens would be senior to the builder’s mechanic’s liens. As a result, foreclosure of the subrogated tax liens would have extinguished the builder’s mechanic’s lien because the foreclosure sale proceeds were insufficient to satisfy 29 both. See I-10 Colony, Inc., 393 S.W.3d at 472. The bank would therefore own the property free of the builder’s liens, and it would be entitled to final summary judgment regardless of the issues discussed in Part II above. Subrogation is liberally applied and is broad enough to include every instance where one person, not acting voluntarily, pays another’s debt. Lancer Corp. v. Murillo, 909 S.W.2d 122, 127 (Tex. App.—San Antonio 1995, no writ). As used here, subrogation “essentially allows a subsequent lienholder to take the lien-priority status of a prior lienholder” by satisfying the prior lien’s associated debt. Bank of Am. v. Babu, 340 S.W.3d 917, 925 (Tex. App.—Dallas 2011, pet. denied). One who pays another’s real property taxes often asserts a right to be subrogated to the taxing authority’s lien. E.g., Smart, 597 S.W.2d at 337–38. The bank’s subrogation arguments focus on a clause in its deed of trust signed by the developer. The deed states that the bank “is subrogated to all rights, liens or interests in any of the Mortgaged Property securing the payment of any obligation satisfied or paid off out of the proceeds of [its] loans.” A tax lien was “paid off out of the proceeds of” the bank’s loan, so it contends this provision entitles it to subrogation under a contractual subrogation theory. As we explain below, however, the bank’s right to subrogation also depends upon equitable considerations. The builder counters that the bank is not subrogated to the tax lien because (1) the bank failed to comply with a statutory procedure for transferring tax liens, and (2) equitable considerations make subrogation inappropriate here.17 We 17 The builder also argues that the bank failed to identify the tracts on which it paid taxes. The bank submitted a tax map, however, as an exhibit to one of its summary judgment filings (located at volume 5, page 1111 of the clerk’s record). The account identification number on a tract that appears to contain Parcels A and B corresponds to the number on checks issued from the title company to the relevant taxing authorities. 30 disagree with the builder’s first argument but conclude there are fact issues regarding the second that preclude summary judgment on this record. A. The tax lien transfer statutes do not eliminate contractual or equitable subrogation of tax liens. The builder first argues that the bank is not subrogated to the tax lien because it failed to comply with sections 32.06 and 32.065 of the Tax Code.18 The principle of subrogation is well established, however. LaSalle Bank Nat’l Ass’n v. White, 246 S.W.3d 616, 619 (Tex. 2007). “Perhaps the courts of no state have gone further in applying the doctrine of subrogation than ha[ve] the court[s] of this state.” Faires v. Cockrill, 31 S.W. 190, 194 (Tex. 1895) overruled in part on other grounds by Fox v. Kroeger, 35 S.W.2d 679, 680 (Tex. 1931). Moreover, the doctrine has long been applied to tax liens. See Stone v. Tilley, 101 S.W. 201, 201 (Tex. 1907). Thus, to address the builder’s argument, we must determine whether the tax lien transfer statutes provide an exclusive means for acquiring the taxing authority’s priority, thereby abrogating common law subrogation of tax liens. “Of course, statutes can modify common law rules, but before we construe one to do so, we must look carefully to be sure that was what the Legislature intended.”19 Energy Serv. Co. of Bowie, Inc. v. Superior Snubbing Servs., Inc., 236 We note, however, that the area of the tract on the tax map appears to be .01 acres smaller than the combined areas of Parcels A and B on the builder’s map. We cannot tell whether this discrepancy results from rounding or if, in fact, the tract on the tax map excludes a small portion of the contested parcels depicted in the builder’s map. To the extent this discrepancy creates a fact issue, the parties can address it on remand. 18 The builder claims that the version of the statute in effect when the bank satisfied the tax lien prevented subrogation. We therefore analyze the builder’s arguments under that version, see Tex. Tax Code Ann. § 32.06, .065 (West 2008), rather than the current version, see Tex. Tax Code Ann. § 32.06, .065 (West Supp. 2012). 19 We understand “common law” in this context to mean “[t]he body of law derived from judicial decisions, rather than from statutes or constitutions.” BLACK’S LAW DICTIONARY 313 (9th ed. 2009). Thus, although equitable subrogation is technically an equitable remedy as distinguished from a remedy at law, we nonetheless look carefully to determine whether the 31 S.W.3d 190, 194 (Tex. 2007). When evaluating an argument that a statute deprives a person of a common law right, we will not extend the statute beyond its plain meaning or apply it to cases not clearly within its purview. Id. at 194 n.17 (citing Cash Am. Int’l Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000)). With this rule in mind, we construe the tax lien statutes, looking first to the plain and common meaning of their words. See State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). 1. The statutes’ text shows that they supplement, rather than abrogate, common law subrogation doctrines for tax liens. We conclude that the statutes upon which the builder relies do not abrogate common law subrogation doctrines for several reasons. The statutes contain language permitting statutory transfers, but not requiring them. Moreover, the statutes expressly limit their foreclosure and notice requirements to statutory transfers; by their terms, the statutes do not apply to subrogated lienholders. Finally, the statutes make tax lien priority available to parties that could not acquire it at common law, suggesting an intent to supplement rather than abrogate pre-existing avenues for obtaining the taxing authority’s priority. We begin with the text of the statutes themselves. The Tax Code permits tax lien transfers by providing that “[a] person may authorize another person to pay the delinquent taxes imposed by a taxing unit,” and “[a] tax lien may be transferred to the person who pays the taxes.” Tex. Tax Code Ann. § 32.06(a-1), (a-2). Parties wishing to transfer a tax lien under this statute must substantially comply with several requirements. See Genesis Tax Loan Servs. Inc. v. Kothmann, 339 S.W.3d Legislature intended abrogation. Cf. LaSalle Bank, 246 S.W.3d at 619 (construing amendment to Texas Constitution not to abrogate equitable subrogation); Smart, 597 S.W.2d at 338 (describing the “right to equitable subrogation” as “aris[ing] in accordance with certain well-established rules of law” (emphases added)). 32 104, 108–111 (Tex. 2011). For example, the transferee—the party receiving the tax lien—must file “a sworn document” with “the collector for the [taxing] unit.” Tex. Tax Code Ann. § 32.06(a-1). The document must, among other things, authorize payment of taxes, and it must identify the transferee and the encumbered property. Id. The transferee’s compliance with the authorization section triggers obligations for the tax collector. “If a transferee authorized to pay a property owner’s taxes pursuant to [the statute’s authorization section] pays the taxes,” the tax collector must issue a receipt, certify that the taxes are paid, and “identify . . . the date of the transfer” “in a discrete field in the applicable property owner’s account.” Id. § 32.06(b). After receiving this certification, the transferee must notify “any mortgage servicer and . . . each holder of a recorded first lien encumbering the property” of the transfer. Id. § 32.06(b-1). In addition, the transferee must “record a tax lien transferred as provided by this section with the [tax collector’s certification] . . . in the deed records of each county in which the property . . . is located.” Id. § 32.06(d). There are also special requirements to foreclose tax liens transferred under the statute. For example, absent agreement to the contrary, “foreclosure of a tax lien transferred as provided by [section 32.06] may not be instituted within one year from the date on which the lien is recorded.” Id. § 32.06(i). Moreover, the foreclosure must be either “in the manner provided by law for foreclosure of tax liens” or by court order pursuant to Texas Rule of Civil Procedure 736, which governs expedited foreclosure proceedings. Tex. Tax Code Ann. § 32.06(c). When proceeding under Rule 736, the transferee must still comply with section 51.002 of the Property Code, concerning deed of trust foreclosures, and section 33 32.065 of the Tax Code. Tex. Tax Code Ann. § 32.06(c)(2). Section 32.065 requires, among other things, that any holder of a recorded lien on the property receive a notice that “THE FORECLOSURE SALE REFFERED TO IN THIS DOCUMENT IS A SUPERIOR TRANSFER TAX LIEN.” Id. § 32.065(b)(6). This statutory scheme makes the transfer of a tax lien an option and discusses the rules that apply if the lien is transferred. But nothing in the text of the statute addresses what happens if the lien is not transferred or suggests a legislative intent to prohibit common law subrogation if a party pays a tax lien without transferring it. For example, the statutes provide that parties “may authorize” payment of taxes, and with such authorization “[a] tax lien may be transferred,” but transfer is not required. Tex. Tax Code Ann. § 32.06(a-1), (a-2). The statutes also provide foreclosure requirements, but they specifically limit these requirements to “transferee[s] [who] seek[ ] to foreclose a tax lien on the property under [the statute’s foreclosure subsection]”; they do not mention subrogated lienholders at all. Id. § 32.06(c-1). The statutes create recording requirements, but only for “tax lien[s] transferred as provided by [Section 32.06].” Id. § 32.06(d).20 The permissive language and narrowly defined scope of these statutory provisions demonstrates that the statutes do not provide the exclusive means of acquiring the taxing authority’s priority position. The statutes also broaden the ability of a party who pays a tax lien to protect itself, but this policy choice to supplement common law subrogation doctrines does 20 The builder argues that section 32.065 of the Tax Code governs all contracts for the payment of taxes. In fact, that section’s requirements are specifically limited to “contract[s] . . . between a transferee and the property owner under Section 32.06.” Tex. Tax Code Ann. § 32.065(b). Thus, section 32.065 only applies to contracts involving statutory lien transfers. Moreover, section 32.065 specifically notes that “Section 32.06 does not abridge the right of an owner of real property to enter into a contract for the payment of taxes.” Id. § 32.065(a). We therefore reject the builder’s argument that all tax payment contracts must comply with section 32.065’s requirements. 34 not indicate an intent to supersede those doctrines. Specifically, the statutes enable tax lien transfers when common law subrogation would not apply if parties satisfy conditions that common law subrogation would not require. At common law, for example, a “mere volunteer” with no prior interest in the property could not obtain equitable subrogation. Smart, 597 S.W.2d at 337. Under the statute, anyone can obtain the taxing authority’s priority position by meeting the statutory requirements. At common law, the taxpayer’s authorization is unnecessary to obtain subrogation. See id. at 335, 338 (discussing subrogation where taxpayer did not authorize). Under the statute, it is required. See Tex. Tax Code Ann. § 32.06(a-2). At common law (as our next section details), the right to subrogation may depend partially upon equitable considerations, making entitlement to subrogation unpredictable. The statute eliminates this uncertainty. These features make the transfer statutes a useful alternative to traditional subrogation doctrines and demonstrate that the statutes were intended to supplement, rather than eliminate, common law subrogation. 2. Most courts agree that the statutes do not eliminate common law subrogation. The Texas Supreme Court has endorsed the view that prior versions of the tax lien transfer statutes did not abrogate common law subrogation. In particular, it refused the writ in a case holding that a lender was equitably subrogated to a tax lien, as well as a case holding that such subrogation was not affected by the transfer statutes. See Chicago Title Ins. Co. v. Lawrence Invs., Inc., 782 S.W.2d 332 (Tex. App.—Fort Worth 1989, writ ref’d) (holding lender was equitably subrogated to tax liens, but not discussing transfer statutes); McDermott v. Steck Co., 138 S.W.2d 1106, 1109 (Tex. Civ. App.—Austin 1940, writ ref’d) (“It is not material whether the bank acquired a lien upon the property under [the tax lien transfer statute]. . . . [A party asserting the bank’s interest] was in equity entitled 35 to subrogation to that lien as against a junior incumbrancer . . . .”);21 see also Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 786 n.6 (Tex. 2007) (“writ refused” cases have same precedential value as Texas Supreme Court opinions). Relying upon one of these cases, Dotson v. Pahl also reached the result we do today. 206 S.W.2d 272, 273 (Tex. Civ. App.—Austin 1947, no writ) (parties were “entitled to invoke the doctrine of subrogation, notwithstanding the failure to comply with [the prior version of the tax lien transfer statute]”).22 Furthermore, in discussing tax-lien subrogation, the Texas Supreme Court has noted that “[e]ven in the absence of statutory or contractual authorization, a limited right to equitable subrogation may arise in accordance with certain well- established rules of law.” Smart, 597 S.W.2d at 338. Thus, “[u]nder various circumstances [a non-volunteer who satisfies a tax lien] may be subrogated to the taxing authority’s lien to the extent necessary for his own equitable protection.” Id. In reaffirming this equitable entitlement, the court specifically discussed statutory transfer procedures, further demonstrating that these procedures do not abrogate common law subrogation. In Genesis Tax, however, the Texas Supreme Court said of a prior version of section 32.06 “that a tax lien is enforceable only if transferred in accordance with 21 In McDermott, the tax collector “transferred” tax liens at the verbal request of a bank, but the transfer statute required written authorization from the party owing the taxes. 138 S.W.2d at 1107. The court held that the effectiveness of this intended transfer “[wa]s not material” because equity required subrogation based upon satisfaction of the tax lien. Id. at 1109. Because the court expressly stated that compliance with the statute was not material, the case holds that equitable subrogation may entitle a party to a priority tax lien notwithstanding failure to transfer the lien under statutory procedures. See id. 22 The builder contends that “[the bank] failed to cite any case giving a lender first- priority-lien status based upon subrogation to a taxing authority’s ‘special lien’ rights.” We disagree. The bank cites McDermott, which gave an otherwise junior lienholder the taxing authority’s senior priority based upon equitable subrogation. 138 S.W.2d at 1109. Chicago Title, although not cited by either party, also equitably subrogated a junior lienholder to the taxing authority’s priority position. 782 S.W.2d at 335. 36 the section’s requirements.” 339 S.W.3d at 108. The builder contends this quote signals the end of common law subrogation doctrines. We disagree for two reasons. First, subrogation was not at issue in Genesis Tax. The case addressed the effectiveness of a section 32.06 tax lien transfer when the party failed to comply strictly with certain statutory requirements. See id. at 109–11. The opinion does not mention subrogation, nor does it cite the subrogation authorities that we analyze above. Thus, read in context, the case’s statement that “a tax lien is enforceable only if transferred in accordance with [Section 32.06]” refers only to transfers, not to subrogation. See id. at 108–09. Second, the statutory language that Genesis Tax interpreted differs from that at issue here. The statute in Genesis Tax provided: “‘To be enforceable, a tax lien transferred as provided by this section must be recorded . . . .’” Id. at 108 & n.15. The version we now consider alters this language and provides: “A transferee shall record a tax lien transferred as provided by this section . . . .” Tex. Tax Code Ann. § 32.06(d). In this way, while the Genesis Tax version arguably conditioned enforceability of tax liens on recordation, the version at issue here clarifies that only transferees (as distinguished from subrogees, for example) must comply with statutory recording requirements. The version here also specifically limits the statutory recording requirements to liens transferred “as provided by [Section 32.06].” Id. We have found only one Texas case holding that the tax lien transfer statutes eliminate common law subrogation, and we disagree with its interpretation of the relevant precedents. In Cameron Life Insurance Co. v. Pactiv Corp., the court concluded “there is nothing . . . indicating that [the section giving tax liens superior priority] applies to anyone other than the taxing authorities [and their statutory transferees].” No. 13-05-760-CV, 2007 WL 2388906, at 5 (Tex. App.—Corpus 37 Christi Aug. 23, 2007, pet. denied) (mem. op.). We disagree because the above- cited cases bind us and directly contradict this conclusion. Indeed, many cases not only “indicate” but directly hold that a party can obtain the taxing authority’s lien priority through equitable subrogation.23 We also disagree with Cameron Life’s analysis of the writ-refused Chicago Title case, which granted equitable subrogation to a tax lien. Cameron Life dismissed Chicago Title by saying “[i]t is unclear . . . what procedure the bank [in Chicago Title] used to pay the tax lien.” Id. The court thus implied that the subrogation rights at issue in Chicago Title may, in fact, have been acquired by statutory transfer. Id. But Chicago Title does not even mention the transfer statutes and expressly grounds it holding in equitable subrogation. See 782 S.W.2d at 332–35. If the subrogated party in Chicago Title had actually acquired its lien by statutory transfer, it would have been unnecessary to rely upon—or even discuss—equitable subrogation. See Genesis Tax, 339 S.W.3d at 108–11 (not discussing subrogation doctrines where party relied upon statutory transfer). Chicago Title did discuss equitable subrogation, however, and its holding rested exclusively upon that doctrine. 782 S.W.2d at 334–35. Thus, we disagree with Cameron Life’s conclusion that Chicago Title may have actually turned upon statutes not mentioned in the opinion. * * For these reasons, we hold that the tax lien transfer statutes do not abrogate common law subrogation doctrines. We note, however, that parties who rely exclusively upon equity to obtain the taxing authority’s priority may face 23 In addition to the authorities already cited, see LaSalle Bank Nat’l Ass’n, 246 S.W.3d at 620; Benchmark Bank v. Crowder, 919 S.W.2d 657, 662 (Tex. 1996). 38 additional obstacles not present under the statutes. For example, equitable subrogation is only available to “the extent necessary [for the subrogee’s] equitable protection.” Smart, 597 S.W.2d at 338. “When not compelled by the equities of the situation, full subrogation to all special privileges accompanying the taxing authority’s constitutional and statutory lien will be denied.” Id. This rule limits the extent of subrogated rights. In addition, as we explain in the next section, subrogation to a tax lien can materially alter the lien’s terms and thereby prejudice intervening lienholders. See Providence Inst. for Sav. v. Sims, 441 S.W.2d 516, 520 (Tex. 1969). Here, this prejudice triggers a factual inquiry to resolve the equities. Proceeding by statute avoids the time and expense of determining title in this manner. 24 B. Because subrogation would prejudice the builder, an equitable inquiry is required, and fact questions prevent us from resolving the equities on this record. Having concluded that the bank’s failure to comply with the transfer statutes does not foreclose common law subrogation, we turn to whether the bank is entitled to the taxing authority’s priority here. As an initial matter, the bank argues that a subrogation provision in its deed of trust entitles it to contractual subrogation as a matter of law and that we cannot examine the equities of subrogation. We disagree because even though the bank and the developer agreed to subrogation under the terms of the deed of trust, the 24 The builder contends that if the tax lien transfer statutes do not eliminate common law subrogation, “these [statutes] would never apply.” That is, parties will never use statutory procedures when equity may entitle them to the same rights without the statutory hoop-jumping. We doubt this is the case. Compliance with statutory procedures guarantees the lender’s ability to enforce the taxing authority’s priority lien. Subrogation doctrines guarantee—at best—a shot at this position and high potential for litigation. Notwithstanding the viability of common law subrogation, we believe many lenders will continue to obtain tax liens through statutory transfers. 39 builder was not a party to that agreement. Our analysis therefore involves equitable considerations as well. When two parties have a subrogation contract, “equitable considerations that might control . . . in the absence of an agreement” cannot invalidate it. Fortis Benefits v. Cantu, 234 S.W.3d 642, 650 (Tex. 2007). This rule works between the parties because “[t]he parties hav[e] fixed their rights by contract” and “additional rights . . . will not be created by judicial intervention.” Smart, 597 S.W.2d at 338. This reasoning’s force diminishes in cases like this one, however, where enforcing a subrogation contract would alter a nonparty’s rights. See Chase Home Fin., L.L.C. v. Cal W. Reconveyance Corp., 309 S.W.3d 619, 631 (Tex. App.— Houston [14th Dist.] 2010, no pet.). “In these cases, the right of subrogation is not wholly dependent on the application of a contract.” Id. Instead, as to the nonparty, subrogation depends partially on equitable principles. Id. Thus, “such cases fall into a third, hybrid category.” Id. The cornerstone of this equitable analysis is prejudice to the intervening lienholder that is not a party to the subrogation contract. See Providence Inst. for Sav., 441 S.W.2d at 520; Med Ctr. Bank v. Fleetwood, 854 S.W.2d 278, 286 (Tex. App.—Austin 1993, writ denied). For example, merely changing the identity of the senior lienholder does not affect the intervening lienholder’s rights and therefore is not prejudicial. Med Ctr. Bank, 854 S.W.2d at 285–86. Although subrogation may alter who holds the senior lien, the junior lienholder is still junior and still in the same amount. See id. Whether subrogation prejudices intervening interests is determined as of the time of the transaction supporting subrogation. Id. at 285. The consequences of subsequent transactions or events are not relevant to this inquiry. Id. In many cases, subrogation changes only the intervening lienholder’s 40 identity. This change creates no prejudice, so subrogating the intervening lienholder is appropriate as a matter of law. See, e.g., id.; Chase Home Fin., L.L.C., 309 S.W.3d at 631–32; Texas Commerce Bank Nat’l Ass’n v. Liberty Bank, 540 S.W.2d 554, 556–57 (Tex. Civ. App.—Houston [14th Dist.] 1976, no writ); see also Providence Inst. for Sav., 441 S.W.2d at 520. Indeed, one court has stated that “there is no prejudice to intervening interest holders” “absent a showing that subrogation results in [(1)] additional debt having priority over or parity with the intervening interest, [(2)] a material change in the terms of the superior interest, or [(3)] other pecuniary loss resulting from the subrogation.”25 Med Ctr. Bank, 854 S.W.2d at 286. In the absence of prejudice, subrogation must be allowed, but the mere presence of prejudice does not necessarily prevent subrogation. See Fleetwood v. Med Ctr. Bank, 786 S.W.2d 550, 555 n.2 (Tex. App.—Austin 1990, writ denied). Rather, “when prejudice exists, the trial court should, in exercising its equitable discretion, consider the totality of the circumstances, of which the existence of prejudice to one or more parties is a part.” Id. Factors to consider include the extent of prejudice, its foreseeability, and whether the party claiming prejudice could have avoided it. Id. 1. Subrogation would prejudice the builder by materially changing the terms of the superior interest. Applying this analysis, we conclude that subrogating the bank to the tax liens would prejudice the builder because it would alter the foreclosure requirements that otherwise apply to tax liens. Statutory and constitutional constraints dictate a tax lien’s terms. For example, with the exception of 25 Because we conclude that one of these circumstances exists here, we decline to address whether these are, in fact, the only circumstances that may demonstrate prejudice to an intervening lienholder. 41 abandoned property, tax liens must be foreclosed judicially rather than by trustee’s sale. See Tex. Tax Code Ann. § 33.41 (West 2008); City of Wichita Falls v. ITT Commercial Fin. Corp., 827 S.W.2d 6, 10 (Tex. App.—Fort Worth 1992) (“[A]d valorem tax liens must be judicially foreclosed . . . .”), aff’d in part, rev’d in part on other grounds, 835 S.W.2d 65 (Tex. 1992). Texas Rule of Civil Procedure 39 requires the taxing authority to join any party with an interest in the property in the foreclosure suit. Murphee Prop. Holdings, Ltd. v. Sunbelt Sav. Ass’n of Texas, 817 S.W.2d 850, 852 (Tex. App.—Houston [1st Dist.] 1991, no writ); see also Kothari v. Oyervidez, 373 S.W.3d 801, 810 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (“[A]t least generally, ‘a lienholder must be joined in a delinquent tax suit in order to be bound by it.’”). The Due Process Clause of the United States Constitution also requires that such lienholders receive actual notice of foreclosure. Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 798–99 (1983). If the foreclosure suit succeeds, all parties to the suit must then receive notice of the foreclosure sale. Tex. Tax Code Ann. § 34.01 (West 2008). These foreclosure requirements protect intervening lien holders, and the bank’s deed of trust eliminated them here. The deed of trust does not require the trustee to notify junior lien holders prior to foreclosure, and the builder had no statutory right to notice. See Jones v. Bank United of Texas, FSB, 51 S.W.3d 341, 344 (Tex. App.—Houston [1st Dist.] 2001, pet. denied); Kothari, 373 S.W.3d at 808–09. In sum, before subrogation, the tax lien could only be foreclosed through a judicial proceeding requiring the builder as a party, but after subrogation, the bank could foreclose (thereby extinguishing the builder’s lien) without even notifying the builder. Indeed, the builder has offered evidence that it had no knowledge that any tax lien existed or that the bank was asserting the taxing authority’s priority 42 position in its foreclosure. Eliminating protections that existed prior to subrogation constitutes a “material change in the terms of the superior [tax lien],” triggering an equitable inquiry. See Med Ctr. Bank, 854 S.W.2d at 286; cf. First Nat’l Bank of Kerrville v. O’Dell, 856 S.W.2d 410, 416 (Tex. 1993) (where “[b]ank through its ‘secret’ (as to [junior lienholder]) foreclosure would obtain the title and extra equity” and deprive junior lienholder of his interest, court “would not allow such an inequitable result under the guise of ‘equitable’ subrogation”). 2. Questions of fact regarding the equities of subrogation preclude summary judgment. Although summary judgment is available in equitable actions, certain factors counsel against summary dispositions in equitable subrogation cases. Fleetwood, 786 S.W.2d at 556–57. For example, the “material facts” in these cases are difficult to define precisely. Id. at 556. “The main guiding principle is the prevention of an unfair or unjust result.” Id. Trial courts have a “measure of discretion” in weighing the circumstances and adjusting the remedy to accomplish this main goal. See id. at 555–57 & n.2. But a trial court does not have unfettered discretion to determine the equities of subrogation. Rather, the right to subrogation must be determined in light of its purpose: preventing unjust enrichment. See Smart, 597 S.W.2d at 337. Thus, the principal issue is the extent to which subrogation is necessary to prevent the bank’s property tax payments from unjustly enriching the builder. See id. at 337–38. The unresolved factual issues here become clearer when one understands the usual basis for finding unjust enrichment in this type of case. 26 When a junior 26 Equitable subrogation is generally used to avoid unjustly enriching the debtor (here, the developer). See First Nat’l Bank of Kerrville, 856 S.W.2d at 415. But as discussed above, the 43 lienholder satisfies a tax lien to protect its own interest, everyone with an interest in the property benefits as a result. Instead of a tax-lien foreclosure potentially extinguishing all interests, everyone keeps what they have. Subrogating the party who actually satisfies the senior debt places the parties where equity would have them. The junior interest holders who declined to satisfy the lien remain subject to it. The party who paid the senior debt gets what it paid for. Factual questions regarding whether this reasoning applies here cannot be resolved on this record. The prejudice to the builder if subrogation is allowed, the extent of unjust enrichment to the builder if subrogation is not allowed, and the extent to which subrogation is necessary for the bank’s equitable protection all play a role in the analysis as discussed above. For example, whether the builder knowingly allowed the bank to protect the property from any foreclosure, the imminence of a tax foreclosure suit without the bank’s intervention, and the developer’s potential alternatives to foreclosure may be relevant considerations. Cf. World Help v. Leisure Lifestyles, Inc., 977 S.W.2d 662, 682 (Tex. App.—Fort Worth 1998, pet. denied) (holding party who purchased vendor’s and deed of trust liens knowing taxes were due on property and subsequently paid taxes was not equitably subrogated to tax liens). Whether the bank intended to be subrogated to the tax lien initially is also relevant. See Fleetwood, 786 S.W.2d at 556 (remanding to consider, among other things, whether parties initially intended subrogation). If the bank sought subrogation initially, its reason for not complying with the tax lien transfer statute would be relevant. For example, if the bank intentionally avoided a statutory transfer to surprise the builder, this fact would likely cut against subrogation. equitable balance necessary to determine whether prejudice to an intervening lienholder prevents subrogation focuses upon the would-be subrogee (the bank) and the intervening lienholder (the builder). See Fleetwood, 786 S.W.2d at 556–57. 44 With a more developed record, these and other fact issues that bear on the equities of subrogation can be better addressed. See id. at 557 (reversing summary judgment where the “record does not fully develop the facts on which the trial court’s equitable discretion must be exercised, and where the facts that are developed, [even if] uncontroverted, can give rise to more than one reasonable inference”).27 For now, “[a]s long as there is a probability that a case has for any reason not been fully developed, [we] ha[ve] the discretion to remand rather than render a decision.” Pena v. Smith, 321 S.W.3d 755, 759 (Tex. App.—Fort Worth 2010, no pet.); see also Scott Bader, Inc., v. Sandstone Prod., Inc., 248 S.W.3d 802, 822 (Tex. App.—Houston [1st Dist.] 2008, no pet.).28 Because the bank is not entitled to summary judgment on this record on the ground that it is subrogated to the tax liens, we reverse the remainder of the summary judgment in favor of the bank and remand for further proceedings consistent with this opinion. CONCLUSION For these reasons, there are fact issues regarding the parties’ claims that largely preclude summary judgment. We therefore sustain in part the builder’s first issue on appeal, in which it argues that the trial court erred in granting 27 On remand, the parties and the trial court should consider which facts material to the equitable analysis are uncontroverted, as well as which are disputed and may need to be found by a jury. See State v. Tex. Pet Foods, Inc., 591 S.W.2d 800, 803 (Tex. 1979) (“Although a litigant has the right to a trial by jury in an equitable action, only ultimate issues of fact are submitted for jury determination. The jury does not determine the expediency, necessity, or propriety of equitable relief.”). We recognize the possibility that additional discovery may resolve some or all of the fact questions that now prevent summary judgment. This opinion does not prevent the parties from filing future motions for summary judgment, including motions that seek to narrow or resolve the subrogation dispute. 28 The builder argues it is nevertheless entitled to summary judgment based upon Conroy Mortgage Corporation v. Fielder, 375 S.W.2d 344 (Tex. App.—Fort Worth 1964, writ ref’d n.r.e.). We disagree because the equities in Conroy were much clearer than those here. The party seeking subrogation in Conroy appears to have been a volunteer, and the intervening lienholder had no notice whatsoever of the foreclosure sale that extinguished its interest in the property. Neither of those circumstances are present here. 45 summary judgment for the bank. Nonetheless, neither the builder nor the bank has established an entitlement to final judgment as a matter of law. Thus, we overrule the builder’s second issue, in which it argues its entitlement to summary judgment. Specifically, fact issues preclude final summary judgment for either party based upon the builder’s mechanic’s liens because we cannot determine when the contract was terminated or abandoned and whether the builder’s post-release expenses entitle it to mechanic’s liens. The release does establish, however, that the builder was not entitled to re-file a mechanic’s lien against Parcel A to secure the unpaid portion of the pre-release debt. We therefore affirm in part the trial court’s grant of summary judgment for the bank, holding that the bank’s interest in Parcel A is not subject to the builder’s lien for the unpaid pre-release debt. As to the bank’s contention that the tax liens entitle it to summary judgment, fact issues regarding the equities of subrogating the bank to these liens preclude summary judgment on the present record. We therefore reverse the remainder of the trial court’s summary judgment and remand this case for further proceedings consistent with this opinion.29 /s/ J. Brett Busby Justice Panel consists of Chief Justice Hedges and Justices Brown and Busby (Hedges, C.J., dissenting). 29 We do not intend this opinion to dictate how the trial court should proceed in addressing the live issues in this case. The trial court should exercise its discretion to address these issues in the order and manner it deems most appropriate. 46	{ "pile_set_name": "FreeLaw" }
247 B.R. 502 (2000) In re FEINSTEIN FAMILY PARTNERSHIP, Debtor. No. 96-14294-9P1. United States Bankruptcy Court, M.D. Florida, Ft. Myers Division. February 24, 2000. 503 Domenic Massari, III, Massari Law Group, Tampa, Florida, for Feinstein Family Partnership. W. Andrew Clayton, Jr., Sarasota, Florida, Vance E. Salter, Coll Davidson Smith Salter & Barkett, P.A., Miami, Florida, for trustee Shari Streit Jansen. Brian K. Gart, Greenberg Traurig, P.A., Fort Lauderdale, Florida, for the Kennedy Funding Group. Mark J. Bernet, Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Tampa, Florida, for Freeman & Slosbergas, trustees. Carlos M. Sires, Jeffrey T. Kucera, Kirkpatrick & Lockhart LLP, Miami, Florida, for the Northern Trust Bank of Florida, N.A. David E. Cary, Fort Myers, Florida, for the Lee County Tax Collector. Raymond V. Miller, Kaufman, Miller, Dickstein & Grunspan, P.A., Miami, Florida, for the NationsBank, N.A. Holland & Knight, LLP, Tampa, Florida, W. Patrick Ayers, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, Florida, S. Randall Humm, Norman Rave, DOJ, Environmental Defense Section, Environment and Natural Resources Division, Washington, DC, for Anglo-American Financial. ORDER ON JOINT MOTION OF SHARI STREIT-JANSEN, CHAPTER 7 TRUSTEE, AND KENNEDY FUNDING GROUP FOR APPROVAL OF (I) SETTLEMENT AGREEMENT, (II) SALE OF PROPERTY OF THE ESTATE PURSUANT TO SECTION 363 OF THE BANKRUPTCY CODE, AND (III) NOTICE AND BIDDING PROCEDURES ALEXANDER L. PASKAY, Bankruptcy Judge. The matter under consideration in this Chapter 7 case, originally commenced as a 504 Chapter 11 case, is a Joint Motion to Compromise and a Motion to Sell Property filed by Shari Streit-Jansen (Trustee) and Kennedy Funding, Inc.; Anglo American Financial; 3 Keys, Ltd.; and Corrine Muller as Trustee (collectively referred to as the Kennedy Funding Group.) The Joint Motion was originally challenged by the Lee County Tax Collector; NationsBank, N.A. (NationsBank); Freeman & Slosbergas, Trustees and Gelman Trust (F & S); Northern Trust Bank of Florida, N.A. (Northern Trust); and Carlton, Fields, Ward, Emanuel, Smith & Cutler, P.A., (Carlton Fields). The Objections by the Tax Collector and NationsBank have been resolved by agreement and have been withdrawn. This leaves for consideration the Objections by F & S, Northern Trust, and Carlton Fields. Before considering the Objections it should be helpful to briefly summarize the Joint Motions under attack. The Joint Motions have actually two components, each governed by distinct legal principles. The first is a proposed settlement of a usury claim against Kennedy Funding Group relating to a loan by Kennedy Funding Group to the Chapter 11 Debtor (DIP Financing); the second is a proposed sale on a credit bid pursuant to Section 363(k) by the Trustee free and clear of all claims encumbering all the real property of the estate that is currently involved in a foreclosure suit filed by Kennedy Funding Group (the "Property"). The thrust of the Objections by Freeman and Slosbergas, Northern Trust and Carlton Fields (collectively the Objectors) are as follows: First, according to the Objectors, the proposed settlement violates the DIP Order entered in 1997 which authorized the DIP Financing by Kennedy Funding Group. Specifically, the Objectors contend that the proposed settlement eliminates the adequate protection guarantee to the junior lienors by the DIP Order. The DIP Financing Order provided release prices based on 70% of the net or 75% of the gross proceeds of the sales, based on a minimum sale price to be agreed upon by the Debtor and the Kennedy Funding Group. Second, the Objectors contend that if the proposed sale is approved, the release provisions are effectively written out of the DIP Financing Order and nullified. This is because the proposed sale is a sale in bulk which will not permit the calculation and the apportionment of the release price among the several junior lienors. More importantly, the proposed sale is to Kennedy Funding Group, based upon a credit bid pursuant to Section 363(k) of the Code. This would produce no actual monies, especially in the present instance where the Kennedy Funding Group claims to have a right to bid not only the actual cash proceeds of the DIP Financing advanced to the Debtor, but the full amount authorized, i.e. $16,200,000.00 plus costs and attorney fees or an amount in excess of $20 million. Third, the DIP Financing Order gave an option to the junior lienors to pay 6.5% of the total debt owed to Kennedy Funding Group and, upon payment, they are to receive a release of the Superpriority lien of the Kennedy Funding Group on SAD Lots 7, 10 and 12 parcels. The sale as proposed would effectively deprive the junior lienors to exercise this option. Lastly, the Objectors maintain that the proposed sale violates Section 363(f)(3) because it will not satisfy in full all valid liens encumbering the Property intended to be sold by the Trustee. In order to place the Joint Motion and the Objections challenging the Motion in an understandable posture, a recap of the history of the property involved and the previous proceeding leading up the present controversy should be helpful. The Property involved has been owned by the Feinstein Family for years. The Property, located in the City of Ft. Myers, is approximately 155 acres and remained largely undeveloped for many years. The property is comprised by two sections, one 505 referred to as SAGA 24 the other SAD 7, 10 and 12. The two parcels in SAGA 24 were encumbered by a mortgage held by Northern Trust. F & S also held a mortgage on discreet parcels. Carlton Fields had a mortgage on one parcel. The Feinsteins decided to develop the Property and approached the City of Ft. Myers (City) for financial assistance. The application was ultimately approved and the City loaned $21,678,978.00 to Feinstein Family Partnership (Debtor), an entity formed by the Feinsteins. The loan was secured by a special assessment tax and was guaranteed by the City by pledging its non ad-valorem revenues as security. The proceeds of the loan were to be used to construct the infrastructure of SAGA 24. In addition, the City financed the development of SAD 7, 10 and 12 by lending $1,628,692.09. This obligation was also guaranteed by the City by the same pledge and was subject to the special assessment of taxes. Both obligations carried a provision that in addition to the principal the borrower was obligated to pay costs and reasonable attorney fees. The property involved was referred to as the Colonial Properties Development of Regional Impact (Colonial Properties DRI). In addition to obtaining the loan from the City, the Debtor also acquired the development rights, approvals, permits, easements and road impact fees. Under the provisions of both loans, the Debtor was required to repay the entire balance plus costs and attorney fees due upon completion of the infrastructure. The Debtor could not obtain sufficient new financing to satisfy the balance due to the City under the special tax assessment when the City demanded payment. Having failed to receive payment, the City commenced a suit in the Circuit Court of Lee County to foreclose its lien securing the special tax assessment. Not too much of a surprise to anyone, the Debtor violently disputed the City's contention that the balance on the loans became due and contended that the infrastructure was not completed. The disagreement centered around the interpretation of the term "completion." The disagreement, in turn, immediately spawned a flurry of litigation between the City and the Debtor, not only in the Circuit Court where the City filed its foreclosure action, but also in the United States District Court where the Debtor and its principals, the Feinstein Brothers, sued the City, the Mayor of the City and other City officials asserting various and sundry claims. When the inevitable loss of the property appeared to be looming on the horizon, the Debtor did what many debtors have done in the past, sought refuge in the court of last resort and on October 19, 1996, filed their Petition for relief under Chapter 11. The City wasted no time and on October 25, 1996, sought relief from the automatic stay in order to proceed and complete its pending foreclose action of its mortgage lien which was secured by the special tax assessment bonded indebtedness. Due to constant continuances, the Motion was not considered until March 1997. On March 7, 1997, this Court entered an Order, granting the City's Motion and authorizing it to continue its pending foreclosure in the Circuit Court. It soon became evident that without finding a solution to its problem with the City the Debtor's chance to achieve rehabilitation and save the Property was in serious jeopardy. In order to solve the problem the Debtors embarked on an extensive search to obtain post-petition financing sufficient to take out the City. On April 4, 1997, the Debtor filed a Motion for Authority to Borrow on First Priority Basis. At the time the Debtor filed the Motion, it had no firm commitment from any lender. However, at the rescheduled hearing on the Motion, the Debtor announced that it had arrived at an agreement with Kennedy Funding Group. The Motion was immediately challenged by Northern Trust, the City, the Lee County Tax Collector; NationsBank, the 506 International Bank, Gemstar Homes and Vizcaya Joint Venture. The Motion and the Objections were heard and on May 8, 1997, this Court entered the DIP Financing Order granting the Motion to borrow on a superpriority basis. In its Order, the Court found inter alia that the interest of all secured creditors holding liens junior to the first lien of the City, which the DIP loan will replace, will be adequately protected. First, it will be adequately protected because the DIP lending up to $16,200,000.00 will reduce the debt to the City by almost half. Second, the DIP Loan provided for release prices of 70% of net sale proceeds, or 75% of the gross sale proceeds, based on a minimum sales price to be agreed upon between the Debtor and Kennedy Funding Group. The Order further provided that in the event the proceeds are insufficient to satisfy the junior lien holder whose collateral was sold, the Debtor will provide a substitute collateral to the junior lienors to the extent they did not receive a full satisfaction of their respective claims. In addition, the DIP Financing Order provided that all creditors holding liens on SAD 7, 10, and 12 may pay 6.5% of the total balance owed to Kennedy Funding Group and to its Participants. Upon payment, the Kennedy Funding Group would deliver a satisfaction of the superpriority lien on SAD 7, 10 and 12 properties. The payment was required to be 6.5% of the total balance owed and could not be apportioned between the parcels. The DIP Financing Order authorized the Debtor to borrow on a first priority lien basis subject only to the terms and conditions of the Order. The purpose of the Kennedy Funding Group's loan was to pay the City $10,500,000.00 pursuant to a settlement in full satisfaction of the lien which secured the special tax assessment less any amount already paid to the City on account of a debt of CP III, Ltd., an affiliate of the Debtor whose parcels were also encumbered by the special tax assessment. The Loan was closed and the City was paid off. The Kennedy Funding Group recorded its mortgage which, by virtue of the DIP Financing Order, became a first mortgagee on the subject property and, pursuant to the DIP Financing Order. The mortgage was superior to the mortgage liens of Northern Trust, F & S and Carlton Fields. The Debtor defaulted on the DIP Loan and on May 20, 1998, the Kennedy Funding Group sought relief from the automatic stay. The Motion was granted on May 27, 1998. In the interim, the Debtor failed to obtain confirmation of its Fifth Plan of Reorganization. On August 8, 1998, this Court entered on Order converting the Chapter 11 case to a Chapter 7 case. Shari Streit-Jansen was placed in charge of the administration of the Chapter 7 case. The Kennedy Funding Group having obtained a relief from the automatic stay, commenced a foreclosure action in the Circuit Court of Lee County naming all junior lienors and the Trustee as defendants. In due course, the Defendants, including the Trustee, filed their Answers alleging that the DIP Loan was usurious because out of the total amount authorized by the DIP Financing Order of $16.2 million only $12.3 million was, in fact, advanced to the Debtor. The balance claimed by the Kennedy Funding Group in its suit was for usurious loan commitment fees, unauthorized attorney fees paid to Debtor's counsel, prepaid interest and expenses. Basically, this is the factual backdrop of this fairly complex real estate case against which this Court is called upon to consider the immediate matters under consideration, the Joint Motion for Approval of Settlement Agreement, Sale of Property of the Estate Pursuant to Section 363 of the Code and Notice and Bidding Procedures. JOINT MOTION FOR APPROVAL OF SALE OF PROPERTY Before considering the merits of the Motion to Sell, the following preliminary comments 507 are relevant and appropriate. It is not rare that trustees of Chapter 7 estates are approached by secured creditors who seek the trustee's help to liquidate fully encumbered collateral. They realize that before the trustee is willing to go along with the proposition the secured creditor must put a little sweetener in the deal by agreeing to pay sufficient sums to compensate the trustee and to pay other costs of administration. The more sophisticated trustee may demand that the secured creditor throw in a pittance to pay a meaningless dividend to unsecured creditors, making the arrangement more palatable to the Court. The proposition is very attractive from the secured creditor's point of view and economically sound because it may stave off a possible attempt by the Trustee to seek to surcharge the collateral and, most importantly, save the potentially expensive cost of a foreclosure suit. The offered deal is also attractive to the trustee because it assures that he or she will earn a commission in an otherwise no asset case and may seek a commission based on the gross sales price and not on the net distributed to parties of interest. While some courts may find this calculation of the trustee's commission acceptable, there is well reasoned authority to the contrary. It is now clear and it is well established that Section 326 of the Code precludes compensation where fully encumbered property is abandoned, sold or turned over to a secured creditor. See In re Lambert Implement Co., Inc., 44 B.R. 860 (Bankr.W.D.Ky.1984); In re Hinkle, 15 B.R. 572 (Bankr.Kan.1981). In a more recent case, In re Lan Associates XI, LP, 192 F.3d 109 (3rd Cir.1999), the Third Circuit Court of Appeals held that the value of a credit bid could not be included in the base on which the trustee's compensation is computed. Several Circuit Courts of Appeal condemning this practice commented that in enacting Section 554, Congress was aware of the claim that formerly some trustees took burdensome or valueless property into the estate and sold it in order to increase their commissions. Some of the early cases condemned this particular practice of selling burdensome or valueless property simply to obtain a fund for their own administrative expenses. See e.g. Standard Brass Corp. v. Farmers Nat. Bank of Belvidere, 388 F.2d 86 (7th Cir.1967); In re Miller, 95 F.2d 441 (7th Cir.1938). To prevent such practice Congress gave the courts the power to order the trustee to abandon burdensome or valueless property. See In re K.C. Mach. & Tool Co., 816 F.2d 238 (6th Cir. 1987). It is now almost universally recognized that where the estate has no equity in a property, abandonment is virtually always appropriate because no unsecured creditor could benefit from the administration. In re Cunningham, 48 B.R. 509 (Bankr.M.D.Tenn.1985); In re Air Vermont, Inc., 41 B.R. 486 (Bankr.Vt.1984); Matter of Karl A. Neise, Inc., 31 B.R. 409 (Bankr.S.D.Fla.1983); In re Anspach, 13 B.R. 208 (Bankr.E.D.Pa.1981); No one can urge in good faith that the primary and really the only duty of a Chapter 7 trustee is "to collect and reduce to money the property of the estate as is compatible with the best interest of parties of interest." It is also true that fully encumbered property is still property of the estate until it is either abandoned by the trustee pursuant to Section 554(a) or released upon stay relief and sold by the secured creditor and that secured creditors are parties of interest. However, the interests of secured creditors by the very nature of the interest is diametrically opposed to the interest and is totally antagonistic to the interests of the general unsecured creditors. Clearly, the Code never contemplated that a Chapter 7 trustee should act as a liquidating agent for secured creditors who should liquidate their own collateral. The relevant facts and the scenario in the present instance is a precise carbon 508 copy of the one just described. There is no question that the Property is overly encumbered. It is without doubt that the Property has no cognizable value over and above the total debts secured by valid liens. The fact of the matter is that Kennedy Funding Group relying, at least in part, on the lack of equity of the estate sought and obtained relief from the automatic stay and did not delay in filing its suit to foreclose its superpriority lien granted to it by the DIP Order. Apparently, upon realizing that it faced strong challenges to the validity of its mortgage lien not only by junior lienors but even by the trustee in the Circuit Court litigation, it decided that it has better to come back to Bankruptcy Court and make a deal. That is precisely what happened when Kennedy Funding Group got together with the Trustee and offered the sweetener described above by generously agreeing to pay to the estate $600,000.00 to cover the costs of administration, notably the Trustee's commission, attorney fees to professionals hired by the Trustee, among others, and also allegedly to pay some dividend to unsecured creditors, a clearly dubious proposition in light of the fact that the total unsecured claims filed are in excess of $3 million. Clearly, this fact pattern strongly suggests that the Trustee has no business selling the Property to the Kennedy Funding Group, let alone on a credit bid. As noted, the stay had been lifted at Kennedy Funding Group's request. Kennedy Funding Group selected a forum to enforce its mortgage lien and that is where the matter should rest unless there are some very strong countervailing compelling policy considerations and principles which would require a different conclusion. This leads to the merits of the Motion to sell in bulk, all the real estate of the estate sell free and clear of all liens and encumbrances to Kennedy Funding Group on a credit bid pursuant to Section 363 of the Code. This Section is the only basis for the Trustee to sell property of the estate, providing: The Trustee may sell property . . . free and clear of any interest in such property of an entity other than the estate, only if . . . (3) such interest is a lien and the price at which such property is to be sold is greater than the aggregate value of all liens on such property The interpretation of this Section governing the sale of encumbered property is far from uniform. The disagreement centers around the meaning of the phrase "value of all liens." A number of courts construe the term "value" to mean the face amount of the liens. Therefore, a sale free and clear of liens cannot be approved unless the sale price exceeds the total amount of debts against the property. See Matter of Riverside Inv. Partnership, 674 F.2d 634, 640 (7th Cir.1982); In re Heine, 141 B.R. 185 (Bankr.D.S.D.1992); In re Terrace Chalet Apartments, Ltd., 159 B.R. 821 (N.D.Ill. 1993); In re Julien Co., 117 B.R. 910 (Bankr.W.D.Tenn.1990). Other courts construe the term "value" to mean the secured value, and not the face amount of the lien. In re Collins, 180 B.R. 447 (Bankr.E.D.Va.1995). In Riverside Inv. Partnership, supra, the Seventh Circuit stated that as a general rule the Bankruptcy court should not authorize the sale free and clear of liens unless the sale proceeds will fully compensate secured lien holders and produce some equity for the benefit of the estate, citing Hoehn v. McIntosh, 110 F.2d 199, 202 (6th Cir.1940). The Court in Riverside Investment, supra, relied on the legislative history of Section 363(f)(3). H.R.Rep. No 95-595, 95th Cong., 1st Sess. 345, U.S.Code Cong. & Admin.News 1978 p. 5963; S.Rep. No. 95-989, 95th Cong., 2d. Sess. 56 (1978), U.S.Code Cong. & Admin.News 1978 p. 5787. These Reports make it clear that Congress intended Section 509 363(f)(3) to protect the amount of the secured debt and not the economic value of the lien. The Bankruptcy Amendments of 1984 further demonstrate that Section 363(f) does not protect merely the actual value of the lien. The previous version authorized a sale free and clear of liens if the sale proceeds exceeded the value of the "interest" of secured parties in the property. Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No 98-353, 98 Stat. 372 (BAFJA). The amended version now provides that the sale of free and clear of liens is permissible if the proceeds of the sale exceed the value of "all liens on the property." This court is not unaware that some courts arrived at a different conclusion in holding that Section 363(f)(5) protects only the economic value of the collateral. See In re Milford Group, Inc., 150 B.R. 904 (Bankr.M.D.Pa.1992); In re Terrace Gardens Park Partnership, 96 B.R. 707 (Bankr.W.D.Tex.1989); In re Collins, supra; In re Beker Industries Corp., 63 B.R. 474 (Bankr.S.D.N.Y.1986); Matter of Rouse, 54 B.R. 31 (Bankr.W.D.Mo.1985); In re Hatfield Homes, Inc., 30 B.R. 353 (Bankr.E.D.Pa.1983). All these case treated motions to sell property pursuant to Section 363(f)(3) in the context of Section 506(a). Section 506(a) is designed to determine secured status. This Section was designed to serve a twofold purpose: (1) to limit the estate's liability on a claim filed as a secured to payment up to the actual value of the collateral; and (2) to bifurcate the claim and permit an undersecured creditor to have an allowed unsecured claim and share on par with the other allowed unsecured claims. In sum, Section 506(a) was designed for the purpose of determining the allowance of secured claims and not for the purpose of selling encumbered property without satisfying in full all liens from the sale proceeds. This conclusion is further fortified by Subclause (d) which provides that to the extent a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void. It is evident that Section 506 was designed to deal only with claims actually filed. It is elementary that secured creditors are not required to file proofs of claim in a Chapter 7 case. F.R.B.P. 3002(a). Consequently, their claims cannot be disallowed and, in turn, their liens voided pursuant to Section 506(d). It follows that the reliance on the provisions of Section 506 is misplaced and they are irrelevant to a Section 362(f)(3) sale. Thus, the Trustee cannot use Section 506 to justify the sale of encumbered property without complying with the requirements of Section 363(f)(3), that is the full satisfaction of all valid liens encumbering the Property. To conclude otherwise would render Subclause (5) superfluous. This Section permits a cramdown if the secured creditor could be compelled in a legal or equitable proceeding to accept money satisfaction of the interest of the lien holder. One last comment. Even assuming without conceding that it is appropriate to treat a Section 363(f)(3) motion by relying on Section 506(a) to justify a sale without fully satisfying all valid liens against the subject property, this Court found no authority to permit the sale of property which is fully encumbered and in which the estate has no equity, pursuant to Section 363(f)(5). Having fully considered the merits of the Motion to Sell, this Court is satisfied that for the reasons outlined, it is inappropriate to permit the proposed sale. Since the automatic stay has already been lifted, the Kennedy Funding Group should proceed to foreclose its mortgage lien in the forum of its own choosing and should conclude its foreclosure in that forum. Accordingly, it is ORDERED, ADJUDGED AND DECREED that the Motion to Sell Property Free and Clear of Liens and to Approve the Procedure of the proposed sale be, and the same is hereby, denied. It is further ORDERED, ADJUDGED AND DECREED that unless the Motion to Approve 510 Settlement could be considered independent of the Sale, the Motion is also denied. However, if the Kennedy Funding Group is willing to submit the Settlement for approval without the sale this Court will be inclined to approve the same.	{ "pile_set_name": "FreeLaw" }
517 So.2d 591 (1987) M & M INVESTMENT COMPANY v. REGENCY OAKS APARTMENTS and Alabama Power Company. 86-854. Supreme Court of Alabama. November 13, 1987. 592 Perry Hubbard, Tuscaloosa, for appellant. G. Thomas Yearout and Brett N. Blackwood, Birmingham, for appellee Regency Oaks Apartments. Patricia A. McGee of Balch & Bingham, Birmingham, and McCoy Davidson of Roberts, Davidson & Wiggins, Tuscaloosa, for appellee Alabama Power Co. JONES, Justice. As originally filed, the "declaratory judgment" complaint of plaintiff/appellant M & M Investment Company ("M & M") was based upon a dispute between M & M and defendant/appellee Regency Oaks Apartments ("Regency") over the interpretation and application of the reservation of an easement in M & M's lease and the grant of an easement in Regency's deed.[1] M & M's lessor and Regency's grantor are one and the same person, Gordon Davis. The easement in question in both instruments relates to the same 30-foot-wide and 200-foot-long strip of land across M & M's leased property and provides one of two means of access to Regency's property, which adjoins the property leased to M & M. By amendment, M & M added defendant/appellee Alabama Power Company ("APCo") as a party. As amended, the complaint sought a declaration of the rights of the respective parties with regard to the manner and extent of the defendants' usage of the easement, claiming that Regency's placement and construction of a 24-foot-wide roadway, with bordering 7-inch-high lateral concrete curbing, exceeded the contemplated use of the easement; that APCo exceeded its easement rights by installing underground electrical cables; and that both defendants violated their authority by constructing permanent "improvements" upon the ingress and egress easement, to the total and unreasonable exclusion of M & M's use of this portion of its leased property. The trial court granted Regency's motion for partial summary judgment, declaring that the right reserved and granted in the lease and deed created a valid and enforceable easement for the general purposes of ingress and egress by Regency and its tenants over the 50-foot strip across M & M's leased property. Although it was 593 made final by a Rule 54(b), A.R.Civ.P., order, this partial summary judgment was not appealed. After denying M & M's motion for summary judgment, the trial court granted Regency's and APCo's separate motions for summary judgment. M & M appeals. We affirm as to APCo; we reverse as to Regency. Because our holding is based primarily on the error of the trial court in its misapplication of the law to certain undisputed facts, a detailed recital of the evidence in support of, and in opposition to, the summary judgment motions is not necessary. Rather, we will recite only so much of the evidence as is essential to an understanding of the relevant principles of law and their application to the triable issues of fact. We begin by setting forth the easement provisions of the two documents in question. We quote from the lease between Davis, as lessor, and M & M, as lessee: "The Lessor herein reserves and retains an easement for the purpose of ingress and egress over, across and upon a strip of land fifty feet in width extending from the north side of 15th Street across the east side of said property to the north line of the property herein leased. This easement is for the purpose of free access over and across said property from 15th Street to the property owned by Lessor north of the property herein leased and may be improved by Lessor in any manner he sees fit." We quote from the deed from Davis, as grantor, to Regency, as grantee: "ALSO, a permanent easement with the right of ingress and egress and travel over and upon a strip of land fifty (50) feet in width lying along the north boundary of 15th Street and running back of uniform width a distance of 200 feet to the south line of the property hereinabove described and conveyed; said easement being more particularly described as follows:" A close reading of these easement provisions discloses two essential differences in the separate documents: 1) The easement in the lease is an interest reserved in the lessor, who continues to own the fee, while the easement in the deed is an interest in a portion of the leased property, granted by the owner to the grantee (the new owner) of the property described in the deed; and 2) the last clause of the easement language in the lease, "may be improved by the lessor in any manner he sees fit," is not contained in the easement language in the deed. It is reasonably clear from the record, and from the briefs of counsel, that the trial court accepted and applied the principles of law advanced by Regency and APCo. They contend that their rights to the use of the easement spring from the easement language of the lease. In other words, the appellees do not contend (indeed, they tacitly concede otherwise) that the simple ingress and egress easement provided in the deed would not authorize them to arbitrarily exclude M & M from such reasonable use of the 50-foot strip as would not interfere with Regency's and APCo's reasonable use of the easement. M & M asserts that Regency's and APCo's position, as accepted by the trial court, is tantamount to interpreting the language of the lease ("may be improved by the lessor in any manner he sees fit") so as to convert the easement into a grant of the fee. Because the easement language of the lease inures to the benefit of Regency, as grantee of the Regency property, Regency and APCo contend (and this contention formed the basis of the trial court's ruling) that they are relieved from the application of any standard of reasonableness in their use of the easement. M & M, on the other hand, conceding Regency's right to use the 50-foot strip as a means of ingress and egress across the leased property to and from the Regency Apartments, contends that Regency must look to its deed for the nature and extent of the easement granted by Davis across his property, of which M & M, under the terms of the lease, has the exclusive right of possession subject only to the easement granted by Davis in his deed to Regency. See Magna, Inc. v. Catranis, 512 So.2d 912 594 (Ala.1987), (holding, under facts where the nature and extent of the easement differ materially from those of the easement in the instant case, that the dominant estate had the right of exclusive use of the easement). These opposing positions can be better understood and appreciated in the factual context of Regency's actual use of the 50-foot-wide strip of property. Over M & M's protest, Regency constructed a 200-foot-long and 24-foot-wide paved road, with lateral concrete curbing, along the western half of the east 50 feet of M & M's leased property. This particular placement of the 24-foot roadway on the 50-foot-wide easement strip, along with the 7-inch-high concrete curb that borders the road's west side, effectively prevents M & M from using the property for any purpose. According to Regency's own testimony, there was no necessity, either technically or economically, for placing the road and curb on the west side of the 50-foot-wide easement as opposed to placing it along the east side of the property; placing it on the east side would have given M & M parking spaces for its "fast food" customers. Before Regency's exclusive use of the easement, this entire 50-foot strip was used by M & M for parking. One of the Regency partners testified that the roadway and curb were purposefully placed as the most effective way of preventing M & M from interfering with Regency's use of the easement. If we assume, as argued by the parties and as accepted by the trial court, that the easement language in the lease ("may be improved by the lessor in any manner he sees fit") is broader and authorizes greater discretionary use of this easement by the dominant estate than the more restrictive language of Regency's deed, this greater authority inures not to Regency but to the lessor, Davis. Under ordinary circumstances, there is no difference between a right of easement by way of a reservation and such right by way of a grant. To so contend in the instant context, however, loses sight of the material distinction between a reservation of an easement in a lease and an outright grant of an easement in a conveyance of the fee. If the reservation of the right of easement is broader than the subsequent grant of the right of easement with respect to the same property, the difference in the nature and breadth of the two respective rights is retained in the grantor. Here, whatever right of easement Davis, as owner of the fee, reserved in his lease, he still retains subject only to the right of easement granted in his conveyance of the fee in the Regency property. If there is a difference in the right reserved in the lease and the right granted in the deed, that difference inheres in Davis, not in Regency.[2] Indeed, all of the cases cited by the appellees in support of their reliance on the easement reservation language in the lease are inapposite because they deal with conveyances of the fee and not with leases. Even if we assume that the "right to improve" creates an appurtenance, as contended by Regency, the question remains: Did Regency acquire that right as an appurtenance to its property or is it a right retained by the lessor? Again, the distinction between a lessor and a grantor, in the instant context, answers the question in favor of the lessor. Thompson On Real Property describes the nature of an easement appurtenant: "Section 322. The nature of an easement appurtenant. An appurtenant easement is incapable of existence separate and apart from the particular land to which it is annexed. So, it cannot be conveyed by the party entitled to it separate from the land to which it is appurtenant. It can be conveyed only by a conveyance of such land. It inheres in the 595 land and cannot exist separate from it; nor can it be converted into an easement in gross." The right to improve the easement over M & M's leased property does not inhere in the Regency property, for that right is fully capable of being exercised independently of the Regency property. This does not mean that Regency, through its own easement grant, is not authorized to make such reasonable usage of the easement as comports with its ingress and egress purpose, including the construction of a modern roadway, bordered by lateral curbing, to protect against unauthorized and unreasonable intrusion. Indeed, improvements of this nature fall within the express purpose of the right of easement contained in its deed. But, here again, this right must be reasonably exercised in such a manner as will accommodate M & M's right of possession under its lease. Duke v. Pine Crest Homes, Inc., 358 So.2d 148 (1978). The applicable principles of law were laid down in the early case of Long v. Gill, 80 Ala. 408 (1885): "The terms of the grant, considered in reference to the locality and situation of the premises, do not operate to pass a right to the unobstructed use of the entire lot describedsuch as a right of way over a street or a strip of land appropriated to the purposes of a streetbut to the convenient use of so much as may be necessary to the purposes intended by the grant.... "... From the circumstances and the situation of the premises, evidently the intention was to provide a mode of ingress and egress for the purpose of receiving and delivering goods and other articles of use at the rear end of the store. The easement extends to the convenient use of the land for vehicles or conveyances, such as may be reasonably required. The complainant therefore is entitled to a way reasonably convenient for the employment of conveyances, such as are usually and generally employed in transporting goods to and from stores. But the owner of the soil is entitled to all the rights, benefits, and privileges of ownership, consistent with and subject to such easement.... "... As the City Court adjudged the rights of complainant in unison with these views, the case is reduced to a question of factwhether the obstruction abridges or impedes the reasonable and convenient use of the right of way for the purposes intended, and for which it was granted?" (Emphasis supplied.) Long v. Gill, supra, 80 Ala. at 409-10. Using Long as its authority, A.L.R.2d summarizes the rule: "A grant or reservation of a right of way `over' a particular area, strip, or parcel of ground is not ordinarily to be construed as providing a way as broad as the ground referred to." 28 A.L.R.2d 265, § 7. Regency was granted a permanent easement with the right of ingress and egress and travel over and upon a strip of land 50 feet in width and 200 feet in length. Regency exercised its right by constructing two 7-inch-high concrete curbs 200 feet long and then paved the 24-foot-wide area between the curbs as a roadway. Unquestionably, it had the right, under its grant, to do this. Having made its decision, however, that only approximately one-half of the 50-foot strip was needed to accomplish the purposes for which the easement was granted, did it also have the unilateral and arbitrary right to locate the roadway and curbing in such a manner as to preclude M & M's reasonable use of the remaining one-half of the 50-foot strip? Because of Regency's own testimony that the sole reason for its placement of the roadway was to insure against M & M's interference with Regency's use of the easement, we are almost persuaded that the question can be answered in M & M's favor as a matter of law. We decline to so hold, however, because, notwithstanding the weight and quality of this evidence against Regency's position, there may be other evidence that creates a triable issue of fact with respect to the application of the "reasonableness" standard. Therefore, as to Regency, the judgment is reversed and the cause is remanded for further proceedings. *596 For the trial court's guidance in fixing an easement by judicial decree, see Looney v. Blackwood, 224 Ala. 342, 140 So. 400 (1932). We turn now to the propriety of the summary judgment in favor of APCo. It is settled law that the right of easement carries with it the right of a utility company to construct and maintain its facilities upon and over the property within the confines of the easement, unless the exercise of this right is so arbitrary as to unnecessarily and unreasonably interfere with the owner's right of reasonable use of his own property. See Alabama Power Co. v. Taunton, 465 So.2d 1105 (Ala.1984). Applying this rule of reason, we find that M & M's claim that APCo violated its right of easement by installing underground electrical cables to service the Regency apartments and its claim that APCo acted arbitrarily in locating and constructing a twin-pole electrical transformer bank on the easement are unsupported by the law and the evidence. Therefore, as to APCo, the judgment is affirmed. We note, however, that our affirmance of the judgment in favor of APCo does not preclude the trial court, either on its own motion or at the instance of either of the remaining parties, from bringing APCo back into the case as a party if the relocation of the APCo facilities is essential to the appropriate adjustment of the equities among the parties. We are constrained to conclude with an additional observation: We do not perceive how the issue to be resolved on remand of this cause can be adjudicated without necessarily affecting the interest of Gordon Davis, the owner of the leased premises. Indeed, his interest in preserving whatever rights were reserved in the easement language of the lease of the M & M property and not granted in the easement language of the deed to the Regency property, if any, is a substantial interest that should not be adjudicated in a proceeding to which he is not a party. Therefore, the trial court would be well advised to invoke Rule 19, A.R.Civ.P., and treat Gordon Davis as an indispensable party, to be aligned as a party plaintiff or as a party defendant according to the position stated in his answer. AS TO ALABAMA POWER COMPANY, AFFIRMED. AS TO REGENCY OAKS APARTMENTS, REVERSED AND REMANDED. TORBERT, C.J., and SHORES, ADAMS and STEAGALL, JJ., concur. NOTES [1] Although M & M and Regency are successors-in-interest to prior transferees, for the sake of convenience, they are referred to herein, when applicable, as "lessee" and "grantee." [2] We emphasize that we are not to be understood as holding that the distinction between the easement language of the lease and the easement language of the deed is a material difference. Whether the "right to improve" would have been impliedly conveyed by the inclusion of the word "appurtenance" in the deed from Davis to Regency so as to create the right in Regency to arbitrarily use the property to the total exclusion of M & M, is a question we need not decide here.	{ "pile_set_name": "FreeLaw" }
17-641 Wang v. Whitaker BIA Poczter, IJ A206 577 637 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 17th day of December, two thousand eighteen. PRESENT: GUIDO CALABRESI, PETER W. HALL, DEBRA ANN LIVINGSTON, Circuit Judges. _____________________________________ YAO WANG, Petitioner, v. 17-641 NAC MATTHEW G. WHITAKER, ACTING UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Adedayo O. Idowu, New York, NY. FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Mary Jane Candaux, Assistant Director; Remi da Rocha-Afodu, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED. Petitioner Yao Wang, a native and citizen of the People’s Republic of China, seeks review of a February 9, 2017, decision of the BIA affirming a June 16, 2016, decision of an Immigration Judge (“IJ”) denying asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Yao Wang, No. A206 577 637 (B.I.A. Feb. 9, 2017), aff’g No. A206 577 637 (Immig. Ct. N.Y. City Jun. 16, 2015). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We have reviewed both the IJ’s and the BIA’s opinions “for the sake of completeness.” Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). Absent past persecution, an applicant, like Wang, may establish eligibility for asylum by demonstrating a well- founded fear of future persecution, 8 C.F.R. § 1208.13(b)(2), which must be both subjectively credible and objectively 2 reasonable, Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). To establish a well-founded fear, an applicant must show either a reasonable possibility that she would be singled out for persecution or that the country of removal has a pattern or practice of persecuting individuals similarly situated to her. 8 C.F.R. § 1208.13(b)(2)(iii). “[I]n order to establish eligibility for relief based exclusively on activities undertaken after h[er] arrival in the United States, [Wang] must make some showing that authorities . . . are (1) aware of h[er] activities or (2) likely to become aware of h[er] activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). The agency did not err in finding that Wang failed to establish a well-founded fear of being singled out for persecution on account of her religion. First, Wang did not allege that Chinese officials are aware of her conversion to Mormonism in the United States or her current religious practice. She conceded that she attended underground Christian church services twice in China but was never harmed or persecuted for those activities. Although Wang testified that while in the United States, she spread the gospel over the phone with her friends and relatives in China, none of them, including her friend Zi Jia who attends church in China, 3 have had problems with the Chinese government. See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding future fear diminished when similarly situated individuals are able to live unharmed in asylum applicant’s native country). Second, as to whether Chinese officials are likely to discover her practice, Wang testified that she would attend an underground church, and continue to preach the gospel and distribute religious materials to relatives, friends, and colleagues. Given this limited testimony, the dearth of evidence in the record that Mormons are treated any differently than other Christian denominations, and record evidence that there are tens of millions of Christians in China (many of whom practice in unregistered churches), Wang did not demonstrate that Chinese officials are likely to discover her practice as required to state an objectively reasonable well-founded fear of persecution. See Hongsheng Leng, 528 F.3d at 142-43; Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (absent “solid support in the record,” a petitioner’s fear is not objectively reasonable and is “speculative at best”). For these same reasons, the agency also did not err in determining that Wang failed to establish a pattern or 4 practice of persecution of similarly situated individuals. The country conditions evidence in the record established that tens of millions of individuals practice in unregistered churches in China, and that in some areas such practice is tolerated without interference. Therefore, Wang failed to demonstrate “systemic or pervasive” persecution of similarly situated Mormons or Christians sufficient to demonstrate a pattern or practice of persecution in China. In re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005); Santoso v. Holder, 580 F.3d 110, 112 & n.1 (2d Cir. 2009); Jian Hui Shao v. Mukasey, 546 F.3d 138, 165-66, 174 (2d Cir. 2008) (finding that the BIA did not err in requiring localized evidence of persecution when the record reflected wide variances in how population control policies are understood and enforced throughout China). Wang’s remaining arguments fail. The IJ did not question the sincerity of Wang’s religious beliefs but instead found that Wang’s testimony as to her future practice was unspecific and speculative, and thus insufficient to satisfy the objective standard for showing a reasonable possibility of persecution. See Jian Xing Huang, 421 F.3d at 129. The IJ also sufficiently considered the record. The IJ expressly stated that she had considered the full record and her 5 decision addresses much of Wang’s evidence. See Jian Hui Shao, 546 F.3d at 169 (noting that the BIA need not “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner” (citations omitted)). Because the agency reasonably found that Wang failed to demonstrate a well-founded fear of persecution as required for asylum, it did not err in also denying withholding of removal and CAT relief, which require a greater likelihood of harm. See Lecaj v. Holder, 616 F.3d 111, 119 (2d Cir. 2010). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 6	{ "pile_set_name": "FreeLaw" }
485 F.2d 680 National Tape Corporation, In the Matter of 73-1029 UNITED STATES COURT OF APPEALS Third Circuit 9/20/73 1 D.N.J. AFFIRMED	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED ORDER Not to be cited per Circuit Rule 53 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted April 26, 2005* Decided April 29, 2005 Before Hon., JOHN L. COFFEY, Circuit Judge Hon. TERENCE T. EVANS, Circuit Judge Hon. DIANE S. SYKES, Circuit Judge No. 04-1765 LING MEI HUANG, Petition for Review of an Order of the Petitioner, Board of Immigration Appeals v. No. A77 353 495 ALBERTO GONZALES, United States Attorney General, Respondent. ORDER Ling Mei Huang, a native of China, petitions for review of the Board of Immigration Appeals decision denying her motion to reopen her removal proceedings to adjust her status based on her marriage to a United States citizen. The BIA denied her motion and we affirm. In February 2001, Huang entered the United States at Los Angeles International Airport. In her initial interview at the airport, she claimed that her traveling companion was her boyfriend, that she was single, and that she obtained * After examining the briefs and record, we conclude that oral argument is unnecessary. Accordingly, this appeal is submitted on the briefs and record. See Fed. R. App. P. 34(a)(2). No. 04-1765 Page 2 her visa from a United States embassy official. In fact her companion was a “snakehead,” a paid smuggler, whom she met only hours before departing China, and he provided her fraudulent travel documents. Huang did not request asylum during the initial interview, representing that she had not been harmed in China, and did not fear returning. Only later did she file a formal application for asylum, withholding of removal, and protection under the Convention Against Torture, claiming that she was persecuted in China when she was forced to abort her child, prohibited from getting married, and forced to leave her employment. She also claimed fear of persecution if she returned to China because the Chinese government would use her to “get to” her fiancé. In a hearing in October 2001, Huang testified that she was forced to have an abortion when in the course of a hospital visit, Chinese doctors discovered she was two months pregnant. Officials told her that the reason for the abortion was that she was unmarried, and that her fiancé was under warrant as a Falun Gong organizer. Soon after the abortion, she was fired from her job because the government made frequent disruptive visits to her workplace to inquire about her fiancé, violating company rules and damaging the company’s reputation. When she was unable to find other work, she paid a smuggler $8,000 to bring her to the United States. The IJ denied Huang’s application on grounds that her testimony about forced abortion was incredible. In reaching this conclusion, the court pointed out that the abortion certificate Huang submitted was likely fraudulent because, according to the State Department’s Profile for China, the Chinese government issues an abortion certificate only for voluntary abortions. The IJ also concluded that Huang failed to establish that she was likely to suffer persecution if returned to China because she failed to present evidence that she was likely to be singled out for persecution on the basis of her fiancé’s affiliation with the Falun Gong movement. The BIA affirmed without opinion. While the BIA’s decision was pending, however, Huang had married a United States citizen and on this basis filed before the Board a “Motion to Reconsider,” seeking an adjustment of status. In support of her motion she attached 1) a copy of a “Petition for Alien Relative;” 2) a “Petition for Adjustment of Status;” 3) her husband’s birth certificate; 4) her own birth certificate; and 4) a copy of her employment authorization application and work permit. The BIA denied the motion because there was “insufficient supporting documentation to establish the bona fides of the marriage,” as required by 8 C.F.R. § 125.1(c)(9). With the aid of a different attorney, Huang subsequently filed another motion to reopen claiming that her motion now complied with the requirements of 8 C.F.R. § 125.1(c)(9) and pointing out that her previous counsel admitted to the Board that No. 04-1765 Page 3 his failure to sufficiently support the first motion was due to his ineffective assistance. With the second motion, Huang submitted letters from friends and family attesting to the couple’s honest affection for each other, family photographs, documentation of joint insurance and bank accounts, and receipts from joint utilities and accommodations. The BIA denied this motion, citing 8 C.F.R. § 1003.2(c)(2), which provides that immigrants in removal proceedings are limited to one motion to reopen. In her brief on appeal, Huang contends generally that she presented sufficient documentation in her first motion to reopen to establish “prima facie” evidence that her marriage was bona fide. According to Huang, the “normal procedure for the Bureau of Citizenship and Immigration Services to determine bona fides of the marriage is to conduct an interview and/or a field investigation.” We review the denial of a motion to reopen for abuse of discretion and will uphold the denial “unless it was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination.” Awad v. Ashcroft, 328 F.3d 336, 341 (7th Cir. 2003). Generally, an alien may not have her status adjusted based on marriage while removal proceedings are pending. 8 U.S.C. 1255(e)(1). The regulations carve out an exception, however, for a petitioner in removal proceedings who establishes by clear and convincing evidence that she has entered into a legal marriage in good faith, and not to procure admission as an immigrant. 8 C.F.R. § 245.1(c)(9); 8 C.F.R. § 204.2(a)(6)(iii)(A), (B)(1-6); In re Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002); see also Malhi v. I.N.S., 336 F.3d 989, 993-994 (9th Cir. 2003). Section 204.2(a)(6)(iii)(B) suggests several types of evidence that may satisfy the petitioner’s burden to demonstrate her motivation for marriage: 1) Documentation showing joint ownership of property; 2) Lease showing joint tenancy of a common residence; 3) Documentation showing commingling of financial resources; 4) Birth certificate(s) of child(ren) born to the petitioner and beneficiary 5) Affidavits of third parties having knowledge of the bona fides of the marital relationship ( . . . Each affidavit must contain the full name and address, date and place of birth of the person making the affidavit and his or her relationship to the spouses, if any. The affidavit must contain complete information and details explaining how the person acquired his or her knowledge of the marriage. Affidavits should be supported, if possible, by one or more types of documentary evidence listed in this paragraph); or 6) Any other documentation which is relevant to establish that the marriage was not entered into in order to evade the immigration laws of the United States. No. 04-1765 Page 4 Huang failed to submit any such relevant evidence showing that she married in good faith. Because Huang presented no evidence of a bona fide marriage in her first motion to reopen, we cannot say that the BIA abused its discretion in denying it. Nor can we say that the Board abused its discretion to abide by the limitations on filing successive motions to reopen. See 8 C.F.R. § 1003.2(c)(2); Simition v. Ashcroft, 393 F.3d 733, 736-37 (7th Cir. 2004); Joshi v. Ashcroft, 389 F.3d 732, 734- 35 (7th Cir. 2004). We affirm the BIA’s denial of Huang’s second motion to reopen for adjustment of status based on marriage and therefore DENY the petition for review.	{ "pile_set_name": "FreeLaw" }
743 N.W.2d 8 (2008) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerry Sharrob HAMPTON, Defendant-Appellant. Docket No. 134882. COA No. 268812. Supreme Court of Michigan. January 8, 2008. On order of the Court, the application for leave to appeal the August 2, 2007 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The motion to remand is DENIED.	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 04-2000 ___________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Dale M. Willis, * * Defendant - Appellant. * ___________ Submitted: October 13, 2005 Filed: January 9, 2006 ___________ Before LOKEN, Chief Judge, LAY and BENTON, Circuit Judges. ___________ LOKEN, Chief Judge. Dale Willis pleaded guilty to conspiring to manufacture and distribute crack cocaine in violation of 21 U.S.C. §§ 841 and 846. After an April 2004 sentencing hearing at which the government presented the testimony of five witnesses, the district court1 found that Willis was responsible for the manufacture and distribution of more than 1.5 kilograms of crack cocaine. The court also imposed a four-level enhancement under U.S.S.G. § 3B1.1(a) because Willis was an organizer or leader of 1 The Honorable Nanette K. Laughrey, United States District Judge for the Western District of Missouri. the criminal enterprise. The court sentenced him to 405 months in prison. Willis appeals, arguing that the court erred in calculating drug quantity and in imposing the organizer/leader enhancement. He further argues that these enhancements violated his Sixth Amendment rights, an issue now governed by the Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005). We affirm. At the sentencing hearing, Detective Don Stanze of the Kansas City Police Department testified that a reliable informer, Andre Jones, told the police that Jerrill Green was selling crack cocaine supplied by Dale Willis. Several undercover purchases from Green followed. During the third purchase, Green took the undercover officer to “his boy’s house,” 2602 Norton, to get the two ounces of crack being sold. Green went inside the house. Willis arrived and entered a short time later. Green then left the house and delivered crack to the undercover buyer. Based on this information, the police obtained a warrant and searched 2602 Norton, finding firearms, marijuana, 370 grams of crack cocaine, more than one kilogram of powder cocaine, and everything needed to cook the powder cocaine into crack. Andre Jones testified that he bought substantial quantities of crack from Willis and his nephew, Robert White, at 2602 Norton. He bought from Darric Partee in their absence, but Willis and White controlled the house. Jerrill Green testified that Willis and White recruited him to “move some crack.” He purchased two to nine ounces of crack at 2602 Norton three or four times a week for thirteen months. Green testified that Willis and White were in charge and that Partee and Brent Jones worked for them. Davell Smalls testified that he saw four to five kilograms of crack at 2602 Norton and purchased up to an ounce daily for six weeks from Willis, White, and Partee. After hearing this testimony, the district court declined to impose a two-level enhancement for the firearms found at 2602 Norton. The court imposed a four-level enhancement for being an organizer and leader, finding that the conspiracy included at least five persons (Willis, White, Jones, Green, and Partee) and that “based upon -2- the evidence I have in front of me, Willis controlled White.” The court found that the relevant drug quantity was 1.5 kilograms or more of crack, a finding based on the 400 grams found during the warrant search plus 2000 grams, a conservative estimate of the crack purchased by Green from the conspirators. 1. Willis argues that the district court’s drug quantity finding was clearly erroneous because less than 500 grams of crack were seized during the warrant search or involved in the undercover purchases, and the self-serving testimony of cooperating conspirators Jones, Green, and Smalls was speculative and unreliable. Under Booker, we continue to review the district court’s application of the guidelines and continue to review findings of fact for clear error. See United States v. Mashek, 406 F.3d 1012, 1015-17 (8th Cir. 2005). Under clear error review, we may reverse “only if we have a definite and firm conviction that the District Court was mistaken.” United States v. Bahena, 223 F.3d 797, 802 (8th Cir. 2000), cert. denied, 531 U.S. 1181 (2001). Having carefully reviewed the sentencing record, and mindful that the district court’s credibility findings are virtually unassailable on appeal, we conclude that ample evidence supports the court’s finding that Willis conspired to manufacture and distribute more than 1.5 kilograms of crack. There was no clear error. 2. Willis next argues that the district court clearly erred in imposing the four- level organizer/leader enhancement because the testimony of Jones, Green, and Smalls established that Willis sold to them without controlling their resales. This enhancement is imposed if the defendant was an organizer or leader of a criminal enterprise that involved five or more participants. U.S.S.G. § 3B1.1(a). We broadly interpret the terms “organizer” and “leader,” and the defendant need organize or lead only one other participant. See Bahena, 223 F.3d at 804; United States v. McMullen, 86 F.3d 135, 138 (8th Cir. 1996). In a drug conspiracy case, “a defendant must do more than sell for resale” to be found an organizer or leader. United States v. Miller, 91 F.3d 1160, 1164 (8th Cir. 1996). However, it is enough if the defendant assumed organizing or leadership functions such as recruiting others, determining the price or -3- location of sales, and so forth. See United States v. Jasper, 169 F.3d 1109, 1110 (8th Cir. 1999). Here, Green testified that Willis recruited him to sell crack and that Partee and Brent Jones sold crack for Willis. Green, Smalls, and Andre Jones all testified that Willis bought powder cocaine and cooked it into crack at 2602 Norton for resale on the street, and that everyone at 2602 Norton answered to Willis and White. Based upon this evidence, the district court’s finding that Willis was an organizer or leader of a criminal enterprise involving five or more participants was not clearly erroneous. 3. Finally, Willis argues for the first time on appeal that the district court violated his Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296 (2004), by imposing sentencing enhancements neither admitted by Willis nor found by a jury. This issue is governed by the Supreme Court’s subsequent decision in Booker. As Willis raised no Sixth Amendment issue in the district court, we review this contention for plain error. See United States v. Pirani, 406 F.3d 543, 549-50 (8th Cir.) (en banc), cert. denied, 126 S. Ct. 266 (2005). To establish plain error, Willis “must show (1) an error, (2) that is plain, that not only (3) affected his substantial rights, but also (4) seriously affected the fairness, integrity, or public reputation of judicial proceedings.” United States v. Gomez, 419 F.3d 835, 838 (8th Cir.), cert. denied, 126 S. Ct. 597 (2005) (quotations omitted). Because the district court treated the guidelines as mandatory, Willis satisfies the first two criteria. To satisfy the third, he must show a “reasonable probability” that the district court would have imposed a more lenient sentence under the now advisory guidelines. Pirani, 406 F.3d at 553. We conclude that Willis has not made this showing. At sentencing, after making a drug quantity it described as “very conservative,” the district court denied Willis’s motion for a downward departure and sentenced him to 405 months in prison, the top of his guidelines range of 324 to 405 months. The court explained that “there’s no question in my mind Mr. Willis is a dangerous person in our community and has caused a lot of suffering.” The court noted that Willis was an uncle who had brought young people into the drug trade, -4- which is “corrosive to the community.” He had “kept people out front to do his dirty work to try to prevent being held responsible himself.” For these reasons, the court added, “there could have been a basis for an upward departure in this case.” These statements provide no reasonable probability that the district court would have sentenced Willis more leniently under an advisory guidelines regime. The judgment of the district court is affirmed. ______________________________ -5-	{ "pile_set_name": "FreeLaw" }
21 N.J. 199 (1956) 121 A.2d 527 DANIEL J. MORIARTY, ET AL., PLAINTIFF-APPELLANTS, v. JACK POZNER, SAM POZNER, BOARD OF ADJUSTMENT OF THE TOWNSHIP OF NORTH BERGEN, AND THE BOARD OF COMMISSIONERS OF THE TOWNSHIP OF NORTH BERGEN, DEFENDANTS-RESPONDENTS. The Supreme Court of New Jersey. Argued February 13, 1956. Decided March 21, 1956. 203 Mr. George Heftler argued the cause for appellants (Mr. Jacob Green and Mr. S. David Harrison on the brief; Messrs. Platoff, Platoff & Heftler, attorneys). Mr. Joseph C. Glavin argued the cause for the respondents Jack Pozner and Sam Pozner (Mr. Robert L. Garibaldi on the brief; Messrs. Burke, Sheridan & Hourigan, attorneys). Mr. Nicholas S. Schloeder argued the cause for the respondent Township of Bergen. The opinion of the court was delivered by HEHER, J. At issue here is the legal sufficiency of a variance permitting the construction of a "shopping center, containing retail stores, and the balance of the property to be paved and used for off-street parking for the patrons" of the center, on the lands in the Township of North Bergen zoned for residence use, known as Nos. 3101-3149 Hudson Boulevard, recommended to the governing body by the local board of adjustment by a resolution adopted December 28, 1954, and approved by a resolution of the governing body on January 5, 1955, all in the purported exercise of the power granted by N.J.S.A. 40:55-39(d). North Bergen is an urban community. The subject property is a tract of 17 acres, to the west of the Hudson County Boulevard. A strip 100 feet deep running 370 feet along the Boulevard, constituting part of the easterly boundary of the property, is zoned for business; the remainder is classified as a "Second Residential Zone or District" closed to "business," "commercial enterprises," "manufacturing," "industrial enterprises," "nuisances per se," and "garages of any kind * * upon any vacant lot." Both sides of the Boulevard are zoned for general business to a depth of 100 204 feet, and so used. The Boulevard on either side throughout the municipality is generally strip-zoned for business, to a uniform depth of 100 feet. This has been the general local legislative rule. Under the zoning ordinance, adopted in 1934 and amended in 1949 and 1951, the particular lands may be used for dwellings of any type or size and apartment use as well; the tract is suitable in size and otherwise for multi-story apartment units, with sufficient area for landscaping and parking. The allowance of the variance would extend the business use permissible on the Boulevard frontage to the whole of an area that has been used for commercial recreation purposes since 1898, popularly known as "Columbia Park," a nonconforming use. The commercial and business uses nearby are either confined to a business zone or constitute nonconforming uses protected by the statute. The locus is bounded on the north by a home for the aged and vacant lands forming a part of a commercial enterprise known as "Scheutzen Park," a carnival, picnic and bowling grounds; the western boundary is an "undeveloped" "paper street" known as Grand Avenue; and the southerly end abuts a street which in all seeming provides access to several highways, although respondents suggest that the want of direct approach to the Lincoln Tunnel depressed highway on the south is a factor of major importance. But the problem, if there is one, is certainly not irremediable. The immediate community has not changed in character or use since the adoption of the zoning ordinance, save for diminution of the nonconforming Columbia Park use itself. The area immediately to the south and west is in the main undeveloped, but is zoned for residences; there is a first-class apartment house development a few blocks to the south, on the westerly side of the Boulevard; and there is a public housing development on the same side of the Boulevard, a short distance to the north, in Union City. The topography of the locus is common to lands in the area on the west side of the Boulevard. Such slope as there is on the particular tract will not interfere with the erection and use of apartment dwellings. The contention contra is, in 205 brief, that the "only means of ingress and egress to the property is through or over the Hudson Boulevard business frontage; that the westerly approaches were cut off from any practical utility no matter what use was made of the property," and "to run an access road over the business frontage to service a possible rear residential development would not be conducive to good planning." Such is the view of the planning expert called in support of the proposed variance. He said also that neither North Bergen nor Union City zoning could be termed "part of a comprehensive plan"; the zoning ordinance adopted in 1934, he continued, "was not based upon a comprehensive plan as defined in the statute." It is urged that the "character of the neighborhood in general is business or commercial"; and the "only similarity between Columbia Park and areas north and south along the Boulevard, insofar as the possibilities of residential development of the Park are concerned, is that all property slopes off in the west or rear, but additionally Columbia Park was not only deprived of access from the west by the topography, but also was cut off from access by a highway on the south and business on the north," and "All other properties in the area had access to other streets running perpendicular to or parallel with the Boulevard." Upon the first submission of the issue, the Law Division of the Superior Court remanded the cause for "further hearing" and a specification of the "reasons for the granting of the variance." The rehearing was had; and the variance was again recommended by the board of adjustment, on these grounds: (1) It is "not feasible or practicable to subdivide the area for residential purposes" because of the "shape" of the "premises, being only 370 feet in width" on the Boulevard, "while it is 1022 feet on the rear and irregular in depth ranging for (sic) 628 feet to 872 feet," and the "only means of ingress and egress" are "over or through the Boulevard frontage, which is zoned for business to a depth of 100 feet"; (2) the "immediate neighborhood" as well as the premises in question "are presently devoted to business and commercial 206 enterprises and are not developed to any extent for residential purposes"; (3) the surroundings and the limited access "create special conditions peculiar to the lot, imposing a burden on the owners if the present restriction is enforced"; (4) a "great portion of the property * * will be paved and used for off-street parking, and consequently the erection of the shopping center will not materially change the existing traffic situation"; (5) when the "present zoning ordinance was passed, shopping centers had not yet come into existence and, therefore, no provision was made for them," and under the "present zoning ordinance" "there is no area in which a planned shopping center can be constructed because of the fact that the Township is `strip zoned' for business to a depth of only 100 feet, except in one or two isolated areas"; (6) an inspection of the locus "reveals that the location of the lot, its appearance and the atmosphere created by the surrounding uses made of the land, fit the pattern of the area for the development of the tract in question as a shopping center with off-street parking"; (7) the plans submitted to the board provide for the "erection of a brick, Colonial-type building, beautiful in design," with a "shrubbed" area, "thus enhancing the appearance of the neighborhood in general," and the "brightly-lighted used car lot presently on the Boulevard frontage of the property" will be eliminated, and the "public welfare will be served beneficially" by the demolition of the "existing unsightly structure" which because of age and "lack of maintenance over many years, as well as its use for large public gatherings, has made it a source of public concern for some time"; and (8) the variant use will not "detrimentally" affect the "value of the properties in the scattered residential area"; the "maintenance of the open area for off-street parking will promote the general welfare of the community by lessening congestion on the streets and providing the maximum of light and air"; the "plan for the development of the property in question is advisable as the most economical use of the property in the interest of the Township of North Bergen and in keeping with the intent and spirit of the zoning ordinance"; 207 the "erection of the planned shopping center with some 33 or 34 tenants will produce substantial ratables for the Township, both real and personal, and will impose no financial burden for the erection of additional schools which would result if the premises were developed for residential purposes." In conclusion, the board found, "as a matter of fact, that the relief sought is in the public interest and can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance." The governing body "approved" the "recommendation" "for the reasons" given by the board of adjustment. The Law Division of the Superior Court sustained the variance; and the Appellate Division affirmed the judgment, 36 N.J. Super. 586 (App. Div. 1955), generally on the ground that if "substantial evidence is adduced tending to show that the variance will subserve one or more of the zoning objects specified by the Legislature for municipal zoning legislation in R.S. 40:55-32 and that the relief can be granted without substantial detriment to the public good or substantial impairment of the intent and plan of the zone plan and ordinance, and specific findings in support of both of these prerequisites are made by the board, the variance will stand," and here "Some of the findings of the board were in affirmative relationship with such zoning objectives and considerations as lessening street congestion, the character of the area, the peculiar suitability of the parcel for the use applied for, conservation of land values, the most appropriate use of the land and the general welfare of the community." And it was said that the "existence of some degree of hardship to the owner in the strict application of the ordinance to the property may also be given consideration by the local board in such cases and the hardship need not be of the kind or to the extent specified by the statute for relief under paragraph (c) of N.J.S.A. 40:55-39," but that "mere hardship, * * unaccompanied by the promotion of one 208 or more of the zoning objectives stated in R.S. 40:55-32" would not "suffice in a paragraph (d) case." It was found that there was "evidence of hardship to the owner in strict enforcement of the ordinance"; and that "Other findings contributed to the conclusion of the board that there would be no substantial impairment of the zone plan or detriment to the public good"; but no opinion was expressed "as to the legal adequacy of the eighth finding, that relating to considerations as to tax ratables and municipal financial burdens." The holding was that the other findings "were legally apt and substantially supported by evidence," and "The insufficiency of one finding will not impair the efficacy of others which are adequate." But the judicial authority cannot say that the latter considerations, one or both, were not in themselves decisive. Upon what reasoning can it be hypothesized that such were not constituent elements of the determination? Would the recommendation of a variance have been made were these factors ruled out as alien to the statutory policy and wholly inadmissible as a standard or rule of action, and the board had been so advised? The formal findings of the board render it quite certain that these were deemed reasons of prime import in resolving on the course of action taken. And they were utterly illusory. Mr. Sarubbi, a member and the secretary of the board of adjustment, testified: "That has been the trouble with all municipalities. They have allowed housing and everything else to go up. Now, they realize that the school proposition was really knocking their brains out. That is one reason when this thing came before our board the merits of the case were terrific, really terrific. That is one of the main reasons we went along with this proposition." It is not per se a sufficient reason for a variation of the general rule that the nonconforming use would be more profitable to the landowner. The converse course would subvert the principle of zoning. The statute, R.S. 40:55-32, permits the exercise of zoning power for the conservation, not the enhancement, of the "value of property." Brandon 209 v. Montclair, 124 N.J.L. 135 (Sup. Ct. 1940), affirmed 125 N.J.L. 367 (E. & A. 1940); Berdan v. City of Paterson, 1 N.J. 199 (1948); Beirn v. Morris, 14 N.J. 529 (1954). And the intrusion of a forbidden business use in a residence zone, by means of a variance, to increase the tax ratables, real or personal, is equally inadmissible. Such a course would contravene the constitutional and statutory principle of zoning by districts in accordance with the character of the lands and structures and their peculiar suitability for particular uses, and uniformity of use within the division. It would make for "spot zoning" and the disintegration of zone classification. Brandon v. Montclair, supra; Collins v. Board of Adjustment of Margate City, 3 N.J. 200 (1949); Schmidt v. Board of Adjustment of Newark, 9 N.J. 405 (1952); Potts v. Board of Adjustment of Princeton, 133 N.J.L. 230 (Sup. Ct. 1945). It is basic to zoning policy that all property in like circumstances be treated alike. The use restraints must needs be general and uniform in the particular district. Beirn v. Morris, cited supra. This, in virtue of the legislative grant itself, quite apart from constitutional precept for the fulfillment of essential civil liberties. The zoning power, as in the case of all other exertions of the police function, is controlled by the rule of reason; capricious action is forbidden. There cannot be arbitrary deviation from the general rule of the enabling statute or the ordinance. Katobimar Realty Company v. Webster, 20 N.J. 114 (1956). And, a fortiori, it would be a palpable misuse of the board's administrative function to provide for a business use of this tract, zoned for residences by the local legislative authority, in order to avoid the cost of school facilities and administration were it devoted to the ordained use. Nor could the board, by means of a variance, supply the omission from the ordinance of provision for "shopping centers," a use that had not come into vogue when the ordinance came into being, so it is said. Use classification is a legislative province; and the board has no legislative power whatever. Brandon v. Montclair, supra; Lynch v. Hillsdale, 136 N.J.L. 129 (Sup. Ct. 1947), affirmed 137 N.J.L. 280 (E. & A. 210 1948); Visco v. Plainfield, 136 N.J.L. 659 (Sup. Ct. 1948). See also Flynn v. Zoning Board of Review, 77 R.I. 118, 73 A.2d 808 (Sup. Ct. 1950). In the board's view the "exception" is confounded with the "variance." An "exception" concerns the legislative function. It is allowable to serve the general good and welfare rather than individual interests merely; but the conditions for such special use must be found in the local legislative act and may not be varied. Schmidt v. Board of Adjustment of Newark, supra; Stone v. Cray, 89 N.H. 483, 200 A. 517 (Sup. Ct. 1938); Flynn v. Zoning Board of Review, supra. Exceptions involve the exercise of an original jurisdiction for the accommodation of zoning practice and public needs exceptional in nature, and thus reasonably to advance the essential common interest as an integral part of the zoning process to the same end. Such is the significance of subdivision (b) of R.S. 40:55-39, as amended by L. 1953, c. 288. The board is thereby empowered to hear and decide "requests for special exceptions" "in accordance with the provisions" of the local zoning ordinance. Subsection (d) provides for the "granting of a variance" to "allow a structure or use in a district restricted against such structure or use," in "particular cases and for special reasons." Subsection (c) authorizes a "variance" where the "strict application" of the general regulation "would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon the owner" of a "specific piece of property," provided that "no variance shall be granted under this paragraph to allow a structure or use in a district restricted against such structure or use." A "variance" presupposes the reasonableness of the zone regulation as a whole. General hardship is relievable only by a revision of the general rule of the ordinance or by the judicial process. Such is the nature of the statutory "variance" as distinguished from the "exception" provided for in subsection (b). A "variance" is a relaxation of the general rule of the ordinance to alleviate conditions peculiar 211 to a particular property, and thus to permit a use to which it is adapted and avoid an undue invasion of the right of private property by compelling conformance to an unsuitable permissible use, a burden upon the individual landowner that would be disproportionate to the common need. It has reference to a property uniquely circumstanced. This accommodation of public and private interests is in keeping with the statutory principle of use zoning by means of "general laws" and a "comprehensive plan." The disintegration of the established use districts is the price of deviation from the principle. Beirn v. Morris, supra; Dolan v. DeCapua, 16 N.J. 599 (1954); Visco v. Plainfield, supra. As Mr. Justice Burling lately said, subdivision (d) was not intended "to encompass what is known in zoning law as an `exception.' * * * The exception procedure is safeguarded by standards set forth in the ordinance." Ranney v. Istituto Pontificio Delle Maestre Filippini, 20 N.J. 189 (1956). See Yokley on Zoning Law and Practice, section 133; also Metzenbaum's Law of Zoning (2d ed.), 815, et seq., and the cases there collected. The remaining grounds assigned by the board for the action taken are equally untenable. The "shape" of the tract, its width of 370 feet on the Boulevard, its irregular depth, and the so-called limited access do not render its use for residences unfeasible or impracticable. We find no evidence to support the finding that the area may not be subdivided for "residential purposes." But certain it is that the land is usable for apartment dwellings. There is no substantial ground to believe that access comporting with the need will not be available should a residence use be made of the land. As stated, the area to the west of the business "strip" fronting the Boulevard is zoned for residence use as a matter of general policy; and multi-story apartment houses are operating in the neighborhood under somewhat similar conditions. Such would seem to be the highest and best use of the locus. As said by Mr. Justice Brennan, in a case where the "exceptional shape" of the plot was offered as a ground for a variance: "Mere irregularity in contour is not the test. The statute contemplates *212 proof that the property because of its shape cannot reasonably be put to the permitted use in the manner of properties generally in the district." Leimann v. Board of Adjustment of Cranford Township, 9 N.J. 336 (1952). And it was there also held that "difficulty of access to the rear of the property" is not to be deemed extraordinary and exceptional within the statutory intendment when the landowner has the means of correcting it. The commercial enterprises in the neighborhood are all in a business zone or constitute nonconforming uses which are not good cause for a variance. Beirn v. Morris, supra. As said, the general regulation itself is not assailed as an arbitrary or unreasonable exercise of local legislative power. It is the accepted view that zoning is designed "to preserve the true character of a neighborhood by excluding new uses and structures prejudicial to the restricted purposes of the area, and gradual elimination of such existing structures and uses." Yokley's Zoning Law and Practice (2d ed.), section 11. Plainly, the dominant considerations for the granting of the variance involved the exercise of the legislative power, wholly beyond the board's province; and, in respect of matters peculiar to the particular property, the action taken would work substantial impairment of the "intent and purpose of the zone plan and zoning ordinance," according to the test of Ward v. Scott, 11 N.J. 117 (1952); s.c. 16 N.J. 16 (1954), and so it is arbitrary and unreasonable. Here, the zone plan is embodied in the ordinance. See Professor Haar's treatise, In Accordance With a Comprehensive Plan, 68 Harvard L. Rev. 1154. But the grounding of the variance in matters purely legislative in itself invalidates the action taken. The judgment of the Appellate Division is reversed; and the cause is remanded with direction to vacate the variance. For reversal Chief Justice VANDERBILT, and Justices HEHER, BURLING and BRENNAN 4. For affirmance Justices OLIPHANT, WACHENFELD and JACOBS 3.	{ "pile_set_name": "FreeLaw" }
10 So.3d 638 (2009) HOWETT v. AMORE REVOCABLE TRUST AGREEMENT. No. 2D09-1156. District Court of Appeal of Florida, Second District. June 17, 2009. Decision without published opinion Appeal dismissed.	{ "pile_set_name": "FreeLaw" }
355 U.S. 601 (1958) SPEVACK v. STRAUSS ET AL. No. 641. Supreme Court of United States. Decided March 3, 1958. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. Carleton U. Edwards, II, Joseph Y. Houghton and Bernard Margolius for petitioner. Solicitor General Rankin, Assistant Attorney General Doub, E. Riley Casey and Roland A. Anderson for respondents. Briefs of amici curiae in support of the petition for a writ of certiorari were filed by Elisha Hanson, Arthur B. Hanson and Calvin H. Cobb, Jr. for the American Chemical Society, and Carlton S. Dargusch for the Engineers Joint Council. PER CURIAM. The petition for writ of certiorari is granted. The judgment of the Court of Appeals, and the orders of the Court of Appeals denying petitioner's motion for leave to amend the complaint and petition for rehearing, are vacated. The case is remanded to the Court of Appeals with instructions (1) to allow petitioner's proposed amendments to the complaint and (2) to determine, in light of the amended complaint, the issues raised by petitioner's appeal.	{ "pile_set_name": "FreeLaw" }
535 U.S. 974 ARNOLDv.TEXAS. No. 01-8026. Supreme Court of the United States. April 1, 2002. 1 Ct. App. Tex., 1st Dist. Certiorari denied.	{ "pile_set_name": "FreeLaw" }
144 B.R. 38 (1992) In re Harderison Edward MALLOY, Jr. Harderison Edward MALLOY, Jr., Plaintiff, v. UNITED STATES of America, et al., Defendants. Bankruptcy No. 91-26673-B, Adv. No. 92-2063-B. United States Bankruptcy Court, E.D. Virginia, Norfolk Division. August 26, 1992. 39 Carlene M. Isabella and John J. McNally, Weisberg and Stein, P.C., Norfolk, Va., for debtor. Daniel G. Bloor, Asst. Atty. Gen., Richmond, Va., for the Com. of Va., ex rel. State Educ. Assistance Authority. George M. Kelley, III, Asst. U.S. Atty., Norfolk, Va., for the U.S. Dept. of Health and Human Services. OPINION AND ORDER REGARDING DISCHARGEABILITY OF DEBT HAL J. BONNEY, Jr., Bankruptcy Judge. STATEMENT OF THE FACTS How difficult to probe into the inner being! In which we must decide if one is able. Should the debtor repay $90,000 in student loans or is it an undue expectation? We would rather not taste of this cup but must . . . and shall. Harderison Edward Malloy, Jr., debtor, is a nursing home activity assistant residing in Chesapeake, Virginia, who on November 25, 1991, filed a voluntary Chapter 7 petition in the United States Bankruptcy Court for the Eastern District of Virginia at Norfolk. Malloy is a 39 year old unmarried man with no children or financial dependents. However, Malloy presently finds himself indebted to two student loan entities for $90,000. Malloy incurred this large debt during his years in college and medical school when he was forced to borrow money to finance his education. As of the filing date of his bankruptcy petition, he was indebted to the Commonwealth of Virginia (State Education Assistance Authority) for Virginia Education Loan Authority (VELA) loans in the sum of $26,524.73. Interest accures on this debt at the rate of approximately $160 per month. Malloy was also indebted to the United States of America for Health Education Assistance Loans (hereinafter "HEAL") loans/notes in the sum of $62,759.22. The accrual of interest alone on this debt is approximately $485.70 per month. The United States of America (the Department of Health and Human Services) purchased the HEAL loans on April 7, 1988. Additionally, Malloy owed approximately $7,600 to the United States Department of Education. Interest accrues on this debt at the rate of approximately $25.00 per month. On November 6, 1991, the United States of America filed suit in the United States District Court for the Eastern District of Virginia, Norfolk Division, against Malloy seeking a judgment for the repayment of the HEAL loan indebtedness; however, bankruptcy ensued. Thereafter, on March 4, 1992, Malloy filed a complaint to determine dischargeability of debt under 11 U.S.C. § 523(a)(8)(A) or (B). Malloy, in his amended complaint, acknowledged that he is indebted to the United States Government, the Commonwealth of Virginia and the United States Department of Education. However, Malloy asserted that the student loan debts should be determined dischargeable pursuant to § 523(a)(8)(A) or (B) of the Bankruptcy Code based on undue hardship since he is presently unable and without any hope of a future ability to pay the interest, not to mention repayment of principal, accruing on the debt and also, in order for him to be afforded a fresh start in life. The United States Department of Education in its answer agreed that Malloy's indebtedness to it is dischargeable. Accordingly, by order of the Court dated June 11, 1992, Malloy's debt owed to the United States Department of Education in the approximate amount of $7,600 was ordered dischargeable. A trial on the merits was held on August 4, 1992, to determine the dischargeability of the debts Malloy owes to the United States Department of Health and Human Services and the Commonwealth of Virginia. The central issue before the Court is whether the debtor will suffer undue hardship if the indebtedness of the student loans is determined nondischargeable. 40 At trial the following facts were elicited in an effort to show undue hardship. In 1972, Malloy entered Luther Rice College. Soon thereafter Malloy withdrew from the College and entered George Mason University. Malloy also withdrew from George Mason for academic reasons. However, in 1974 Malloy graduated from Northern Virginia Community College with a two year associates degree in general sciences. The next year Malloy entered Virginia Commonwealth University (Richmond) and graduated in 1979 with a Bachelor of Sciences degree in biology. While at Virginia Commonwealth University, Malloy attained an overall grade point average of 2.79 and a grade point average in sciences of 2.40. Immediately after graduating from college, Malloy attended a summer program for prospective medical students at Eastern Virginia Medical School (hereinafter, "EVMS") and became employed as a microbiologist with the State of Virginia. In 1980 Malloy was admitted to EVMS as a medical student. While at EVMS, Malloy had been given 30 months to complete the 15 month basic science portion of the program. Upon completing the basic sciences portion, Malloy continued with his schooling, but eventually failed three out of four of his medical clerkships. In July of 1983 Malloy voluntarily withdrew from EVMS as a result of unsatisfactory progress in his required medical clerkships. During the period of September 1983 through May 1984, Malloy attended a program specifically designed for medical students with academic difficulties at the Medical College of Virginia. In September of 1984 Malloy was readmitted to EVMS on the condition that he successfully complete a 12 week medical clerkship. However, Malloy failed to successfully complete the course and was required to leave EVMS in December 1984. While at EVMS, Malloy had only successfully completed 15 out of the 36 months required in a three-year medical program. Two doctors from EVMS testified through depositions concerning Malloy's performance at medical school. Dr. Robert McCombs, Associate Dean for Student Affairs and Admissions, stated that Malloy's problems in medical school included "trouble passing exams and [that] he was performing marginally and at the failing rate and thus was required to repeat most of that first 16 months, which the second time around he did marginally but successfully." Dr. McCombs further stated that he was not aware of any physical, mental, psychological or psychiatric problems that may have affected Malloy's academic progress. Dr. McCombs explained, however, that there was concern about Malloy's "test-taking skills and his ability to work through clinical problems" which involved applying the basic science information that he had learned to patient problems. Dr. McCombs further stated that Malloy was a hard worker but that he was not able to function in the medical school environment. Dr. Richard Oliver, Assistant Dean for Student Affairs, also testified that other than a stuttering problem, he was unaware of any physical, mental or psychological problems that may have affected Malloy's progress in medical school. In addition, Dr. Oliver stated that although he did believe that Malloy was inclined towards medical school, he did not believe Malloy was adept at becoming a doctor. In the years subsequent to medical school, Malloy applied for admission to three additional medical schools, but was denied admission. Instead, Malloy was only able to obtain employment at several low-paying jobs, including a part-time job at Sears, Roebuck and Company, a job with the Norfolk City School Board, Lynn Shores Manor, Clearwater Health Service Corporation, and Sentara Nursing Centers in Norfolk and Chesapeake. At the time of filing his bankruptcy petition, Malloy had a gross monthly income of $961.15, a net monthly income of $693.55, and monthly expenses of $683.36 leaving a disposable income of $10.19 per month. Malloy's expenses include a mere $200 a month rent payment, no allotment for clothing and no car or health insurance payment. Malloy has made numerous attempts in the years since he left medical school to secure employment in a job in the medical field or a related field, but has not been successful in 41 his efforts. Malloy has submitted applications for jobs including several applications for a job as a laboratory technician, epidemiology program representative, sanitarian and a forensic scientist. Malloy has also applied for a job as a counselor in a crisis home and as a resident counselor. In addition, Malloy explored the possibility of becoming an insurance salesman, but was told that he would not make a good salesman. Malloy's efforts to obtain a job have included searching the newspaper for job openings and in the past, registering with the job service of the Virginia Employment Commission, although he is not currently registered. In their rejection letters, several of the employers informed Malloy that they had chosen a more qualified applicant than himself for the various jobs. Since medical school, Malloy's yearly income has fluctuated from approximately $3,700 a year to approximately $11,400 in 1991. CONCLUSIONS OF LAW The debtor, Malloy, seeks to have his student loan indebtedness owed to the Commonwealth of Virginia (State Education Assistance Authority) for Virginia Education Loan Authority (VELA) loans and the United States of America for Health Education Assistance Loans (HEAL) loans declared dischargeable in bankruptcy. The determination of whether Malloy's VELA loan indebtedness should be discharged in bankruptcy is governed by 11 U.S.C. § 523(a)(8). Section 523(a) provides in pertinent part: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt (8) for an educational benefit overpayment or loan made, insured or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution, or for an obligation to repay funds received as an educational benefit, scholarship or stipend, unless (A) such loan, benefit, scholarship, or stipend overpayment first became due more than 7 years (exclusive of any applicable suspension of the repayment period) before the date of the filing of the petition; or (B) excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtor's dependents. (emphasis added). 11 U.S.C. § 523(a)(8). Accordingly, the general rule is that educational loans are excepted from a debtor's discharge in bankruptcy. In re Washington, 41 B.R. 211, 213 (Bankr.E.D.Va.1984). However, § 523(a)(8)(A) provides for a debtor's educational loans to be discharged if seven years has passed since the loans first became due, excluding any years repayment was suspended. "When the loans first became due is simply a question of fact to be determined from the promissory notes signed pursuant to the student loan agreement." In re Brown, 4 B.R. 745, 746 (Bankr.E.D.Va.1980). The parties in the case at bar have stipulated that the VELA loans first became due within seven years of the filing date of Malloy's bankruptcy petition. Therefore, in order to obtain a discharge of his student loan indebtedness, Malloy must prove that he would suffer an "undue hardship" if he were unable to except his educational loans from discharge. 11 U.S.C. § 523(a)(8)(B); See In re Ballard, 60 B.R. 673, 674 (Bankr.W.D.Va.1986); In re Norman, 25 B.R. 545 (Bankr.S.D.Cal. 1982). The Bankruptcy Code, however, does not define the term "undue hardship". In re Ballard, 60 B.R. at 674. In addition, the legislative history of § 523(a)(8) offers minimal guidance as to what constitutes "undue hardship". In re Archie, 7 B.R. 715, 718 (Bankr.E.D.Va.1980). In deciding whether a debtor would suffer "undue hardship" if a student loan indebtedness was declared nondischargeable, "`the rate and amount of his future resources should be estimated reasonably in terms of ability to obtain, retain, and continue employment and the rate of pay that can be expected.'" 2 Appendix, Collier on Bankruptcy p. 140 (15th ed.), quoting the Report of the Commission on the Bankruptcy Laws of the 42 United States, H.R.Doc. No. 93-137, 93d Cong. 1st Sess., Pts. I and II (1973) quoted in In re Archie, 7 B.R. at 718; In re Andrews, 661 F.2d 702, 704 (8th Cir.1981). Furthermore, "`[t]he total amount of income, its reliability, and the periodicity of its receipt should be adequate to maintain the debtor and his dependents, at a minimal standard of living within their management capability, as well as to pay the educational debt.'" Id. Legislative history indicates that a "case by case analysis" should be used to determine whether the facts of a case are proper to discharge loans based on "undue hardship". In re Archie, 7 B.R. at 718; In re Washington, 41 B.R. at 215 ("A finding of undue hardship must, turn on the specific facts and circumstances of each case."). Courts that have had the opportunity to consider the meaning of undue hardship have generally concluded that "a finding of `undue hardship' requires the presence of `unique' or `extraordinary' circumstances which would render it unlikely that the debtor ever would be able to honor his obligations." In re Love, 33 B.R. 753, 754-55 (Bankr.E.D.Va.1983); In re Ballard, 60 B.R. at 675; Matter of Rappaport, 16 B.R. 615, 616 (Bankr.D.N.J.1981). Additionally, "`undue hardship' means more than an `unpleasantness' associated with the repayment of educational debt." In re Love, 33 B.R. at 755. Furthermore, "`undue hardship' is not based upon a present inability to pay but rather upon a `certainty of hopelessness' that future payments cannot be made." In re Love, 33 B.R. at 755, quoting in part In re Lezer, 21 B.R. 783, 789 (Bankr.N.D.N.Y.1982). "As the Bankruptcy Court noted in In re Kohn, 5 B.C.D. 419, 424, 20 C.B.C. 994, 1007 (Bankr.S.D.N.Y. 1979): ` . . . mere financial adversity without more will not do. There must be present some unique circumstances to render it less likely, or likely only without extreme difficulty, or unlikely at all that the bankrupt will within the foreseeable future be able to honor his commitment . . . Congress meant the extinguishment of student loans to be an available remedy to those seriously disadvantaged economically as a result of unique factors which are so much a part of the bankrupt's life, present and in the foreseeable future, that the expectation of repayment is virtually nonexistent unless by the effort the bankrupt strips himself of all that makes life worth living.'" In re Ballard, 60 B.R. at 675, quoting In re Kohn, 5 B.C.D. at 424. Relevant factors in determining whether a case of "undue hardship" exists include "the debtors' employment status, future earning potential, expenses in relation to income, medical problems or burdensome medical expenses, and other extraordinary expenses as well as the debtors' good faith." In re Washington, 41 B.R. at 215. "In short, the judge must not merely consider the current status of the debtor but must look into the future and try to estimate what his future situation will be. Has his education put him in a better position to obtain desirable employment? The court also considers good faith as an element has the debtor made any effort to try to repay the loan since it first became due?" In re Littell, 6 B.R. 85, 88 (Bankr.D.Or.1980). Additionally, "[t]he beneficial effects of the debtor's educational experience in terms of his employability is relevant to the inquiry into the issue of dischargeability of the student loan for undue hardship."[1]In re Yarber, 19 B.R. 18, 20 (Bankr.S.D.Ohio 1982). However, "[t]he obverse should also be a factor." Id. As the Court in In re Littell explained: In many cases student loans are granted through a college to students who have little aptitude or chance of succeeding in life. They may be taking a curriculum which will not lead to satisfactory employment. They may be encouraged to take courses, for instance, in education when the market is already overloaded 43 with teachers, many of whom cannot obtain jobs, but the college professor teaching those classes is in need of more students. If a college were to lose many of its students attending by benefit of student loans, this would be a serious loss to the college as it would represent a substantial diminution of income without a corresponding diminution of expenses. There is great pressure and temptation on the part of college authorities to encourage students to apply for loans and grant them when in effect it is not a sound economic thing to do. This should be a substantial factor in determining whether a student loan should be dischargeable. (emphasis added). In re Littell, 6 B.R. at 88. The determination of whether Malloy's indebtedness owed to the United States of America for Health Education Assistance Loans (HEAL) loans are dischargeable in bankruptcy is controlled by 42 U.S.C. § 294f(g) rather than the "undue hardship" provision of § 523(a)(8) the Bankruptcy Code. In re Green, 82 B.R. 955, 957 (Bankr.N.D.Ill.1988); In re Johnson, 787 F.2d 1179 (7th Cir.1986); In re Hines, 63 B.R. 731, 735 (Bankr.D.S.D.1986) ("[S]ection 294f(g), and not Section 523(a)(8), is paramount for determining dischargeability in Chapter 7 matters."). 42 U.S.C. § 294f(g) provides that: a debt which is a loan insured under the authority of this subpart may be released by a discharge in bankruptcy under title 11 only if such discharge is granted (1) after the expiration of the 5-year period beginning on the first date, as specified in subparagraphs (B) and (C) of section 294d(a)(2) of this title, when repayment of such loan is required; (2) upon a finding by the Bankruptcy Court that the nondischarge of such debt would be unconscionable; and (3) upon the condition that the Secretary shall not have waived the Secretary's rights to apply subsection (f) of this section to the borrower and the discharged debt.[2] 11 U.S.C. § 294f(g). Thus, under § 294f(g), a debtor may not have a HEAL loan discharged unless the debtor shows that five years have passed since the date the repayment period began, that it would be unconscionable for the Bankruptcy Court to find the loans nondischargeable, and that the Secretary has not waived his rights contained in § 294f(f). In re Green, 82 B.R. at 957; In re Johnson, 787 F.2d at 1181. Prior to trial, the United States of America admitted that more than five years have passed since the first date that Malloy was to begin repayment on his HEAL loans and that the Secretary of the United States Department of Health and Human Services has not waived his rights provided for in § 294f(f). Therefore, the only issue before this Court is whether the nondischarge of Malloy's HEAL loans would be unconscionable. The standard of "unconscionability" is stricter than the "undue hardship" standard of 11 U.S.C. § 523(a)(8). In re Quinn, 102 B.R. 865, 867 (Bankr.M.D.Fla. 1989); In re Green, 82 B.R. at 959; In re Hines, 63 B.R. at 736. Several Courts have looked to the plain meaning of the term "unconscionable" as it is defined in Webster's Dictionary "lying outside the limits of what is reasonable or acceptable" or "shockingly unfair, harsh, or unjust." In re Green, 82 B.R. at 959 citing Webster's Third New International Dictionary 2486 (3d ed. 1981); In re Hines, 63 B.R. at 736; In re Quinn, 102 B.R. at 867. Additionally, "Words and Phrases defines unconscionable as `conduct that is monstrously harsh and shocking to the conscience.'" In re Hines, 63 B.R. at 736. However, "what is unconscionable [in a bankruptcy context] defies precise definition and is better left to the discretion of the Bankruptcy Judge unconscionability is likened to beauty in that it appeals to the senses and 44 is found in the eyes of the beholder." Id. However, in determining whether the facts of a case rise to the level of "unconscionability," courts have considered the following aspects of the debtor: 1. income; 2. earning ability; 3. health; 4. educational background; 5. dependents, if any; 6. age; 7. accumulated wealth; and 8. professional degree. In re Quinn, 102 B.R. at 867. Applying this law to those facts, we conclude the debts are dischargeable in bankruptcy, an undue hardship by a preponderance of the evidence and not to discharge the Federal debt would be unconscionable, shockingly unfair, harsh or unjust. Simply put, from the record and from observing the demeanor of the debtor, he is not capable of having these debts cast upon him. (1) He holds a menial job taking home but $693.55 per month. (2) His living expenses are subminimal. By living with someone his rent is but $200 a month. There is nothing in his budget for clothing or health care insurance. He has no car. (3) While not currently registered with the Virginia Employment Commission, he has diligently sought better employment, in vain. Counsel for the defendants kept suggesting jobs he might obtain or ought to obtain, but offered none [they didn't have to]. It is wistful for them, for the Court, to dream a picture of what he ought to be doing. The reality is another matter. (4) While not physically, mentally or psychologically inhibited, he has a problem in society. (5) Although accepted at Eastern Virginia Medical School, he performed abysmally. More important, he lacked the basic ability to perform. Dr. Robert McCombs, Associate Dean for Student Affairs and Admissions, testified in deposition that Malloy had difficulty taking tests and exams, an inability to apply basic science information to clinical problems, and that Malloy needed such special attention not necessary for other students. "He simply could not function in that [medical school] setting." Further, Dr. McCombs said this ". . . many black students in particular come from families who are not as well educated and don't have the same kind of push as most white families, but I don't know whether that was a factor or not. I don't know what his background was." Dr. Richard M. Oliver, Assistant for Student Affairs, testified by deposition that Malloy's stuttering may have affected his evaluations in the hospital. (6) Counsel for the defendants believed during trial that Malloy was "hedging" on his answers, remote, not responsive. This trier of fact finds that was not so. The gap, it would appear, is a natural one reflecting difficulty in performing. The Court is of the opinion Malloy is fortunate to have the position he holds. A case may not be decided on sympathy, and we have not. It may not be decided on the enormity of the debt, and we have not. But by virtue of his track record since medical school and prospects for him based upon ability, it would be an undue burden and it would be unconscionable not to discharge the debt. Malloy does not lack the desire to improve or make more of his life, but it is unconscionable to impose the servitude of nondischargeability upon him. The debts are discharged in bankruptcy. IT IS SO ORDERED. NOTES [1] "The rationale for judicial scrutiny of the extent to which a student debtor benefits from his education is based on equitable considerations. Not only is an ex-student whose earnings income has been substantially increased by this education more likely to repay his loan, but he also is more indebted to the lender on a quantum meruit theory." In re Yarber, 19 B.R. at 20. [2] Subsection (f) provides: The Secretary may, after notice and opportunity for a hearing, cause to be reduced Federal reimbursements or payments for health services under any Federal law to borrowers who are practicing their professions and have defaulted on their loans insured under this subpart in amounts-up to the remaining balance of such loans. 42 U.S.C. § 294f(f).	{ "pile_set_name": "FreeLaw" }

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